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Thereupon the agent of the United States

Mail Steamship Company, which was oper. TERMINAL FUMIGATING CO. v. UNITED ating the vessel under the usual charter sales STATES.

agreement with the Shipping Board, arrang. (District Court, D. Massachusetts. May 22, ed with the libelant to do the fumigating, 1923.)

stating that it had been ordered by the

health officer. The baggage was thereupon 1. Maritime liens Om9, 25-Services rendered in fumigating baggage of passengers held to brought to the libelant's plant, where it was give right to lien; "necessaries."

fumigated, and it was afterwards returned Services rendered on employment by its to the steamer, or delivered at the dock agent in fumigating the baggage of a steam- where she had gone. By reason of this fuship, required by the United States medical of, migation she was enabled to discharge her ficer of the port before she would be allowed to land her passengers, held to give a right to a passengers and their baggage, which would

No lien against the vessel, both under the general not have been permitted without it. admiralty law and as “necessaries" under Mer- question is made about the amount charged. chant Marine Act, § 30, subsec. P (Comp. St. The contentions of the respondent are (1) Ann. Supp. 1923, § 814644000).

that the service did not give rise to a mari(Ed. Note.- For other definitions, see Words time lien; and (2) that, if it did, as the liand Phrases, First and Second Series, Neces

belant could have learned by the exercise of saries.)

due diligence that the steamer was chartered 2. Maritime liens Om30Failure to inquire as upon such terms that the charterer had no

to ownership of vessel held to defeat right to right to subject her to a lien, the libelant lien.

cannot enforce the lien against the vessel. One rendering service to a steamship being

[1] As to (1): What services to a vesoperated under a charter sale contract with the Shipping Board, which prohibited the charterer sel are of such character as to give rise to from subjecting her to liens, who made no in- a maritime lien against her is a question on quiry as to her ownership, held not entitled to a which there has been much difference of julien under Merchant Marine Act, & 30, subsec. dicial opinion. I doubt whether it is posR (Comp. St. Ann. Supp. 1923, § 814644 pp). sible to state a short and exact rule. In The

Onore, Fed. Cas. No. 10,538, Judge BeneIn Admiralty. Suit by the Terminal

dict held that the service of a cooper in putFumigating Company against the United States, as owner of the steamship Susque- rendered partly upon the vessel and partly

ting the cargo of a ship into landing order, hanna. Petition dismissed.

upon the wharf, gave rise to a lien, “because Powers & Hall, of Boston, Mass., for li- it is a service necessary to enable the ship belant.

to earn freight, which is the sole object for Charles P. Curtis, Jr., Sp. Asst. U. S. which the ship is constructed and navigated. Atty., of Boston, Mass.

The contract of a ship is to carry and de

liver the cargo." In The Wivanhoe (D. C.) MORTON, District Judge. This is a suit 26 F. 927, it was held that the services of against the United States, as owner of the a compress company in compressing cotton, steamer Susquehanna, to enforce an alleged so that the vessel could take the specified right in rem against the steamer for services number of bales, gave rise to a maritime in fumigating the baggage of her passen- lien. In Constantine v. Schooner River gers. It is submitted on an agreed state- Queen (D. C.) 2 F. 731, it was held that ment of facts.

services in weighing, inspecting, and measThe Susquehanna sailed from a foreign uring cargo, preparatory to its delivery, port, bound to New York, with passengers , which were to be done by the vessel, gave and their baggage. On account of conges- rise to a lien. In Roberts v. Bark Windertion in the port of New York, she put into mere (D. C.) 2 F. 722, charges for medical Boston, intending to discharge there her pas- attendance to a sailor are instanced as servsengers and their baggage, and transfer ices unquestionably giving rise to a lien. In them from that point to New York by rail. The Ascutney, 278 F. 991, reversed upon anOn her arrival at Boston, the port surgeon other point, 289 F. 802, 1923 A. M. C. 412, of the United States Public Health Service charges for fumigating the vessel were held refused to allow the steamer to dock until all entitled to a lien. baggage on board had been fumigated, and The situation of the Susquehanna on her ordered such fumigation to be done. This arrival in Boston was that until she had action was taken in order to prevent the en- passed quarào tine she was under the control try of typhus germs into the United States. of the health authorities; they refused to

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3 F.(20) 1018 permit any of the baggage to be landed until

in re BURTON S. S. CO. it had been fumigated; and it was, practi- (District Court, D. •Massachusetts. February cally speaking, out of the question to land

2, 1925.) the passengers without any of their bag

No. 32676. gage. It was the steamer's duty to deliver the baggage, and the burden was upon her Maritime liens en 25–Use of canal held a

"necessary.” to perform such acts as were required in order to make the landing legal on her part. P (Comp. St. Ann. Supp. 1923, § 814644000),

Under Merchant Marine Act, $ 30, subsec. She was not in her home port, which was amending Act June 23, 1910, § 1, and broadenNow York.

ing its scope as to necessaries, the use of Cape In view of the decisions above referred to Cod Canal is a “necessary," and the charge for and of the principles of law on which they such use is secured by a maritime lien.

(Ed. Note.-For other definitions, see Words rest, it seems to me that the services per- and Phrases, First and Second Series, Necesformed by the libelant were of such charac- sary.) ter as to give rise to a maritime lien against the steamer, both under the general admi

In Bankruptcy. In the matter of the ralty law and, as “necessaries,” under the Burton Steamship Company, bankrupt. On Maritime Lien Act of 1910 (36 Stat. 604 review. of order of referee. Reversed. [U. S. Comp. Stat. 1916, § 7783 et seq.]) Frederick Foster, of Boston, Mass., for and the Merchant Marine Act of 1920 (41 Elizabethport Coal & Supply Co. Stat. 988 (Comp. St. Ann. Supp. 1923, 88 William J. Nolan, of Boston, Mass., for 814644-814644]).

Boston, Cape Cod & New York Canal Co. [2] As to (2): There remains the ques

LOWELL, District Judge. This is a petition whether this lien is unenforceable because of the libelant's failure to exercise due tion to review an order of Mr. Referee

Black. diligence to ascertain that the Susquehanna was under charter by the terms of which considerable doubt and difficulty, which, so

The proceeding involves a question of the charterers were forbidden from imposing far as I am aware, has never been decided. liens upon her. The agreed statement re

It relates to the true construction of the cites that “the libelant had no actual notice Maritime Lien Act of 1920 (Comp. St. 'Ann. of any provision of said sales agreement.” Supp. 1923, § 81461/4 et seq.). The section It does not disclose that the libelant made involved is an amendment of the prior Act any investigation, or even inquiry, as to the of June 23, 1910 (Comp. St. 7783 et seq.). ownership of the steamer, or the relation in The former act was passed to remedy an inwhich the United States Mail Steamship tolerable situation which had arisen in the Company stood to her. There is no reason courts of the United States over the very to suppose that an inquiry, if made, would varying decisions which had been rendered not have disclosed the truth. In The Clio, on the question of liens on vessels for re43 F. 181, 1923 A. M. C. 47, 260 U. S. 482, pairs and supplies. The distinction had 43 S. Ct. 181, 67 L. Ed. 361, it is said: “The been drawn between a vessel in her home libelants did not know any facts tending to port and a vessel in a foreign port; this gave show that the corporation did not own the rise to conflicting rules of law. There was vessel, and so far as appears made no in- also a discrepancy in the decisions as to quiry or effort to ascertain what the facts when and under what circumstances the remight be” (page 48, Holmes, J.). Refer- pairs or supplies should be held to have ring to the language of section 3 of the act been furnished on the credit of the vessel. of 1910 (Comp. St. § 7785), the court said State statutes of various kinds further com

plicated the matter. The various confusing in that case : “We regard these words as too plain for argument.

questions above outlined have been very They call

ably described by Fitz Henry Smith, Jr., upon him (the materialman] to inquire.” Esq., in 21 Harv. Law Rev. 332, and 24 The charter party in the present case is, on Harv. Law Rev. 182. the point under discussion, identical with

The act of 1910 was passed to clarify this that under which the Clio was being operat- situation. It did away with the state stated, and I am unable to distinguish this case utes, with the distinction between home and from that. See, too, The Ascutney, 289 F. foreign ports, and also with the necessity 802, 1923 A. M. C. 412; The Awensdaw, of proving that the credit of the vessel had 289 F. 803, 1923 A. M. C. 505; The Thordis, been relied on. On the latter point, the act 290 F. 255, 1923 A. M. C. 581.

designated certain persons who alone were Petition dismissed.

authorized to bind the vessel. A further

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element of confusion, not yet entirely re- I agreed with Judge Cushman's ruling. I moved, was the question of what happened see no reason to change this opinion. The when a vessel was chartered. We are not decision in The Suelco (D. C.) 286 F. 256, concerned with this in the present case. seems opposed to that case, but the learned

The original act of 1910 was strictly con- judge who delivered the opinion did not restrued by the courts who took a narrow view fer to the difference in phraseology between of the statute. The Federal Maritime Lien the two acts of Congress. On the general Act, by John W. Griffin, Esq., 37 Harv. Law subject as to what services or supplies give Rev. 15.

rise to liens under the act of 1920, see The The decision in the case at bar depends Susquehanna (1923) A. M. C. 643, 3 F.(2) on the meaning of the amendment of 1920. 1014; The Egeria (1924) A. M. C. 126, 294 The phraseology of the amendment is signif. F. 791. icant. The original act was as follows: The question then comes up: Is the use

"Any person furnishing repairs, supplies, of a canal a necessary within the broadened or other necessaries, including the use of scope of the act of 1920? In Monongabela dry dock or marine railway, to a vessel, Co. v. Tugboat Bob Connell (C. C.) 1 F. whether foreign or domestic, upon the order 218, Judge McKennan held, very properly of the owner or owners of such vessel, or of under the then existing law, that the use of a person by him or them authorized, shall locks in the Monongahela river did not give have a maritime lien on the vessel which rise to a lien on the tugboat Bob Connell, may be enforced by a proceeding in rem, as the boat was in its home port. The latand it shall not be necessary to allege or ter point might seem doubtful, but as the prove that credit was given to the vessel.” Monongahela river is near Pittsburgh, where 36 Stat. 604 (Comp. St. § 7783).

the vessel hailed from, it is not surprising Under this act it was held that towage was that Pittsburgh should consider that river as not covered by the act, because the act read, part of its territory. The learned judge, "repairs, supplies and other necessaries, in- however, said: cluding the use of dry dock.

"It cannot be doubted that lockage [& eral courts held that the words "and other conveniently invented word, the meaning of necessaries” should be limited to a class sim- which is apparent], is of the same general ilar to that indicated by the words “repairs nature and in the same category with the and supplies,” and that therefore towage, claims involved in these cases." and also stevedoring, did not come within The judge was there referring to The the terms of the statute. The J. Doherty General Smith, 4 Wheat. 438, 4 L. Ed. 609, (D. C.) 207 F. 997; The Muskegon (D. C.) to The Lottawanna, 21 Wall. 558, 22 L. Ed. 275 F. 117; Griffin, op. cit.

654, and to Ex parte Easton, 95 U. S. 68, 24 In the amendment of 1920 the Congress L. Ed. 373. The first of these cases involvadded "towage” and changed the position of ed. supplies; the second, mariner's wages, the words "and other necessaries," and the salvage, supplies, and repairs; and the third statute now reads as follows:

involved wharfage. It is thus apparent that "Any person furnishing repairs, supplies, Judge McKennan regarded "lockage" as a towage, use of dry dock or marine railway, necessity. That case is not precisely an auor other necessaries, to any vessel, whether thority for the present onė, since the Monforeign or domestic, upon the order of the ongahela river could not have been used by owner of such vessel, or of a person author- the tugboat without using the lock, while ized by the owner, shall have a maritime lien in the present case the steamboat could have on the vessel, which may be enforced by gone around Cape Cod without using the suit in rem, and it shall not be necessary to canal. This hardly seems, however, a suffiallege or prove that credit was given to the cient reason for making a distinction. In vessel.” Subsection P of section 30, Act of my opinion the act of 1920 was passed by June 5, 1920, 41 Stat. 1005 (U. S. Comp. Congress to give a more extended scope to St. Ann. Supp. 1923, 8 814644000).

the original act. I am therefore of the opinIt will be noticed that all of the things ion that the charges for the use of the canal which are specifically mentioned are now gave rise to a lien on the steamship Carisco. enumerated before the words "and other nec- As I have said before, the question is not essaries.” Judge Cushman, in the case of free from doubt, and it is with some hesitaThe Henry S. Grove (D. C.) 285 F. 60, held tion that I overrule the finding of the learnthat this showed a congressional intention to ed referee. enlarge the scope of the statute. In The Petition allowed; finding of Mr. Referee Neponset (D. C.) 300 F. 981. I said that Black reversed.


1017 3 F.(20) 1017 THE NEWPORT.

she sailed, or due diligence to make her so G. AMSINCK & CO., Inc., v, PACIFIC MAIL

had been exercised." S. S. CO.

So it was held in The Manitoba (D. C.)

104 F. 145. In the former case, also, it is (District Court, N. D. California, S. D. February 4, 1925.)

said “that fault in management is no de

fense when there is lack of due diligence No. 18057. before the vessel breaks ground.”

But a Shipping 138-Liability for damage to car- lack of due diligence in what? Clearly in

go; error in navigation of vessel; "manage- putting her in a seaworthy condition for ment of the vessel."

the voyage. But it seems to me that this An engineer of a steamship, which was

case is fundamentally different in two parloaded and ready to sail, received an order to turn steam into the winches to handle the lines ticulars: in casting off, but by mistake turned a smoth- (1) The evidence shows that the act of adering valve, which admitted steam into the mitting the steam to the winches was a part hold, and damaged cargo therein. Held, that of the voyage, in that the winches were the act of turning steam into the winches was a part of the voyage, and that the error of the used to handle the lines in casting off. engineer was one "in the management of tbe (2) The compartments were in good convessel,” for which she and her owner were dition, and were only rendered unfit by an exempted from liability by Harter Act, § 3

error of the engineer in the management of (Comp. St. $ 8031).

the vessel. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Man- In other words, opening the wrong cock agement.)

in the act of casting off the lines is not alone

different as to the time, thus making a clear In Admiralty. Suit by G. Amsinck & Co., distinction between this and the cases cited Inc., against the Pacific Mail Steamship supra, but also in the essential nature of Company and the American Steamer New- the act of negligence. It might well be said port. Decree for respondents.

that a ship with er portholes open was Thacher & Wright, of San Francisco, not seaworthy at the commencement of the Cal., for libelant.

voyage, and, after all, that is the test of the McCutchen, Olney, Mannon & Greene, of distinction between the first and third secSan Francisco, Cal., for respondents. tions of the act (sections 8029-8031). But

to admit steam into the wrong line in the PARTRIDGE, District Judge. Libelant actual commencement of the voyage is quite shipped a quantity of coffee on the steamer as essentially an act of an officer in the Newport from Cristobal to San Francisco. management of the vessel. The evidence shows that, when the ship was The distinction between acts done in hanloaded, and ready to sail, the third engineer dling the ship and those in connection with received orders to turn steam into the winch- the cargo is clearly pointed out by Sir John es, in order to handle the lines in casting Gorell Barnes in The Glenochil, (1896] P. off. As he was about to do so he got the 10, where, speaking of the Harter Act, he stand-by bell, and in his hurry turned on a says that. "If those sections are looked at, valve which admitted steam into the hold, there will be found a strong and marked where the coffee was stowed. This was a contrast in the provisions which deal with "smothering" valve, intended to be used the care of the cargo, and those which deal only in the event of a fire in the hold. This with the management of the ship herself.” steam damaged the coffee, and it is admitted Further, in discussing the act, Judge Gilthat the act of the engineer was negligence. bert, in Steamship Wellesley Co. v. C. A. The sole defense therefore is under the third Hooper & Co., 185 F. 733, 108 C. C. A. 71, section of the Harter Act (Comp. St. § says "that the voyage does not commence 8031).

until the cargo is on board and the vessel The Supreme Court, in International Nav- ready to sail.” The Glenochil is at least igation Co. v. Farr, 181 U. S. 218, 21 S. inferentially approved by the Supreme Ct. 591, 45 L. Ed. 830, has held that dam- Court in The Germanic, 196 U. S. 589, 25 age caused by water coming in a porthole S. Ct. 317, 49 L. Ed. 610, where Mr. Justice negligently left open at the commencement Holmes says: “We see no reason to criticize of the voyage constitutes unseaworthiness this decision, and therefore lay on one side under the first section of the act. Mr. Chief at once the fact that the vessel had come Justice Fuller points out that, “even if the to the end of her voyage and was in dock.” loss occur through fault or error in man- I think, therefore, that the decree should agement, the exemption cannot be availed be with the respondents; and it is so orderof, unless the vessel was seaworthy when ed.



late to a process of increasing or maintaining In the Matter of the Application of William

the amount of nitrocotton dissolved in nitroE. ANDREE. (Court of Appeals of the Dis- cellulose solutions, while maintaining a degree trict of Columbia. Submitted January 15, of fluidity sufficient to permit the use of the 1925, Decided February 2, 1925.)

No. 1716. solution as a spray or lacquer. There are W. E. Andree and J. R. Milburn, both of Cleve- two important limitations; that the claims inland, Ohio, for appellant. T. A. Hostetler, of volve a process for dealing with highly conWashington, D. C., for Commissioner of Pat- centrated solutions, and for changing them to a ents. Before MARTIN, Chief Justice, ROBB, fluidity sufficient for their use as a lacquer Associate Justice, and BARBER, Judge of the

or spray. Claim No. 1 is sufficiently illustra. United States Court of Customs Appeals.

tive and reads as follows: "1. A process for ROBB, Associate Justice. This is an appeal cellulose having sufficient Auidity to be used

making highly concentrated solutions of nitrofrom a decision of the Patent Office refusing four of the five claims of the application for ing a mixture of nitrocotton and solvent with

as a lacquer or spray, which consists in treatpatent, which involves alleged improvements heat and pressure." in a garment press. The Examiner and the the senior party established a constructive

It clearly appears that Examiners in Chief rejected all the claims, filing date of December 6, 1918, by reason of but the Assistant Commissioner allowed claim the filing of a Swedish application for the same No. 3, because, in his view, the construction invention. He therefore is entitled to, and there set forth involved ingenuity beyond mere

was given, that date for conception and conmechanical skill. An examination of the record, in the light of appellant's brief and argu- of Interferences held that Phillips, while first

structive reduction to practice. The Examiner ment, fails to convince us that the Patent Of

to conceive, was the last to reduce to practice, fice erred in its decision, which therefore is

and was lacking in diligence, and therefore affirmed. Affirmed.

awarded priority to the senior party. The Board 'found that Phillips conceived and redue

ed to practice in 1914, and that, as he neither 2

abandoned nor concealed the invention there

after, he was entitled to an award of priority, In the Matter of the Application of Leon and so ruled. The Assistant Commissioner, in LILIENFELD. (Court of Appeals of the Dis

a carefully prepared opinion, concurred in the trict of Columbia. Submitted January 14, findings of the Examiner of Interferences, and, 1925. Decided March 2, 1925.) No. 1701. after an examination of the record in the light F. F. Church, of Rochester, N. Y., for appel- of appellant's argument and brief, we are conlant. T. A. Hostetler, of Washington, D. C., vinced of the correctness of the conclusion for Commissioner of Patents. Before MAR- reached. The opinion of the Assistant ComTIN, Chief Justice, ROBB, Justice, and BAR

missioner is so comprehensive and satisfactory BER, Judge of the United States Court of that we adopt it, without further discussion, Customs Appeals.

and therefore affirm the decision. Affirmed. PER CURIAM. Appeal from a Patent Office decision refusing to allow six claims of appellant's application for a patent. Having

4 carefully examined the record, in the light of

Frederick A. STEVENS, Appellant, v. Steappellant's argument and brief, and finding no error therein, we are content to rest our

phen J. CLULEE, Appellee. (Court of Apdecision upon the views expressed by the peals of the District of Columbia. Submitted tribunals of the Patent Office. The decision January 13, 1925. Decided March 2, 1925.)

No. 1696. therefore is affirmed.

David Rines, of Boston, Mass., for appellant, R. S. Blair, of New York City, J. H. Kilcoyne, of Washington, D. C., and H.

G. Manning, of Waterbury, Conn., for appellee. 3

Before MARTIN, Chief Justice, and ROBB Gladys V. PHILLIPS, Administratrix of the and VAN ORSDEL, Associate Justices. Estate of Alexander W. Phillips, Deceased, PER CURIAM. Appeal from concurrent deAppellant, Olof CARLSSON, Appellee. cisions of the Patent Office in an interference (Court of Appeals of the District of Columbia. proceeding, in which priority was awarded the Submitted January 14, 1925. Decided Febru

The invention relates to a ary 2, 1925.) No. 1698. F. A. Bower and C. V. mounting for eyeglasses, and is set forth in a Edwards, both of New York City, for appel- single broad count, originating with Stevens lant. Samuel Herrick, of Washington, D. C., . The right of Clulee to make the claim was for appellee. Before MARTIN, Chief Justice, challenged, but the Law Examiner sustained Robb, Associate Justice, and BARBER, Judge that right, basing his decision upon the failure of the United States Court of Customs Ap- of Stevens to specify in the claim the limitapeals.

party Clulee.

tions contended for in his motion for dissoluROBB, Associate Justice. This is an appeal tion. Each of the three tribunals of the Patfrom a decision of the Patent Office in an in- ent Office has exhaustively and satisfactorily terference proceeding awarding priority to the discussed the questions involved, and each bas senior party. The claims, two in number, re- reached the conclusion that Clulee is entitled

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