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3 F.(20) 329 sentative of the decedent herein, nor yet In Admiralty. Libel by one Stewart could the present action be revived by the against the Pacific Steam Navigation Comissuance of the scire facias directed against pany. On motion to set aside service of and served in Cuba upon the executrix ap- summons. Denied. pointed under the laws of Cuba.

Silas B. Axtell, of New York City, for liHas the 1921 amendment, quoted above, belant changed the situation in regard to the case Kirlin. Woolsey, Campbell. Hickox & at bar? It would seem that the reading of Keating

of Keating, of New York City, for respondent. the language of the amendment answers the

on. The amendment made by the Con- LEARNED HAND, District Judge. Only gress sought to extend the provisions of the

one point is raised on this motion to set section and the jurisdiction of all courts of

aside the service of the summons, and that the United States in "and over executors

is that under section 20 of the Act of March * • • of any party, who dies before final 4 1915

al 4, 1915, as amended by section 33, Act June judgment or decree, appointed under the 5. 1920. c. 250. 41 Stat. 1007 (Como. St.

f any state or territory of the United Ann. Supp. 1923, § 8337a) commonly called States, and such courts shall have jurisdic- the Jones Act, no action can be brought tion within two years from the date of the against a corporation organized outside the death of the party to the suit to issue its United States. This position is taken, not scire facias to executors. * * appoint- because of any intimation in the general ed in any state or territory of the United language which creates the right of acStates which may be served in any judicial tion, for concededly it is not so limited, district by the marshal thereof. *

but because of the sentence with which the I do not think that the writ of scire facias section concludes, which reads as follows: issued under section 955, R. S. U. S., could “Jurisdiction in such actions shall be under have any effect outside the territory of the the court of the district in which the defendUnited States, and certainly its service in ant employer resides or in which his prinCuba would not avail to bring the alleged cipal office is located.” foreign executrix within the jurisdiction of

The Supreme Court, in the case of The Althe court in an action for personal judg

lianca (Panama R. Co. v. Johnson, 264 U. ment. If these views are sound, it is unnec

S. 375, 44 S. Ct. 391, 68 L. Ed. 748, 1924 essary to consider the questions of fact as

A. M. C. 551, said very aptly that this sento the Cuban law, applicable to executors.

tence was not happily worded, and the inThe writ of scire facias will be quashed,

felicity of the language causes the question

in this case, as well as in that. In the case and the service on Mrs. Sanchez, in Cuba,

I have just cited, the sentence is construed, will be set aside.

as obviously it must be construed, not as a question of the affirmative bestowal of jurisdiction, but merely as a question of venue, and I must therefore construe it in the same

sense here. The general bestowal of jurisSTEWART V. PACIFIC STEAM NAVIGA.

diction is to be found in the right sentence, TION CO.

the long one; it lays down what the right (District Court, S. D. New York. May 2, shall be, and against whom it shall exist. As 1924.)

I have already said, this language is gener

al. There is no indication of any purpose to Seamen om 29(5) - Jones Act, prescribing limit it to United States corporations, and it rights of seamen, held applicable to foreign

would be highly unreasonable to impute any steamship companies; “principal office." Jones Act March 4, 1915, prescribing rights su

such purpose to Congress, for the result of seamen, enforceable under section 20, as would be, not only to deprive American seaamended by Act June 5, 1920, § 33 (Comp. men of the protection which the act was St. Ann. Supp. 1923, § 8337a), in district in meant to give them when serving on foreign which the defendant employer resides or in chi

ships, but to give advantage to such ships which his principal office is located, held to authorize actions against corporations organized as against American ships. We all know outside the United States; the “principal of- that the purpose of Congress was directly fice" of such foreign steamship company being the opposite. principal place where it does business in the

That being very clearly the main purpose United States.

of the act, how am I to interpret the last (Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Princi

sentence, which confers jurisdiction? It pal Office.)

seems to me that this is very easy in the case of a foreign corporation. The phrase owner of the steamship Victoria, an Ameri"in which its principal office is located” can vessel, for limitation of liability. On clearly means in which the principal of- motion to dismiss petition and dissolve refice of the foreign steamship company is straining order. Denied. located within the United States. There The claimants move to dismiss petition alone the action can be brought, and if the herein and dissolve the restraining order section intends to cover foreign corporations, for the reason that the appraised value of for the reasons I have given, there the ac- the steamship. together with her freight tion alone will lie. It is no strain on that pending at the termination of the voyage, language to interpret it in the way which

exceeded the amount of the damages susI suggest. The principal office of a foreign tained or claims filed. and that there is no corporation will normally mean the prin- occasion for a limitation proceeding and decipal place where it does its business in the priving claimants of a trial by jury in asUnited States. It may be, and it might be sessing the damages. The appraisers herein in this case, that the defendant did too little fixed the value of the vessel at the terminato justify the assumption of any jurisdic- tion of the voyage at the sum of $50,000 tion at all. A certain amount of business and the gross freight pending $29,821.60. must be carried on within the United States The petition for limitation of liability allegin order to get any personal jurisdiction, es that steerage passengers were taken on and that is the imputation which this stat board as follows: At Nome. 56; Akutan, 1; ute carries along with others of the same False Pass. 64: Seward. 2: Latouche. 32: kind. But no such point is raised in the Drier Bay, 35; total. 190. It is then stated case at bar. It is conceded that, so far as that, after the arrival of the ship at the port the defendant goes, it subjects itself person- of Seattle, 30 of the steerage passengers beally to jurisdiction if that is what the sec

gan separate suits in the state court, each tion means; that being so, I am satisfied that

for $1,000, because of the petitioner's negliin this case it means what I have said.

gence in providing improper sleeping placTherefore the motion will be denied.

es, food, ventilation, uncomfortable and filthy quarters, and because of "thirst, starvation, privation, pain of body and anguish

of mind." Claims have been filed in this THE VICTORIA.

limitation proceeding by 43 claimants,

amounting to $45,000. It is contended by Petition of ALASKA S. S. CO.

the claimants that the petition should be (District Court, W. D. Washington, N. D. De- dismissed because the value of the ship and cember 23, 1924.)

pending freight is much greater than the No. 8855.

amount of the claims filed; that the time

within which to file claims has been limited 1. Shipping Ow209(2)-Dismissal of petition by this court, which limitation has expired:

for limitation of liability refused on the ground of probability of claims in excess of

and that in any event the restraining order value of vessel and pending freight.

should be dissolved and the claimants perDismissal of petition for limitation of lia- mitted to pursue the remedy invoked in the bility will be refused on the ground of proba- state court and have the damage assessed bility of claims in excess of value of vessel and by a inry

by a jury. pending freight, though the claims for bad condition in steerage common to all, filed by about Bogle & Bogle, of Seattle, Wash., for peone quarter of the steerage passengers, is much titioner. less, and the time for filing claims, as fixed by William Martin. of Seattle, Wash.. for order of the court in the limitation proceeding, has expired, as such order will have no force claimants and respondents. if such proceeding be dismissed.

NETERER, District Judge (after stating 2. Shipping Om 209(1)-Duty of federal court

ing the facts as above). [1, 2] The motion to adjudicate rights and restrain litigation claims in state court, where shipowner en must be denied. From the statements in the titled to limitation of liability.

several claims filed it is clear that the conIt is the duty of the federal court to adju- dition that obtained in the steerage was dicate the rights between the parties and re

common, and, if these claimants are entistrain litigation of the claims in the state court,

tled to recover, other passengers may have where shipowner has right to a limitation of liability.

equal right, and the court cannot say that,

if 43 claimants are entitled to $45,000, excluIn Admiralty. In the matter of the peti- sive of costs, the remaining 145 would not tion of the Alaska Steamship Company, be entitled to more than the difference be

3 F.(20) 331 tween $45.000 and $79,821.60. the value of vented a device for use in the mill, which he the ship and freight pending.

patented, using the materials of defendant and

the services of its employees in experimenting If the petitioner has a right to nmitha and in perfecting the invention, which was used bility, it is the duty of this court to adju- in the mill with his consent so long as he redicate the rights between the parties and not mained superintendent, defendant has an irrev

ocable license for its use. shirk responsibility by permitting claims foro damages to be litigated in the state court. In Re. East River Towing Co., the Supreme In Equity. Suit by William F. Scott Court, on December 8, 1924, said:

against the Madison Woolen Company and “The choice of a jury trial is given when others. Decree for defendants. things take their ordinary course, not to James H. Thorne, of Madison, Me., and break in upon the settled mode of adjust- Wm. R. Pattangall, of Augusta, Me., for ment when the ship is given up."

plaintiff. The Dauntless (D. C.) 212 F. 455, affirmed C. W. & H. M. Hayes, of Foxcroft, Me., in Shipowners' & Merchants' Tugboat Co. v. and Wm. H. Gulliver, of Portland, Me., for Hammond Lumber Co., 218 F. 161, 134 C. defendants. C. A. 575, certiorari denied 238 U, S. 633, 35 S. Ct. 938, 59 L. Ed. 1498, has no appli- PETERS. District Judge. This is a suit cation. The liability there was for a single for infringement of a patent, asking for an elaim, and the value of the ship largely ex- accounting, damages, and an injunction. ceeded the amount thereof. In the Rosa The Madison Woolen Company is the only (D C) 53 F. 132, it was held a petition defendant served with process or appearing. in an admiralty court to limit liability and The defense principally relied upon is an to restrain the prosecution of a pending ac- implied license to use the patented process. tion must show the existence or probability

I find, from the evidence, the following of existence of other claims and need of an foi apportionment.

The plaintiff was employed as superinThe order of this court fixing or limiting

m tendent in the mill of the defendant, the

to the time within which claims may be filed is i

Madison Woolen Company, from 1905 to not a bar to the prosecution of an action

1920. He was paid a salary, had no written

1 within the period limited by statute if this

contract of employment, and was subject to proceeding should be dismissed. Hence

discharge at any time. there is a probability of claims in excess of

In 1909 the managing director of the comthe value of the vessel and pending freight,

pany called the attention of the plaintiff to and the right of limitation is not defeated

the fact that other mills were using to adby the fact that the claims upon which suit

vantage a decating cloth, or leader, so called has been commenced do not amount to the

(an improvement in which is the subject admitted value of the ship where there is a

& of the invention in suit), and asked him to probability that there may be other claims.

o investigate the matter. The plaintiff both The Defender (D. C.) 201 F. 189.

investigated and experimented; experiments Proceedings for limitation of liability may

in the mill extending over several months. be maintained where the claims are less than

He obtained various leaders and tried them the value of the vessel where the aggregate out in the mill. Noting their deficiencies, of the claims appears beyond question from

he finally, in 1910, devised one that served the petition or otherwise. The George W.

the purpose, and it was used in the mill unFields (D. C.) 237 F. 403.

til the plaintiff left his employment in 1920. The motion is denied.

He had obtained a patent in 1914 on application filed in 1910. Nothing was said about any charge for the use of the process while the plaintiff was employed as superintend

ent. At the trial he was asked: SCOTT v. MADISON WOOLEN CO. et al.

“Q. Did you give them the right to use it (District Court, D. Maine, S. D. January 24, while you were there? 1925.)

A. I used it myself there, making me a No. 863.

success and the mill a success. There was

never any agreement or anything about it.” Master and servant 62-Employer held to

The plaintiff further said in his testihave irrevocable license to use invention made and patented by employee.

mony: Where complainant, while superintendent “While I was there I was satisfied for of defendant's mill and receiving a salary, in them to use it and derive the benefit of it,

rert i fredsst.

which added to my reputation and promi- Also, according to the plaintiff's own acnence, or whatever you may term it.” count, he acquiesced in the defendant's use

The plaintiff personally paid the expense of this leader cloth for some six years after of obtaining the patent. The experiments the date of the patent, receiving his salary and work in making and perfecting the lead- all the time. This feature is held signifier were done wholly with the labor and cant in the Lane & Bodley Case. material of the defendant company, includ- I believe the facts stated amply warrant ing the time of the plaintiff, that of the the finding of an implied irrevocable license master mechanic, and others in the employ- or shop right, and that it would be inequiment of the company. If a failure had re- table to grant an injunction. Consequently sulted, the loss would have been that of the the bill will be dismissed, with costs. company.

No objection was made by the plaintiff to the use in the mill of the leader during the six years between the date of the patent and his leaving the mill.

SHERWOOD V. AMERICAN SUGAR RE. Two instances were testified to by the

FINING CO. plaintiff in which the mill sold, through him (District Court, E. D. of New York. October as superintendent, pieces of the leader. The

21, 1924.) last sale was in 1920, just before the plain

Shipping C 49(3)-Hirer of derrick boat, li. tiff left the employ of the mill, and was real able for extra charge if it worked more than ly a sale made to himself, but camouflaged eight hours daily, held not entitled to set off as a sale to a third party, so that he, the

night shifts against days when it did not

work. plaintiff, might have a sample of the cloth

One hiring derrick boat for certain number in his new position at another mill.

of days, during which, if needed, it might be The facts in this case bring it within the worked eight hours, and who was liable for class of cases typified by Lane & Bodley

extra charge if worked more than eight hours

on any single day, held not entitled to set off Co. v. Locke, 150 U. S. 193, 14 S. Ct. 78, 37

night shifts, when boat was worked, against L. Ed. 1049, McClurg v. Kingsland, 42 U. days when it did not work at all. S. (1 How.) 202, 11 L. Ed. 102, and Solomons v. United States, 137 U. S. 342, 11 S. In Admiralty Libel by E. C. Sherwood Ct. 88, 34 L. Ed. 667, in which it has been against the American Sugar Refining Comheld, as quoted from the Solomons Case in pany. On exceptions of respondent to comthe Lane & Bodley Case:

missioner's report. Exceptions overruled, “When a person in the employ of anoth- and report confirmed. er, in a certain line of work, devises an im- See, also, 287 F. 721. proved method or instrument for doing that Macklin. Brown & Van Wyck of New work, and uses the property of his employ York City (Paul Speer, of New York City, er and the service of other employees to de- of counsel), for libelant. velop and put in practicable form his inven. Haight. Smith, Griffin & Deming, of New tion, and explicitly assents to the use by York City (Frank A. Paul and Clarence the employer of such invention, a jury, or Bishop Smith, both of New York City, of a court, trying the facts, is warranted in counsel), for respondent. finding that he has so far recognized the obligations of service flowing from his em- GARVIN, District Judge. Exceptions to ployment and the benefits resulting from his a commissioner's report, which finds that the use of the property, as to have given to such sum of $2,859.90 is due the libelant from employer an irrevocable license to use such the respondent for hire of the former's derinvention."

rick boat for a period of 68 days, during See, also, Standard Parts Co. v. Peck, which extra shifts of labor were used in 264 U. S. 52, 44 S. Ct. 239, 68 L. Ed. 560, addition to the ordinary working hours per 32 A. L. R. 1033.

day, have been filed by the respondent. This case is also very similar to Callahan The court has read with great care the V. Capron Co. (D. C.) 280 F. 254, where testimony produced at the hearing before Judge Brown says:

the commissioner and is of the opinion that "To enjoin the defendant from the use of the evidence supports his findings. Libelthis device would result in depriving it of ants' witnesses were men who actually workthe benefit of the services and time of its ed on the boat and they very clearly estabforeman and tool maker, for which it has lish that the boat worked at least two shifts paid them."

per day, often three shifts, from July 29,

8 F.(20) 333 1920, to October 16, 1920. The testimony of In Equity. Suit by the Palmer Brothers respondents' witnesses cannot be accorded Company against D. E. Weaver, Chief of the great weight, since they were not so inti- Bureau of Inspection in Pittsburgh of the mately connected with the boat, and were Department of Labor and Industry of the not able to state very definitely from their Commonwealth of Pennsylvania. On moown recollections the exact time the boat did tion for preliminary injunction. Denied. work, and they did not produce at the hear

Edwin W. Smith, of Pittsburgh, Pa., for ing records which they claimed would have

plaintiff. borne out their statements that the boat did

E. Lowry Humes, of Pittsburgh, Pa., for not work continuously two and three shifts

1 defendant. per day.

Respondent cannot claim that the night Before WOOLLEY, Circuit Judge, and shifts should offset the days when the boat SCHOONMAKER, District Judge. did not work at all, during some period of the entire contract. The respondent paid PER CURIAM. This case came on for the libelant for the use of the boat for a hearing on motion for an interlocutory certain number of days, during which it injunction to enjoin the enforcement of might be used, if the respondent needed it, an Act of Assembly of Pennsylvania, for eight hours of work. It could not be No. 314. approved June 14. 1923 (P. used for more than eight hours of work on L. 802: Pa. St. Supp. 1924. § 14631al et any single day without an extra charge be- seq.), entitled "An act relating to mattresses, ing made. Such was the ruling of this court

pillows, bolsters, feather beds, comfortables, in its opinion dated December 15, 1922.

cushions, and upholstered furniture; reguThe court has disregarded all testimony lating the

on lating the making, remaking, renovating, introduced at the hearing by which respond

sterilizing, disinfecting, sale, leasing, delivent sought to persuade the commissioner to

ering, and consigning thereof, and the posplace an interpretation upon the contract at

session thereof with intent to sell, lease, devariance with the interpretation which the

liver, or consign,” because of its alleged viocourt has already adopted in the opinion

lation of the Fourteenth Amendment to the aforesaid.

Constitution of the United States in its proThe exceptions to the commissioner's re

hibition of the use of shoddy and secondport are overruled, and the report is con

hand materials (unless such secondhand hredd e 66 588 6 4 materials are properly sterilized) in matfra 450 usduul

tresses, pillows, bolsters, feather beds, com

p. fortables, cushions or articles of upholstered PALMER BROS. CO. v. WEAVER, CI

furniture, and also because it is alleged that Bureau of Inspection. *

the act violates the interstate commerce (District Court, W. D. Pennsylvania. March clause of the Constitution, in that it imposes

20, 1924.) 770 20412 an undue burden on interstate commerce by

No. 1035,76 F AI4its inspection and tagging provisions. Commerce 50_Constitutional

2400. Upon due consideration of the injunction (1), 296 (1)-Inspection am 2-Pennsylvania affidavits and the proofs offered at the hearact requiring inspection of mattresses, etc., ing of this motion, we find ourselves unconheld constitutional.

vinced that the act complained of is so palAct Pa. June 14, 1923 (P. L. 802; Pa. St. pably unreasonable and arbitrary that we Supp. 1924, § 14631al et seg ), regulat. ing the making of mattresses, pillows, etc., pro

• ought to grant the interlocutory injunction hibiting the use of shoddy or secondhand mate. prayed for, and we therefore deny the morials therein unless sterilized, and requiring tion for an interlocutory injunction, but in inspection of such articles, held, on motion for so doing express no opinion on the merits preliminary injunction, to restrain its enforcement, not in violation of Const. Amend. 14, or

of the controversy, as they may develop on article 1, § 8, cl. 3.

final hearing. *Decree affirmed 45 S. Ct. 128, 69 L. Ed. --,

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