Frederick M. Knowles and Others, 275 Fed. 582, in the Southern district of New York, in which the bill was dismissed upon a decision filed May 18, 1921, by Knox, District Judge. As the principles of law involved have been recently passed upon in the case of Danks v. Gordon, 272 Fed. 821, decided by the Circuit Court of Appeals upon the 2d day of March, 1921, and the case of Silverman v. Sunrise Pictures Corporation, 273 Fed. 909, decided by the Circuit Court of Appeals on the 11th day of May, 1921, it is unnecessary to repeat the various propositions discussed and determined in those decisions.

[1] But three points are presented on this application. In the first place, it is suggested that the plaintiff has failed to allege a cause of action because it has neglected to state specifically that an executor recording a copyright and claiming the copyright as legatee took such action in the absence of any living widow, children, or next of kin of the author.

If we were considering the matter of jurisdiction in the District Court, as was the case in Danks v. Gordon, supra, allegations of fact rather than conclusions of law would be necessary so as to make out prima facie grounds for the exercise of jurisdiction by this court. But in this case jurisdiction is undoubted. An allegation that action was had by an executor plainly imports a will, thus excluding next of kin under the statute. An allegation that the copyright was duly obtained. when admitted for the purpose of this motion, makes it unnecessary to specifically allege the nonexistence of other persons entitled.

In order to avoid confusion, as was held by Judge Knox in the case in the Southern district, amendment could be had, but is unnecessary, as the present motion cannot be supported on any such ground.

[2] The real point in the case is the question whether Will Carleton, the author of the copyrighted poems, who had assigned his interest, including authority to copyright, to Harper & Bros., many years previous, could, by will, at the time of his decease in 1913, transfer to his executor or legatee under the will the capacity to obtain, under the provisions of the copyright statute, any interest by filing a notice of renewal on January 21, 1915, just one month prior to the date of expiration of the previous copyright.

The cases cited and also Paige v. Banks, 80 U. S. (13 Wall.) 608, 20 L. Ed. 709 (decided with respect to the language of the previous statute of May 31, 1790 [1 Stat. 124]), established the proposition that no assignment of copyright or of right to copyright, can anticipate or assign away the right of renewal which is conferred upon the author, widow, children, next of kin, or executor by the statute. In other words, the property right obtained by the filing of a copyright is the power to prevent copying or use of the material during the period provided for by statute. Neither the author nor his assignee possess any rights or powers which can be transferred in such a way as to run beyond that period. When the renewal of the copyright is sought, a new property right is created and a new power to prevent copying given to the persons entitled, not in any way dependent upon the previous bestowal of a similar authority.

(274 F.)

When there are no widow, children, or next of kin, and the right of renewal vests in an executor, the right must become property which is a part of the estate. Upon the happening of the condition subsequent, the estate thus gains the renewal of the copyright, and the person then entitled to receive the estate or that part of it which includes the renewed copyright will receive the benefit at the hands of the executor. No formal transfer by the executor is necessary, as evidently the executor can hold this property right only subject to accounting for and turning over the estate.

[3] A third objection is raised in the present case because notice of copyright, after renewal by the executor, was printed as "Copyright 1915, by Norman E. Goodrich."

Section 18 of the Copyright Law of 1909 (Comp. St. § 9539), which was in force at that time, did not require that the name of the person entitled to file the copyright should be printed, and this notice would seem to be sufficient under the statutes, if on January 21, 1915, the filing of a renewal of copyright by the executor of Will Carleton, the author of the poems in question, secured the copyright to the estate. The executor was also sole legatee, and, if he obtained the rights to this renewal, these rights would upon his decease pass under his own will. The plaintiff in this case claims these rights by assignment from this legatee.

[4] The conclusion of the court in the case of Fox Film Corporation v. Knowles and Others, in the Southern district, that the executor and legatee of Will Carleton, deceased, obtained no valid copyright by filing the notice of renewal, is based upon the statement in the Silverman Case, supra, as follows:

"We construe the section as vesting the right in, or imposing the duty on executors, only when the power or privilege of obtaining renewal was existing in the testator-author at the moment of decease."

It is apparent that in 1915 the decedent, Will Carleton, had no power to make any disposition with respect to the copyright then in existence. But the point which must now be decided is whether the right to renew the copyright was lost to his estate, and passed to his next of kin directly, if the decedent left him surviving no widow or children, who were living during the last year before the expiration of the earlier copyright, when the decedent's death occurred before the beginning of this year.

In Danks v. Gordon, supra, and Silverman v. Sunrise Pictures Corporation, supra, it was held that an administrator, as such, obtained no right of renewal of a copyright. It evidently follows that next of kin may take directly, but that their rights do not pass through the hands of the administrator; that is, that their rights are not a part of the estate of the decedent. If the right of renewal is not a part of the estate of the decedent, then it would not pass by will. The only purpose of including the word "executor" in the statute must then have been to cover the possible situation presented by the death of an author before renewing a copyright but within the year during which a opyright might be renewed, where no widow or children were living

at the time, and where the decedent, by living until his power of renewal had accrued, obtained thereby a property right which was recognizable as part of his estate, as soon as the privilege was exercised.

On this view of the statute as interpreted by the cases, the author, Will Carleton, at his decease had no rights which he could dispose of in the old copyright which he had assigned. He had no rights which he could dispose of in the power of renewal, as the time when such rights could be conferred by renewal had not arrived. The power to renew apparently vested in his next of kin and was not exercised, and no valid copyright for the renewal period now exists.

The motion must therefore be granted, and the complaint dismissed.

THE FORT MORGAN.

(District Court, D. Maryland. July 22, 1921.)

No. 711.

1. Shipping 132 (3)-Owner, invoking protection of Harter Act, has burden of proof.

Where a steamship stranded through fault or negligence in navigation, to entitle the owner to the protection of Harter Act, § 3 (Comp. St. § 8031), it must be affirmatively shown that due care was exercised in the selection of the navigation officers and engine room force. 2. Shipping 53-Breakdown clause held not to exempt ship from liability to charterer for damages to cargo from negligent stranding.

The breakdown clause in a charter party held not to exempt the ship from full liability for damage to cargo owned by the charterer, resulting from her stranding through fault or negligence in her navigation.

3. Shipping 43—-Ship held liable for late arrival to load bananas.

A ship held liable to the charterer for damage resulting from her late arrival at a wharf for loading bananas, due to delay caused by her negligent stranding, where it was shown that in accordance with the custom of the trade the bananas had been cut and were ready for loading.

In Admiralty. Suit by the Baltimore & Jamaica Trading Company against the steamship Fort Morgan. Decree for libelant.

John H. Skeen and J. M. Mullen, both of Baltimore, Md., for libel

ant.

Lee S. Meyer, of Baltimore, Md., for respondent.

ROSE, District Judge. [1] The Baltimore & Jamaica Trading Company, hereinafter called the "charterer," has libeled the steamship Fort Morgan for the value of 1,500 bunches of jettisoned bananas, and for the damage done by decay to many thousands more, all of which it says was the proximate result of the stranding of the ship. There is no doubt that she went ashore, and as little that her doing so was due to gross negligence in her engine room. As the fault was in her navigation or management, she sets up the Harter Act (Comp. St. §§ 8029-8035); but, in order that she may have its protection, she must affirmatively show that her owner exercised due diligence to

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(274 F.)

make her seaworthy. The Wildcroft, 201 U. S. 386, 26 Sup. Ct. 467, 50 L. Ed. 794.

The libel now before the court charged, among other things, that proper care had not been given to the selection of her engine room force. The record at least suggests that the skill and discipline of that portion of the ship's company left much to be desired. All the evidence that she offered on this vital point was that of one of the officials of her owner, who testified that her chief engineer was competent. How the witness knew that he was, or what inquiry, if any, had been made as to his fitness, was not stated, and not a word was said as to the capacity or reliability of his assistants, in the watch of one of whom the blunder seems to have been made. Such a showing falls far short of what was required to entitle her to the benefits of the act, and it therefore is unnecessary to inquire whether that statute has any application to the loss suffered by reason of her delay in taking on the portion of the cargo not on board at the time she went upon the strand.

[2] The charter contained the usual "breakdown" clause, and the ship contends that by it the parties have themselves fixed the measure of damage for the delay resulting from a breakdown, no matter how caused. She relies upon The Ask (D. C.) 156 Fed. 678. In that case it turned out that the libelant was not interested in the cargo, and suffered nothing by the damage to it. Under such circumstances, remission of charter hire for the period the ship was out of service was all that the charterer could ask. Judge Hough, moreover, pointed out that under the other facts in that case, had the charterer been the owner of the cargo, the ship could not have escaped with no greater liability than temporary loss of charter hire. In both The Craigallion (D. C.) 20 Fed. 747 (decided in this district by the late Judge Morris), and The George Dumois (D. C.) 88 Fed. 537, upon facts similar to those of the instant case, it apparently was not suggested that the breakdown clause in each of those charters limited the right of the charterer to recover all the damage proximately resulting from the ship's default.

[3] The ship further insists that a charterer may not recover for damage resulting from her delay in taking bananas on board, if they had been cut before the arrival at the wharf from which she was to take them, or in its immediate vicinity, whatever may be the law as to other kinds of losses. Upon the record before it, the Circuit Court of Appeals of this circuit some 30 years ago so held. The Curlew, 55 Fed. 1003, 5 C. C. A. 386. That decision was put upon the ground that the evidence showed that it was not the custom of the trade to cut the fruit before the ship was at or near the wharf. The ordinary rule of law that the shipper must have the cargo ready for the ship when she arrives, laid down in Postlewaite v. Freeland, L. R. 5 App. Cases, 620, and countless other cases, has little or no application when the ship is under time charter, for then waiting costs her nothing. Accordingly, in The Curlew it was held that unless there was a general usage, well known in the trade, to cut the fruit before the arrival of the ship, but at such time as would permit its being put on board of

her so soon as she made fast at her wharf, the shipper could not recover for the damage resulting from her not being on time. In that case there was express proof, not only that there was no such custom, but that the practice of the trade was to wait to cut until the ship was at her dock or in its neighborhood.

In the case at bar the uncontradicted evidence is all the other way. In the three decades which have elapsed since the Curlew was tardy, the trade usage has apparently altered. For many years past, every one has been in the habit of cutting the fruit a day or two before the ship in ordinary course will call for it, in order that it may be at the water side when she ties up. The witnesses make it clear why this is for all concerned the most convenient way of dealing with a problem which from any aspect is not without its difficulties. The ship seldom gets a full cargo at one port. Usually she has to gather it from half a dozen. If the bananas to be shipped from each of them are not cut until she gets to it, the time consumed in cutting them and in bringing them from the interior to the landing place will in the aggregate amount to many days, during which the fruit already on board will be suffering. The charter in this case was on the ordinary West Indian fruit form. Everybody knew she was to be used in the fruit trade, although the charterer had the right to employ her otherwise if it wished. Her owner was well aware that delay in keeping her schedule meant loss to the charterer. She should answer for the proximate consequences of her tardiness.

Opportunity will be given to the parties to be heard orally or by briefs, as they prefer, on the amount of the damages suffered by the charterer, as little or nothing has been heretofore said by the advocates on that subject, although the testimony concerning it has been taken.

MONROE CIDER VINEGAR & FRUIT CO. v. RIORDAN, Late Collector of Internal Revenue.

(District Court, W. D. New York. July 2, 1921.)

No. 2020.

1. Internal revenue 11-Sweet cider a "soft drink."

The term "soft drinks," as used in Revenue Act 1918, § 628 (a) (Comp. St. Ann. Supp. 1919, § 61611⁄2d[a]), imposing a tax on "unfermented grape juice, ginger ale, and other soft drinks," held to in

clude sweet cider.

*

[Ed. Note. For other definitions, see Words and Phrases, Second Series, Soft Drinks.]

2. Internal revenue 11-Sale price of soft drinks includes containers. Revenue Act 1918, § 628a (Comp. St. Ann. Supp. 1919, § 61611⁄2d[a]), imposing on soft drinks "sold by the manufacturer, producer or importer in bottles or other closed containers a tax equivalent to 10 per centum of the price for which so sold," held to authorize assessment of the tax on the price received for the beverage and containers.

3. Words and phrases—“Cider;” “hard cider;" "sweet cider.”

"Cider" is the juice of apples, either before or after fermentation; "hard cider" being fermented cider, a strong, spirituous, and intoxicatFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes