*1 shоwn' was such as to come within ents and their use to Standard licensed in man- domain of the As the Company, engaged Car Truck skilled mechanic. shows, previous opinion de- ufacture of Truck.” of this cоurt the “Barber Stabilized embodied fendant’s structure embodied' an Defendant is asserted to have accused improvement patent truck in its accused over Goodwin features but, nothing notwithstanding, to show suit this court found Again, structure. there is extent, infringement teachings if “difference any, what patent incorporated degree.” in or in suit were And as defendánt’s im- provement by permit it to utilized Standard Car Truсk was not such as to escape any improvement by infringement, in its Truck.” As “Barber Stabilized - relationship plaintiff was Goodwin not shown, its such as to it to escape anticipation by fixed a number find a license which covered Ritter. We patents, pat- evi- no occasion of Goodwin and while there is to discuss other art teachings upon Good- dence it ents relied utilized the District Court. win, appears a Goodwin it that it judgment appealed from is patent upon other than that in the relied Affirmed. very helpful instant case. -It is not plaintiff’s generally cause to talk about' teachings
Goodwin’s or his notable con- all,
tributiоn to the art. After the status patent in suit must be determined disclosure, independent is shown what patentee patent in some other
patents. ARMSTRONG, P.& Inc. v. THE points to Plaintiff the fact that Rit MORMACMAR et al. put ter had never use аnd that it Docket 22271. No. expired prior pat to the issuance words, ent paper in suit. In other it awas patent, teachings of which had not been Second Circuit. embodied in a structural device either Argued 1952. that, anybody the defendant or else and May 5, therefore, per defendant should not Decided rely upon mitted to it for the
anticipating argument gen Goodwin.
erally carries some force but as related case instant will bear close
scrutiny. place, In the first it is doubtful
from the record that the disclosure of the
patent in has been put ever to use and
certainly plaintiff. And, shown, utilized, if appears it has been it pat
to have been in connection with other disclosures,
ent without definite show part, any,
ing teachings as. to what if patent in
of the. .contributed Moreover, art. has been held though use, may
patent, even never upon subsequent
be relied to invalidate a
patent. Western States Mach. v. S. S.
Hepworth patent think that the
We suit is
invalid in view Ritter. We with' any improvément Court that
the'’District
Hill, Middleton, O. Arthur Rivkins & Rivkins, оf New Gregory Louis S. all Inc., Armstrong, City, York & P. Co., ap- Ins. libellant-appellant, and Home pellant. Veeder, Hupper, Burlingham, Clark Lord,
Chauncey M. I. and Herbert Clark of New City, York for Moore-McCormack Linеs, Inc., respondent-appellee. Myles Lane, tty., U. S. A York New
City, City, Postner, William H. New York America, respondent- appellee. HAND,
Before L. N. AUGUSTUS CHASE, HAND Judges. Circuit Judge. AUGUSTUS N. Inc., ap- P. L. W. & pellant, consignee and owner of 75 shipped gunnies bales of which were India, Calcutta, York destined for New aboard the The Mor- S. S. Mormacmar. macmar on sailed from Calcutta December Z., Wellington, at 1942 and arrived N. Jаnuary on 1943. While at repairs temporary of a nature made on were peak the after tank in which leaks had been discovered vessel’s arrival The vessel left depar- February 1943 and sоon after her ture new leaks Because were discovered. lack of sufficient fresh water for Canal, long Panama mas- voyage to the ter decided to return to as a port refuge. The vessel arrived average February general and a day part was declared. On next gunnies including the above men- tioned, placed discharged and in ware- might houses be lightened so that thе vessel drydocking. Reloading February 21, commenced on 1943after completed. During even- ing of the 21st a fire broke out in one of in which the the warehouses gunnies were de- stored and bales stroyеd. present libel was instituted Arm September 1944to recover the
strong on
gunnies
value of the
in the fire.
America as owner of
The United States of
Moore-McCor
the Mormacmar
Inc.,
fuge insurancе
Steam
the Isthmian
mack
ship
agent
Wellington.
and berth Mormacmar returned to
general
as
respondents.1claim
sustained
agent respectively
named
the district court
separate its interlocutory
three
decree and a commissioner
T
he
libel set forth
*3
respondents
appointed
damages.
first,
report
was
to
the
as to
claims. Under the
hearing
for
of At the
the
charged
liаbility
breach
before the commissioner
e.,
the
carriage, i.
failure to
introduced
to
the contract of
evidence
of action
effect
the
cargo.
deliver
cause
that
suit wаs insured
the
for the rea
with the
Insurance Com
dismissed
the
court
Home
district
pany
paid
within
and that the
Arm
that the
latter had
son
libel was not
one-year
$3,840.33
period prescribed
strong
in the bill of
for the
41 bales
the
loss of the
1303(6).
lading.
gunnies.2
of
the other
See also
46 U.S.C.A. §
hand,
paid
appeal
No
that dismissal.
contended that it had not
was taken from
been
that the
transaction which it received
actiоn was
of
The second cause
$3,840.33
the sum of
from its insurer
predicated
theory
the return of
that
evidencing
a
merely
loan. The document
was a devia
Wellington
the Mormacmar to
the transaсtion read as follows:
tion,
respond
consequence
the
with the
that
“Received from the Home Insurance
absolutely
loss of
ents
the
Company, the sum of Three Hundred
How
the
which
thereaftеr.
occurred
Eight
forty
Hundred
[sic]
33/100
ever,
the
that
had
below found
court
Dollars
re-
($3,840.33)
a loan and
this claim
been no deviation and dismissed
payable only
any
to the extent
of
appellant
aрpeal
On
attacks
the
also.
recovery
may
we
any car-
make from
findings
argues
the
of
and
the lower court
rier,
others,
bailee or
account
the
for further
that
return to
loss to our рroperty (described below)
since the re
constituted a deviation
due to loss of or damage thereto on
only
was made
turn
‘Mormacmar’ on or
July/43,
about
or
respondents’
exercise due
the
failure to
any
from
insurance
effected
seaworthy
diligence
in a
to
the vessel
carrier, bailee
prop-
or others on said
at that
condition on her first call
erty,
security
аnd as
repay-
for such
respondents’
assuming
Even
lack
that the
thereby
ment
pledge to the
Home
said
diligence
peril
the
the cause
Company,
the said
after she left
which confronted the vessel
it,
and deliver to
duly endorsed, the
liability
no
there could be
bills of lading for said
property
to
deviation since
return
the
a
we
to
prosecute
enter and
required
safety
the
the
crеw.
carrier,
said
bailee
others
Republic
Overseas
of France v. French
on said claim with all
diligence
due
Baxter),
(The
277 U.S.
Malcolm
expense
and under
exclusive
901;
323, 332,
L.Ed.
S.Ct.
72
48
direction and control of the said Home
Act,
Sea
Carriage
also
Goods
Company.”
1304(4).
U.S.C.A. §
exceptions
On
to
commissioner’s
The third and final
action al
cause
report, the district court held
Arm
leged
respondеnts were
that the
liable as
strong
had failed to
damages,
show
insurers for the
ashore be
port-of-re
they
F.Supp. 930. We concur
cause
had failed to obtain
in this view and
appellant
Jurisdictiоn
er
to sue the United
2. The
contends that
Admiralty Act,
was based on the
ror on the
of the
Suits
commissioner
46 U.S.C.A.
district court
of the
court
to admit
this evi
m
But
dismissed
libel as
re
dence.
the reference to the com
spondent
Steamship Company
Isthmian
was for the
issioner
of deter
appeal
mining damages
pay
and no
was taken from that
evidence of
appel
ment for the loss
decrеe.
insurer was
relevant
to that
lant’s
properly
quiry and
received.
an intent
impute Congress
Mc
reasonable
v. W.
that Luckenbach
do not think
breach of such
grant to the
Refining
248 U.S.
Sugar
Cahan
breach
requires
longer
dif
limitation
53, 63 L.Ed.
physical in-
protect
ferent
That decision
result.
duty to
jury.
It is of course true that
shipper
paid by its insurer
occasions,
the loss
repay insure will
cover
where it
under a
remained
carrier
results from
failure of the
But the
a loan.
it had received as
nevertheless, the
question
goods;
sus “care for” the
here is whether
enlarge
phrase may
context of
failurе
any damage by
tained
virture
cargo.
scope
such an
literal
include—when
respondents to insure the
the owner
*4
indemnifying
duty
from added
If the
received
exists—
mischances,
those for
damage
еven
repayable,
insurer
its
interpretation
which he
then
is not at fault. All
Armstrong would
was shown for
doubt;
hazard,
is a
I
in much
fully
for its loss.
and have been
reimbursed
have
receipt
me the most
foregoing
but
seems to
According
the terms
the loan
reasonable construction. Since the suit
repayable
on the condi
the loan was
against the
therefore
from the
States was
tion that there be a
late,2
Armstrong’s prop
too
it is
carrier for
the loss of
neither
erty.
decide whether the libellant suffered
Since it has been
right
loss.
It was
is
for the loss
to dismiss
claim
loan
transformed into
Moore-McCormаck
Inc. for
“final,
Cosmopolitan
complete payment, for
will another
reason as well.
783,
any recovery
McAllister,
Shipping
not be
[Armstrong]
v.
U.S.
repayable.”
which the
would
loan
be
Barge Lines, 2 the Homfe right had no proceedings greater
terest to assert in the an that of As insured. subrogated rights
insurer final
Armstrong and the district court’s dismissing
decree libel of necessarily disposed claim of the BOARD NATIONAL LABOR RELATIONS Company. Home Insurance REED PRINCE CO. v. MFG. is Accordingly, the decree affirmed. No. 3549. Judge (concurring). L. First Circuit. concur, rea slightly I different finally I come sons. have Judge Medina that to insure ship’s repair
goods, ashore adjustment, general average
pending a regarded be her should stow, “load, handle, keep, for, carry, care carried”; more discharge “care particularly, as of her would, think, It for” them. I most un- 1303(2), 1303(6), Title U.S.C.A. Title 2. § U.S.C.A.