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even if maritime, it does not give rise to a maritime lien.

The bill of lading contained the following provisions which are pertinent to the issue: "When the goods are free of the vessel's tackle or have been lifted by cranes upon craft or shore, the delivery by the shipowner shall be considered complete and the liability of the shipowner shall altogether cease and thereupon the goods shall be at the risk and expense, for all purposes, and in every respect, of the shipper, consignee or owner. If the goods are not taken away the same day by the shipper, consignee or owner, they may, at the option of the vessel's agents, be sent to store or warehouse, or be permitted to lie where landed at the expense and risk of the shipper, consignee or owner."

"The owner, shipper, consignee, of the goods and the holder of this bill of lading shall be jointly and severally liable for all freight and charges and expenses of every kind whatsoever, whether payable in advance or not, that are stated to be or may be incurred herein by the cargo; and all such charges and expenses shall be due and payable day by day immediately when they are incurred, and the shipowner shall also have a lien for them and the freight on the cargo. (Italics inserted.) This lien may be enforced by public or private sale in any manner in the shipowner's discretion. The owner, shipper, consignee, or holder of this bill of lading will pay all such freight and charges and expenses in full, and without any offset, counterclaim, or reduction, but without prejudice to any claim against the shipowner for breach of contract hereunder."

[1] The basis of respondent's exceptions, which will be treated together, because they are substantially one and the same thing, is that any support for a maritime lien must be found either in the general maritime law or in some statutory enactment; that the present claim is beyond the jurisdiction of this court, since it is for storage of cargo on land after its discharge from the vessel; that no lien is given, either by the general maritime law or by statute, to a vessel for the storage of goods after the completion of her voyage; and that such a nonmaritime claim cannot be changed into a maritime lien by mere agreement of the parties, namely, by provisions inserted in the bill of lading. In support of this contention, respondent relies upon such cases as The Richard Winslow (C. C. A.) 71 F. 426; The Saratoga (C. C. A.) 204 F. 952; The Athinai (D. C.) 230 F. 1017; Gowanus v. United States Shipping Board (D. C.) 271 F. 528.

In reply to this contention, libelant asserts that while the lien which the vessel in this case seeks to enforce arises by reason of the terms of the bill of lading, it is not a true maritime lien which is by nature a secret hypothecation independent of possession, and following the res unqualifiedly, but rather a possessory lien, which may be, and is frequently, created by agreement between the parties and when so created, is enforced in the admiralty courts. In support of this contention libelant relies upon such cases as 4,885 Bags of Linseed, 1 Black, 112, 17 L. Ed. 35. The Saturnus (C. C. A.) 250 F. 407, 3 A. L. R. 1187; The Maggie Hammond, 9 Wall. 435, 19 L. Ed. 772. Libelant seeks to liken the present claim especially to a lien for dead freight, given by a charter or bill of lading and which has been recognized in the English admiralty courts (Porteus v. Watney, 47 L. J. Q. B. 643), although the maritime law itself gives no lien for dead freight. The Saturnus, supra, 411 and 412.

[2-4] The court is not impressed with the distinction sought to be made by libelant. It is undoubtedly true that a vessel's lien is now universally recognized in the United States on the cargo for ocean freight and demurrage. The Hyperion's Cargo, Fed. Cas. No. 6,987, 2 Lowell, 93; The Saturnus, supra. It is also well settled that such a lien is not lost by delivery if the vessel expressly retains it. 4,885 Bags of Linseed, supra. But these principles are not decisive of the specific question here presented, which is one not relating to any charges connected with the vessel's services, but solely with the services of a third party, namely, the railroad, after the cargo has been discharged. Demurrage in a maritime sense is a charge allowed to a vessel for delaying her in unloading, in the nature of compensating her for the freight she might have earned, had she not been so delayed. J. E. Owen (D. C.) 54 F. 185; The Saturnus, supra. True, demurrage is allowed to a land carrier on the same principle; but it has nothing to do with the services rendered by the vessel. The cases relied upon by libelant above cited do uphold the principle that the vessel has a lien upon the goods for freight, demurrage, and other charges; but in no case cited, nor in any that have been found, have such other charges been entirely unrelated to the services of the vessel, as are the charges in the present case. It is true, it was said in The Maggie Hammond, supra (page 450), that "shipowners contract for the safe custody, due transport, and right delivery of the cargo, and for the performance of their contract the ship, her

28 F.(2d) 95

apparel and furniture, are pledged in each
particular case, and the shipper, consignee,
or owner of the cargo, contracts to pay the
freight and charges, and to the fulfillment of
their contract the cargo is pledged to the
ship, and those obligations are reciprocal,
and the maritime law creates reciprocal liens
for their enforcement." But that case
merely held that, when a vessel is disabled
in the course of a voyage and cannot be
seasonably repaired to perform it, her mas-
ter is bound to transship the goods and
send them forward in another vessel, if one
can be reasonably procured; in other words,
that the owner of the cargo has a lien upon
the ship for the safe custody, due transport,
and right delivery of the same. The question
here involved was not before the court. Nor
was it before the court in any of the other
cases to which we have been referred. The
case of Howard v. 9,889 Bags of Malt (D.
C.) 255 F. 917, to which libelant refers, was
reversed by the Circuit Court of Appeals
(262 F. 946); the higher court holding that,
where a vessel had departed after discharging
her cargo and storing it in the name of the
consignee, the vessel lost her lien, even for
ocean freight, against the cargo, in the ab-
sence of a definite agreement with the con-
signee that the vessel's lien should continue.
[5] Even assuming, without deciding, that,
as libelant contends, a valid lien for dead
freight may be created in the United States
by agreement in a charter or bill of lading,
although not otherwise existing, the analogy
is so imperfect as not to be convincing. The
expression "dead freight" is used to denote
the compensation payable to a shipowner
when the charterer has failed to ship a full
cargo, namely, compensation for the loss sus-
tained by the shipowner by reason of the
charterer's failure to deliver the agreed quan-
tity of cargo. Clearly, the basis of such lion
is directly related to the vessel's services,
whereas railroad demurrage bears no such
relation. The court fails to see any distinc-
tion on principle between the situation in the
present case and that which existed in The
Saturnus, supra, where the court held there
could be no lien on a vessel for damages re-
sulting from its failure to load at the speci-
fied place; the vessel and the cargo never
having assumed the relations which give rise
to a mutuality of lien, because the cargo was
never put aboard. The following language
of Judge Hough, in closing his opinion in this
ease, is pertinent (page 414):

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"In respect of carriage of goods in particular, every public benefit has for centuries 23 F. (2d)-7

been deemed obtained when goods were liable for freight, and ship for safe and sound delivery of goods, the mutuality of relation thus growing out of the act of transport, not the making of a contract for transportation. Anything more than this multiplies secret liens and hampers instead of advances ease and freedom of commerce. Merchant and mariner alike subject their property to the municipal law of every country into which their venture comes, but a maritime lien is as near an approach to jus gentium as can be found in private jurisprudence, and any extension thereof not internationally well founded is to be opposed as jealously as is a denial of its accepted extent."

Granting that the case of The Richard Winslow and the Gowanus Case, supra, relied upon by respondent, are not really closely analogous, because they merely decide that an admiralty court has no jurisdiction over contracts to procure permanent or lengthy storage of goods, either on the vessel after the voyage has been completed, or on land, there are other analogies of the law which strongly tend to support the view which the court takes in the present case. For example, prior to the Act of June 23, 1910, 36 Stat. 604 (Comp. St. §§ 7783-7787), giving a maritime lien for repairs furnished to domestic vessels, a maritime lien against such vessel could not by agreement be created for repairs furnished to such vessel, good as against subsequent owners. The Saratoga, supra. Similarly, it is beyond the power of a state to create a lien enforceable in admiralty by process in rem against a foreign ship. The Athinai, supra.

[6] The court, therefore, decides that it is not possible to bring the present claim within the cognizance of admiralty jurisdiction by mere agreement that it shall be so brought. The payment for which reimbursement is claimed in this case, appears to have been entirely a voluntary one on the part of the vessel. A railroad normally, in the absence of special arrangement, would have no claim which it could assert against the vessel or her owner, because its rights would lie against the shipper or consignee of the lumber; and here it is pertinent to note that it is quite doubtful whether the bill of lading did actually amount to an agreement, as libelant contends, that the vessel should be reimbursed for any such charges that might be incurred by it. It is true that, by the second provision of the bill of lading above quoted, the owner, shipper, or consignee, or the holder of the bill of lading, is declared to be liable "for

In Equity. kind

every

all freight charges or expenses of whatsoever, whether payable in advance or not, that are stated to be, or may be, incurred herein by the cargo." But the first provision above quoted recites that, as soon as the cargo has been placed upon craft or shore, delivery shall be considered complete, "and the liability of the shipowner shall altogether cease, and thereupon goods shall be at the risk and expense, for all purposes and in every respect, of the shipper, consignee, or owner." In short, it seems to the court at least very doubtful whether the facts sustain the contention of the libelant.

However, it becomes unnecessary to rest the case upon this ground, because, as above explained, the exceptions are well founded on the point of lack of jurisdiction, and are therefore sustained, and a decree will be signed dismissing the libel.

Suit by the Premier Malt Products Company against Herman Kasser, doing business as the Blue Anchor Malt Distributing Company and the Philadelphia Malt Extract Company, for an injunction. On trial hearing, on pleadings and proofs. Decree dismissing plaintiff's bill.

Paul C. Wagner and Joseph S. Clark, Jr., both of Philadelphia, Pa., and Edward S. Rogers and Allen M. Reed, both of Chicago, Ill., for plaintiff.

Joshua R. H. Potts and T. Bertram Humphries, both of Philadelphia, Pa., for defendant Kasser.

E. Hayward Fairbanks, of Philadelphia, Pa., for defendant Philadelphia Malt Ex

tract Co.

DICKINSON, District Judge. The conclusion reached is that the bill should be dismissed, with costs.

Discussion.

The bill is based upon averments of registered trade-mark infringement and of un

PREMIER MALT PRODUCTS CO. v. KAS- fair competition. Each party is the owner

ŞER et al.

District Court, E. D. Pennsylvania. December

2, 1927.

No. 4159.

1. Trade-marks and trade-names and unfair competition 70(1)—One who misleads purchasers into buying one product, thinking that they are buying another, is liable to producer, manufacturer, or dealer in other product.

Every producer, manufacturer, and dealer has property right in favor with which his product is regarded by the purchasing public,

and one deceiving purchasers, and thereby robbing such producer or manufacturer or dealer of sales which he would otherwise make, by misleading purchaser to buy another product, is guilty of actionable wrong.

2. Trade-marks and trade-names and unfair competition 70(3)-Seller of "Blue Ribbon" product held not entitled to injunction, on ground of unfair competition, against one using name "Blue Anchor" with similar label. Defendant selling product under name of "Blue Anchor," with label similar to that of plaintiff, whose product was designated as "Blue Ribbon," was not guilty of unfair competition, such as to warrant an injunction, where, though defendant's package imitated and was suggested by plaintiffs, typography of defendant's labels and color scheme apparently originated wholly with his printer, and resemblance was largely matter of opinion, not subject to be determined by any fixed standard.

3. Torts 3-Legal wrong must have correla

tive legal right.

For every wrong there must be a correlative legal right, and loss or damage alone is insufficient, unless there is an actual legal injury.

of a registered trade-mark. One is known as a Blue Ribbon and the other as a Blue Anchor. The trade-mark infringement charge is not very vigorously pressed, and we find that it has not been made out.

[1,2] The unfair competition charge is the real one. The difficulty in most cases of this general kind is to get a grasp of just what it is which the plaintiff had of which the defendant has deprived him. The first concept of the wrong done in these cases was very definite. It was that the defendant had palmed off his own make of product for that of the plaintiff. This was a wrong both to the plaintiff and to the purchasing public as well. It was a trespass upon a clearly defined right. Every producer, manufacturer, and dealer even has a property right in the favor with which his product is regarded by the purchasing public. To deceive purchasers is a wrong done them, and to thereby rob a plaintiff of sales which he would otherwise make is a wrong to him. The source of this property right was the value of a good name. It is at least doubtful whether it has to-day any value. It is certain that, if litigation is any test, dealers no longer value it.

The complaint to-day is never that the defendant has been guilty of deception respecting the producing origin of what is sold, but that the defendant has made advertising appeals similar to those in use by the plainThe sales appeal to-day is not in the

tiff.

23 F.(2d) 98

merits of what is sold, vouched for by the name and reputation of the producer, but is wholly to the eye and to the ear of the purchaser. No one seems to know just what subtle thing it is in which the appeal subsists. Sale cries seem to affect the imagination of buyers, just as battle cries do warriors. Whether such slogans have any real value or not, all dealers ascribe a value to them. Much of whatever value they have may be ascribable to association of ideas, although this seems to be rather far-fetched. Blue ribbon is associated with the thought of excellence, at least in horse flesh. The color scheme which the package presents to the eye gives it attractiveness. This plaintiff thinks it has something of value in these two features.

What is that, however, in which the plaintiff has a property right? A trade-mark undoubtedly; but this is a mark of origin, and the packages here could not be found to work any confusion in this respect, as the name of the producers is plainly indicated. A name of designation is the subject of property, but the name Blue Anchor could not be said to be the same in name as Blue Ribbon, etc., or deceptively similar. There could scarcely be said to be any right of property in the attractive appearance of a sales package. What is commonly said is that one has the right of protection against the use by another of packages which are of deceptive appearance. This, however, is a meaningless phrase, until you write into it the thought of in what is the deception. If, as already said, it misleads purchasers into buying one make, thinking they are buying another, such a wrong is a legal injury. There is, however, as we have also already found, no charge here of such an injury.

[3] What right (beyond the right above mentioned) has the plaintiff? In the old days molasses was sold from the barrel into the jug or pitcher of the purchaser. A dealer conceives the idea of selling it in cans of convenient size and attractive appearance. This changed method takes with customers, and all ask for molasses in cans. Outside of patent, trade-mark, or protection of origin rights, what legal right to the exclusive use of his improved sales method would this first introducer have? We cannot think of a legal wrong, without the thought of a correlative legal right. Thus no one can complain of a wrong without first showing a right. Loss or damage alone will not do, because there may be great damage without a legal injury, just as there may be a legal injury without damage. There must be both

the injuria and the damnum to give a legal cause of action, and this remains true notwithstanding the legal fiction of nominal damages. Indeed, this truth made the legal fiction logically necessary. There is always in the back of the commercial head the thought of unfairness in competition.

In the supposititious case we have instanced, the originator of the method of selling molasses in cans would resent the intrusion of another dealer upon what he regarded as his peculiar field. In his eyes this would be not merely unfair competition, but downright robbery. Along with the general tendency of late years to substitute the "elastic chord of feeling for the golden metewand of the law," there has grown up the thought of judging unfair competition cases by the test of taking a broad survey of the whole case, and making the finding whether on the whole the defendant is reaping an unfair advantage at the expense of the plaintiff. There is something appealing in the use of this test. We all have a more or less vague and variable standard of what we call justice, which we are prone to apply and because it is ours we think highly of it. It is, however, usually a sense or mere sentimental feeling, which has nothing in common with a reasoned result, and, when we are dominated by it, we resent with something like irritation the introduction of logical processes to test the soundness of this sense of what is right.

There

The objection to this broad general view survey of the whole case is the utter absence of any real standard of right. Whoever is doing the judging fixes his own standard, so that there is no rule, but a mere ipse dixit, the rescript of the Roman emperor. is in consequence no rule but a variable standard, which changes with the mental temperament of him who judges. Some minds are quick to see resemblances between compared things; others are alert to detect differences. The instant case affords a good illustration of these differences in men.

We make the finding, for whatever it may be worth, that we see such a strong resemblance between the sales packages of the plaintiff and defendant as to carry the conviction that one suggested the other and that the defendant's package is an imitation of that of the plaintiff. We must qualify this, however, with the further finding that, so far as this is due to what may be called the typography of the labels, including the color scheme, this originated wholly with the printer, and he had not seen at that time the label of the plaintiff. The printer so testified, and

we believe him. There was that in his person-
ality and manner of testifying which com-
manded faith and confidence in the truthful-
ness of his testimony. None the less, we
think we see a strong resemblance in appear-
ance between the two packages, and so find.
There is nothing surprising in the co-
incidence that counsel for plaintiff sees the
resemblance even more clearly than we do,
while counsel for the defendant can see only
the differences between the two labels. The
latter saw or thought he saw that the impres-
sion of similitude (so far as it existed) was
due wholly to the color scheme. To show
this he reproduced the two labels in plain
black and white, pointing to what, as he saw
it, was the then marked absence of all re-
semblance between them. Counsel for plain-
tiff criticized this method of test as wholly
unsatisfactory and valueless, but admitted
that the absence of color brought out the dis-
similarities strongly. Now comes the cir-
cumstance which bears upon this "general re-
semblance" test. To the eye of the trial judge
the black and white comparison emphasized
strongly the resemblance between the labels. District Court, D. Maryland.
We are quite prepared to accept the testi-
mony of counsel as to the result of this com-
parison rather than that of the trial judge,
but none the less the incident does bring out
the absence of any real standard of compari-
son, and tends to show that the "general re-
semblance" is wholly personal to the trier
of fact.

in such flattery, unless it takes the form of
palming off the imitation product and im-
posing it upon purchasers as that of the
plaintiff.

There is no justification here of a finding that the defendant has sought to palm off its product as that of the plaintiff. The real complaint is of an effort to boost the sales of his product by the like method of "attractive" advertising which the plaintiff has employed. This is in a very real sense unfair, but is not an unfairness which the law can enjoin, because the plaintiff has neither a copyright nor a patent right to this method. We are unable to find in this case any right of the plaintiff upon which the defendant has trespassed, and, in the absence of any such right, find no equity in the bill.

The cases which deal with the subjects of infringement of trade-marks and unfair competition are almost numberless, and altogether too numerous to list. When put to it to formulate a legal doctrine upon which to plant a ruling, the doctrine is always the old one of a protection of the right to have the origin of production secure against fraudulent imposition. This of late years, however, as we have said, is not the right which is valued, nor is this the protection sought. The real right which is asserted, and the wrong sought to be prevented, is well summed up in the closing appeal made to us in the very able paper book submitted on behalf of the plaintiff. "Enterprise, novelty, and attractive advertisement" are without doubt to-day great aids in promoting the business of this plaintiff. We can well understand its feeling of resentment against "the craft" and "skill in refinement of imitation" employed to give to a competitor the advantage of like "enterprise, novelty, and attractiveness in advertisement" of rival products. Imitation is said to be the sincerest form of flattery, and our trouble is in finding a legal wrong

A decree dismissing the bill, with costs to defendant, for want of equity, may be submitted.

THE COMMANDANT.

1927. No. 1519.

November 18,

1. Master and servant 301 (4)-Stevedores employed in loading ship lent by foreman to derrick barge to help transfer cargo held in such service servants of barge.

When a derrick barge was about to transfer some heavy steel billets from a scow into a steamship, under a contract, four stevedores engaged in loading the ship, by direction of their foreman, but without orders from the ship or request of the barge, went aboard the barge to

help, and their services were accepted. Held, under the lent servant rule, in rendering such service they were servants of the barge and not of the ship.

2. Shipping

80-Derrick barge loading heavy cargo into a ship held liable for damage caused by slipping of steel billet from sling.

A derrick barge contracted to transfer some heavy steel billets from a scow into the hold of a ship, and when one was being lowered it slipped from the sling, fell and damaged the ship. Held, that the barge was liable for the damage and was not relieved from liability by the fact that it used a sling belonging to the ship, instead of its own or that stevedores from the ship, helped in the transfer, under its direction.

In Admiralty. Suit by the. Sudbury Steamship Corporation and the Munson Steamship Line against the floating derrick barge Commandant. Decree for libelants.

Janney, Ober, Slingluff & Williams, of Baltimore, Md., for libelants.

Lord & Whip, of Baltimore, Md., for respondent.

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