WIDTH ".HEATIL
291
solution of camphor in any thing which would dissolve it, would be a solvent of xyloidine. Of the eight ,mixtures mentioned as solvents of xyloidine, camphor is in only' five. The discovery is that the· mixtures named are the solvents. If the wood alcohol used by the defendant is of itself a solvent of xyloidine, and is the same thing known as a solvent of it, under the name of wood naphtha, at the date of Parke's patent No. 1,313, the defendant ,may use it in con· junction with' camphor, because such use is made known in No. 1,313. If such wood alcohol is a new article, discovered since the plaintiff's invention, it may be used by the defendant, because the patent covers only the use of alcohol or spirits of wine with camphor; . and such new article is not alcohol or spirits of wine, and is not within the claim. The claim· does not cover anything which may be discovered subsequently to effect, in conjunction with camphor, as good a result in dissolving xyloidine as the use of alcohol or spirits of wine in conjunction with camphor. And even though the defend. ant's wood alcohol be methyl alcohol, and an article known by that name before the plaintiff's invention, it cannot be held that the plaintiff discovered the usefulness of it in conjunction with camphor to dissolve xyloidine, because his patent is expressly limited to that alcohol which is spirits of wine, and that is not methyl alcohol. The motion is denied, with costs.
WmTE and others .,.
HEATH.
(CMc'Uit Oourt, D. BMiJI lIlaM.)
L
PATENT-ImmINGEMENT.
Changes in the details of construction of a patented article may be patentahIe as improvements, but they will not protect the party against the charge of an infringement of the original patent. 2. SllIE-INJUNCTION.
Where the validity of the original patent is not questioned by the defendant, capital has been invested in its manufacture, a succe88ful busin888 established, large and numerous sales have taken place without dispute, and exclusive passe88ion is sho wn for some time, a preliminary injunction will be granted.
In Equity. Petition for preliminary injunction. Wilmarth H. Thu1'ston, for complainants. WtIITf'en R. Pirce, for defendant.
292
FEDERAL REPORTER.
COLT, D. J. This is an application for a preliminary injunction. The complainants, having acquired title by assignment to a certain patent issued to Charles S. Westland for an improvement in lamps, charge the defendant with an infringement. This patent, No. 206,061, was issued July 16, 1878, and the claim is as follows: .. The combination, with a lamp for burning explosive or inflammable oils or fluids, of a closed receptacle containing carbonic acid gas under pressure,so located with relation to the burner that in case of an explosion the compressed gas will be liberated, sUbstantially as and for the purposes set forth."
The object of this invention was to avoid the danger from fire, in the event of an explosion of a lamp in which kerosene or other inflammable fluid might be used,by means of a closed receptacle, or chamber of glass or other fragile material, charged with carbonic a.cid gas fitting about or into the oil reservoir. Immediately upon the iSBUing of the patent, Westland Bought capital to establish the business of manufacturing the lamp. Among those whom he met was the defendant, Heath, and on September 16, 1878, he sold to him one-third interest in the patent. On July 3, 1879, the complainants White and Fairbrother bought the remaining two-thirds, and On January 28, 1881, they also purchased the other one-third of Heath and another person to whom he had transferred a part. We thus find that the defendant was interested in. this patent up to January 28, 1881. On March 1, 1881, the defendant took out letters patent, No. 238,234, for an improvement in safety lamps, and he claims that the lamps complained of are made under this patent. The position taken by the plaintiffs isFirst, that the lamps in question are not made under the defendant's patent, because the main features of' that patent, which consisted of certain details in the construction of safety lampI?, are omitted; second, that even if made under that patent they would be an infringement of the Westland patent. The inquiry whether the lamps made by the defendant conform to hiB patent we deem, under the circumstances, immaterial. The only defence offered by Heath is his patent, and if that does not protect him he is guilty, under the evidence, of the charge of infringement. An examination of the defendant's patent shows that it embraces the main element.s of the Westland patent. It consists of a combination, with a lamp for burning explosive oils, of a closed receptacle containing carbonic acid gas, so located that in case of an explosion the compressed gas will be liberated. What is claimed in the specification is an improvement "in certain details of construction whereby the pas-
WHITE V. HEATH.
293
sage of the gas to the inside of the reservoir and to the flame is insured." These details relate mainly to the construction of the gas receptacle, it having "grooves or flutes" running down into the oil reservoir; the defendant claiming that by his invention the gas chamber is less liable to get broken, at the same time the gas comes into more immediate contact with the flame in case of an explosion. But admitting that the defendant has worked out an improvement in details in the gas receptacle, still he had no right to use all the main elements of the Westland patent. Westland's patent was the application Qf the power of carbonic acid gas, in, extinguishing flames, to an ordinary lamp containing any inflammable oil, like kerosene, by means of a closed receptacle holding such gas. Changes in the details of construction of such receptacle might be patentable as improvements, but would not protect the party against the charge of an infringement of the former patent. But the general idea of a receptacle with tubes extending into the oil is not absent from the Westland patent, for the specification sets out that gas tubes may extend up into the oil from the bottom, and that small closed vials of compressed gas may be dropped into the oil at the top. The defendant does not undertake to prove that his patent is not an infringement, by any eviden'ce further than his statement in his affidavit that on consultation and advice with eminent experts and counsel in patent matters, he belic'ves that his improved safety lamp is not an infringement upon any rights properly claimed by the Westland patent. We are of the opinion that he is guilty of an infringement for the reasons given. The validity of the Westland patent is not questioned by the defendant. Capital to the extent of $20,000 has been invested in the manufacture of these lamps and a successful business established. Large and numerous sales have taken place without dispute. Exclusive possession is shown for some time, though not for a long period. Under these circumstances an injunction is seldom refused. Curtis, Law of Patents, § 413; Orr v. Littlefield, 1 W. & M. 13; Potter v. Muller, 2 Fish. 465. The statement of the defendant in his affidavit that the only lamps he has made were for experimental use, should not, in view of other undisputed testimony, affect the granting of an injunction. It appears that these lamps were exhibited at the fair of the Massachusetts Charitable Mechanics' Association, held in the fall of 1881, and that circulars were distributed to the public setting off their advan.
294
tages. It further appears that the lamp has been otherwise advertised. If sales have not actually been made, such a wrong is threatened, and that is sufficient to call for an injunction. Bt1mp, Law of Patents, 294; Poppenhusen v. Gutta Percha Co. 2 Fish. 74. Nor is the assertion of the defendant in his affidavit, that he has no intention of making or seIling any of said lamps during the pendency of this Buit, a good reason for withholding an injunction. The complainants are not obliged to rest their interest on the mere assertion of the defendant that he will not repeat the act of infringement. Bump, Law of Patents, 295; Jenkins v. Greenwald, 2 Fish, 87. The motion for a preliminary injunction is granted.
THE ANT.
(District Court, D. New Jersey. February 3, 1882.) 1. COLLISION. .
A steamer with a long tow, about to pass another steamer, also with a tow, is bound to avoid the latter. 2. SAME-LoOKOUT.
Steamer/! navigating on the tlloroughfares of commerce are bound to have a lookout, independently of the helmsman. 3. SAME-LIGHTS.
Steam-vessels, .. when towing other vessels," must exhibit two bright white mast-head lights vertically, in addition to their side lights; and all vessels, whether steam or sail vessels, when lying at anchor in roadsteads or fair-ways, must exhibit a white light in a globUlar lantern at a height not exceeding 20 feet above the hull. In navigation a vessel aground is in circumstances similar to a vessel at anchor, and a steamer aground should exhibit the single light required of steamers at anchor. 4. DAMAGES DIVIDED.
Where both steamers contributed to the collision the damages will be divided.
In Admiralty. Libel in rein. Beebe, Wilcox J: Hobbs, for libellants. S. H. Valentine, (with whom was R. D. Benedict,) for claimants. NIXON, D. J. The libel is filed in this case to recover damages arising from a collision which took place about 2 :30 o'clock on the morning of June 2, 1881, between Robbins' reef and Bedloe's island, on the westerly side of the channel, in the bay of New York, between the street department scows in tow of the tug-boat Ant and the tugboat C. J. Saxe, and two pontoons or wreckers in the tow of the said Saxe.
THE ANT:
295
It appears from the allegations of,the libel and the proOfs that the canal-boat Chandler, loaded with upwards of 200 tons of anthracite coal, and while, with other boats in tow of the ateamer Saxe, on a trip from Port Johnson acwss the bay, being overtaken by a storm foundered and sunk in the neighbJrhood of Robbins' reef. The owners of the Saxe purchased the sunken boat and her cargo while in this condition, and employed wreckers to raise her. Pontoons were placed on either side of the boat, and fomchains were passed under her and tightened by jack-screws on the pontoons. When tho tide was low she was lifted from the bottom by the rising of the tide, and was towed by the Saxe, stern foremost with the pontoons, about a,:mile up the bay, at high water. The bow of the canal-boat again struck ;the bottom,which stopped their further progress. Being obliged to remain here until the next full tide, the steamer Saxe having the tow in charge dropped back on the east'side of the erly pontoon and made fast, her bow still facing up the river. She then took down her bow and sidelights, and set vertically on her flagstaff two white lights, about 15 feet above her deck. One white light was also placed on each, of the pontoons on the bow of the west boat, and on the stern of the east one from 10 to 12 feet in height. On the same morning, at about a quarter of 10 o'clock, the steamtug Ant left the foot of Thirty-third street, East river, ,,,,ith two streetdepartment scows, loaded with dirt and garbage, in tow by a hawser, bound for the dumping-grounds outside of Sandy Hook. The tug was about 65 long; the hawser leading to the first scow, 500 feet; the hawser from the first to the second scow, 40 feet; and each scow from 75 to 80 feet in length,-making the total length of the tug and her tow upwards of 700 feet. It was a moderately clear, pleasant night; several of the witnesses testifying that vessels could be seen a mile away without lights. The tide was at the strength of the ebb. The Saxe and her tow did not come under the particular observation of the master and pilot of the Ant until they were within a half or three-quarters of a mile distant. The testimony is very conflicting as to the precise distance. Seeing the two vertical white lights on the Saxe and no bow or side lights, he concluded that it was a steamer with a tow, going in the same direction with the Ant. He continued his course, bearing directly upon the Saxe, until he approached her within a few hundred feet. From the contraditory statements of the witnesses of the respective parties it is quite impossible to tell how near be had come before he
296
ascertained that the Saxe was not in motion. The master testifies that he did not find out that she was at anchor until he was "right along-side." As soon as he discovered that, he put his helm hard a-starboard, bringing his boat to the east, across the bow of the Saxe, and easily clearing her. The scows, however, being under considerable headway, and carried onward also by the strength of the tide, did not readily yield or respond to the changed course of the tug. The foremost one followed the Ant to the east, barely escaping the easterly pontoon, and struck the bow of the Saxe. The rear scow drifted to the west, and came in collision with the western pontoon. When the master of the Ant first perceived that one of the scows was going to the east and the other to the west of the Saxe and the pontoons, he reversed his engine, and slacked up the hawser, "to give the scows a chance," he says, "to go around if they would." When he found that they would not go around he seems to have hooked up his engine again with the inexplicable intention of disengaging the scows from the pontoons by main force, and pulled upon the entangled mass of boats with such energy that the position of the Saxe and the pontoons was so changed that, instead of lying north and south with the tide, they were turned across the bay from east to west. The last scow had drifted around the bow of the western pontoon, and had engaged with the chain under the bow of the canal·boat. In the violence of the effort of the Ant to get clear, the bow of the Chandler, being aground, was torn away, and some of the timbers and portions of the deck came up, floating on the surface of the water. The libel is filed to recover the damages done to the Chandler, and for the loss of a pfLrt of the cargo, consequent upon the injury to the hull. Two questions at once suggest themselves for consideration: (1) Was there such carelessness and want of skill in the navigation of tho Ant as to cause the collision? (2) Did the lights exhibited by the C. J. Saxe mislead the Ant and thus contribute to the
297
excuse appears why she suffered herself to approach so near to the libellant as to render a collision unavoidable. Upon any theory of the case suggested she was in fault. Being a steamer with a long tow, about to pass another steamer, also with a tow, she ought to have avoided the latter. The excuse rendered by the master for not doing so is that he thought the Saxe was in motion, moving to the south. But vigilance and care on his part would have undeceived him some time before he came so near. He depended upon himself and not upon a lookout; and yet the ascertaining of such facts falls within the proper duties of a lookout. The obligation to have one, independent of the helmsman, On board of steamers navigating in the thoroughfares of commerce, has been so often reiterated by the supreme court that it is no longer an open question. St. John v. Paine, 10 How. 558; Newton v. Stebbins, Id. 607; The Genesee Chief, 12 How. 462; The OathaTine, 17 How. 177; Ohamberlain v. Ward, 21 How. 548; Haney v. Steam-packet Co. 23 How. 293; The Ottawa,3 Wall. 268. In St. John v. Paine, supra, Mr. Justice Nelson, speaking for the court, (p. 585,) said: "We are satisfied that the steam-boat was in fault in not keeping at the time a proper lookout on the forward part of the deck, and that the failure to descry the schooner at a greater distance than half a mile ahead, is attributable to this negleet. The pilot-house, in the night, especially if dark, and the view obscured by clouds in the distance, was not the proper place, whether the windows were up or down. The view of a lookout stationed there must necessarily have been partially obstructed. .A. competent and vigilant lookout, stationed at the forward part of the vessel, and in a position best adapted to descry vessels approaching, at the earliest moment, is indispensable to exempt the steam.boat from blame in case of accident in the night-time, while navigating waters in which it is accustomed to meet other water-craft." And in The .Genesee Chief, supra, Chief Justice Taney states the law as follows: "It is the duty of every steam-boat traversing waters where sailing-vessels are often met with to have a trustworthy and constant lookout, besides the helmsman. It is impossible for him to steer the vessel and keep the proper watch in his Wheel-house. His position is unfavorable to it, and he cannot safely leave the wheel to notice when it becomes necessary to check suddenly the speed of the boat. And whenever a collision happens with a sailing-vessel, and it appears that there was no other lookout on board the steamboat but the helmsman, or that such lookout was not stationed in the proper place, or not actually and vigilantly employed in his duty, it must be regarded as prima facie evidence that it was occasioned by her fault."·
298
These observations are pertinent to the case under consideration. I am aware that the absonce of a lookout is ulJirnportant in all cases where the collision arose from other causes, and such absence did not contribute to the loss or disaster. But it cannot be safely affirmed here that the collision is not directly traceable to the neglect in not having a vigilant lookout. It is true that the master in the wheel-house saw Saxe and her tow when distant from a quarter to a half a mile-none too soon, with her tow of nearly an eighth of a mile in length, to have avoided her if he had begun at once to make preparations to do SOj but, perhaps, soon enough. He made no attempt. however. although having abundance of room on either side, to get out of the way, but continued for six or seven minutes to bear directly upon the Saxe, and did. not determine she was stationary until he came within a few hundred feet of her. He then starboarded his helm-a movement which enabled his tug to escape; but any skilful navigator must have known that the mome.ntum of the tow and the force of the tide rendered it impossible for him to IlUll his tow through without colliding. It was still mare faulty navigation, in my judgment, after slacking his speed and finding out that his tow had become entangled with the tow of the Saxe. that he should hook up his engine and endeavor by main force to disentangle them. The damage was caused by this movement, and I have no doubt about the unskilfulness, negligence, and fault of the master of the Ant, and hence the responsibility of the claimants to answer for the damage. 2. Whether the lights exhibited by the Saxe misled the Ant, and thus contributed to the disaster, is a more difficult question to determine. It depends upon the construction to be given to the rules prescribed by congress to prevent collisions on the water. These are found in section 4233 of the Revised Statutes. The following are the only rules that seem to have any bearing upon the present case: The second is. that" the lights mentioned in the following rules, and no others, shall be carried in all weathers, between sunset and sunrise." The fourth requires that "steam-vessels, when towing other vessels, shall carrJ' two bright mast-hea<! .lights, vertically, in addition to their side lights. so as to distinguish them from other steam-vessels." The jifth is that" all steam-vessels, other than ocean-gOing steamers and steamers carrying sail, shall, when under way, carryon the sta.rboardand port sides lights of the same character and construction, and in the same position as are prescribed for side lights byrule 3." The tenth is that "llIl vessels, whether steam-vessels or sail-vessels, when at anchor in roadsteltdsor fair-ways, shall, between sun-
299
set and sunrise, exhibit it can best be seen, but at a height not exceed,ng 20 feet above the hull, a white light in a globular lantern of eight inches in diameter, and so constructed as to show a clear, uniform, and unbroken ·ight, visible all around the horizon, and at a distance of at least one mile," The twelfth rule relates to canal-lJoats, oyster-boats, rafts, or other water-craft, and requires, whether such boats are navigating the waters or lying at anchor, that they shall carry one or more good white lights, which shall be placed in the manner prescribed by the board of supervising inspectors of steam-vessels.
The advocates for the claimants insist that the two white vertical lights on the steamer told a false story; that the true construction of the fourth rule requires the vessel with such signals to be in motion, and that only one light should ha ve been shown after the tow had arrested her progress by grounding on the bottom; that the only inference to be drawn from seeing the two vertical lights aloft, and no green and red side lights on the starboard and larboard sides, was that the steamer was towing other vessels down the bay; and that, if such inference had been correct, the collision would not have occurred. The advocates for the libellants, on the other hand, contend that the fourth rule prescribes that the two vertical lights shall be shown by a steamer when engaged in towing, whetherinmotion or not; that such lights do not necessarily imply their locomotion, but their occupation; that if temporarily stopped by touching the bottom, neither the law nor the practice of navigation requires the (louble light to be taken. down, but to be left burl}ing, so that all approaching vessels may understand that not only the steamer, but her tow, is to be avoided. The expert testimony is, of course, conflicting; about an equal number of pilots on each side testifying that the customary and practical interpretation of the rule is in favor of the party which produced them. For instance, Van Deventer, an experienced piloh offered by the libellants, says that in his long experience the only significance he ever knew to be attached to two vertical white lights on the flagstaff of a steamer was that she was a tug-boat having a tow to a hawser. On the contrary, Mr. Gilkinson, speaking as a pilot forthe claimants, says that if, while descending the river at night, he saw ahead of him two vertical lights; one over the other, as if on a flagstaff, and on the starboard side of the boat two lights nearer the water.. he would understand there was a tow going the same direction with him down the And the;re seems to :be a like contrariety
300
of opinion on the question whether a steamer having a tow and running aground in a public thoroughfare for vessels should continue to exhibit the two white vertical lights, according to the requirements of the fourth rule, or the single white light prescribed by the tenth rule for all vessels lying at anchor in roadsteads. All the pilots who were interrogated on the subject by the libellants considered it their duty to leave the two lights up after grounding, and all who were examined by the claimants were equally positive that custom and good navigation demanded that one should be taken down. get quite as little information from any judicial construction. The fourth and tenth rules, as they appear in section 4233, were originally enacted by congress as the fourth and seventh, in the act of April 29, 1864, (13 St. at Large, 59,) and, if possible, ,must be so con::;trued that both may stand. The fourth prescribes the proper lights for steam-vessels "when towing other vessels i" the tenth, the light that must be exhibited by all vessels, whether steam or sailvessels, "when lying at anchor in roadsteads or fair-ways." In the one case, there must be "two bright white mast-head lights, vertically, in addition to their side lights." In the other, "a white light in a globular lantern at a height not exceeding 20 feet above the hull." There is much force in the suggestion of the advocates of the libellants, that the object and purpose of the fourth rule is disclosed in the rule itself. Why should steam-vessels, when towing other vessels, carry two white vertical lights? The rule says, "to distinguish them from other steam-vessels," and not to show that they are in motion. It is important that they should be distinguished from other vessels, from the fact that a steamer with a tow is more helpless and unwieldly than one not thus encumbered, and more care is demanded on the part of vessels meeting or passing them. The rule was adopted from the English act, and support is given to this construction by the observations of Sir Robert Collier, in the case of The American and the Syria, L. R. C. P. C. 131. Speaking for their lordships in privy council, on appeal, and considering the provisions of the rule, he said: ., In 1863 an additional article [the rule in question] was promulgated, requiring the towing steamer to exhibit two white lights instead of one; doubtless for the purpose of warning all approaching vessels that she was encumbered, and not in all respectslliistress of her movements."
But while this was, without doubt, one purpose of the rule, it is not, in my judgment, the only purpose. It is fairly to be inferred
301
from its phraseology, interpreted in the light of the provisions of the tenth rule, that the two white vel'ticallights also signify that the tow is in motion. In navigation, a vessel aground is in circumstances quite similar to a vessel at anchor; and the spirit, if not the letter, of the two rules is best ascertained by holding that a steamer with a tow, whether aground or at anchor, should exhibit the single light requirecl by the tenth rule. The Ant was misled by the double.verticallights, and was brought into much closer proximity to the tow than she probably would have come if she had been advised by a single light that the Saxe was not in motion. The testimony shows such ignorant Or negligent navigation on the part of the master of the Ant that it is doubtful whether he would have cleared the Saxe on an exhibition of the legal signal; but, under the circumstances, I think the claimants are entitled to the benefit of the doubt, As the Saxe thus contributed to the collision, I must hold her also in fault, and order the dam:ages to be divided; and a decree will be entered accordingly.
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FEDERAL BEPORTER.
LINDSAY, GRACIE
&
CO.
v.
CUSIMANO.-
(JJistrict Court, E. D. Louisiana. ,hnuary 14, 1882.) 1. OHARTER-PARTy-"OUSTOMARY DISPATCH."
The mcaning of the words" customary dispatch" in II cllarter-party, relative to the disellarge of a vessel, construed and explained. These words, "customarydispatqh," mean the usual dispatch of persons who are ready to receive a cargo, and exclude all customs in accordance with'which the charterers claim they might, notwithstanding opportunity, decline to receive, simply because it was more advantageous to postpone. , Kea1'on v. Pear8fJn, 7 Hurl., & N. 386.
2.
CuSTOMS OF THE PORT-OBLIGATIONS OF OHARTE11ER8AND OONSIGNEES.
The customs of the port cannot qualify the obl:gation of the charterers and COnsignees to obtain a berth where, the' vessel cuuld have" customary dispatch," , Sm.ith v. YellO'UJ PineL'Umber, 2 FED. REP. 400. , 8. BILl, OF LADING-UNLOADING CARGO-CHARGES FOR COVERING CARGO AFTER DISCHAllGE.
,.Where tile bill pf lading provideS that the cargQshould delivered from the ship's deck, when the ship's responsibility should cease, the obligation to protect the cargo, after it was placed upon the wharf, was upon the charterm·s. Turnbull v. Blocks of Marble, 9 FED. REp. 320.
The steam-ship Glenbervie, having brought a cargo of fruit from Italy to New Orleans, under a charter-party providing that she should be discharged with customary dispatch, her owners instituted this suit against the consignee to recover demurrage for unusual and unnecesRary detention in discharging, and for sundry items of charges made against her by the consignee in settling for the charter-money. Joscph P. Hornor and Francis W. Ba,kcr, for libellants. Charlcs B. Singleton and R. Horace Browne, for defendant. Bn'LINGS, D. J. The principal discussion in this case has been as to the meaning of the phrase in the Charter-party, "to discharge with customary dispatch," and, subordinately, whether the consignees are to pay demurrage for any portion of the 16 days elapsing between the time of the arrival of the ship at the port of New Orleans and the time when the discharging of her cargo was completed. The testimony shows that it is the custom of the fruit dealers at that port to receive their fruit from the vessels no faster than they can sell it at the wharves. The fruit could have been received more rapidly and the discharging been sooner completed, but the consignees declined to receive it in any greater quantities than could -Reported by Joseph P. Hornor, Esq., of the New Orleans bar.
