THE LlZZmW· VIRDEN.
900
benefit of cooling the new air by the cold of the old air, I think there is so much doubt on the question of infringement as to require that the new apparatus be embraced in a new suit, and that the motion for attachment be denied.
TIBBALS 'V. DAB1'.
(Gitrcuit (Jourt, S. D. NtM York. December. 6,1880.).. PATBNT8-1NFmNGEHENT-DECREE.
Where one claim of a patent was infri nged and the. usual decree will be entered.
were not, the
. THE Llzzm W. VIRDEN. (Oircuit (Jourt, E. D. New York. September,1881.) 1. CBARTER-PARTy-PERILS OF THE SE,\9.
Ship-owners, not the charterers, take the risk of the condition of the vessel. the risk of there not 'being heat and steam, and the risk of so cleansing the vessel as to take the cargo safe from damage by petroleum, notwithstanding heat and steam. 2. SAllE-DAMAGE FROM PETR01JUJM. In the absence of a clause in the charter-party providing for the cleansing of the vessel in a specified manner, or for taking only specified cargo, or for· freeing the vessel from petroleum· damage to specified cargo,' damage. from petroleum occasioned by leakage, di1fusion,or impregnation is not a peril of the sea. .
Motion for reargument. F. A. Wilcox, for libellants. R. D. Benedict, for claimants.
904
FEDERAL REPORTER.
BLATCHFORD, C. J. One of the grognds of the motion for a reargument in this case is that the court erred in its former decision in saying that "the staining of the almonds by steam and sweat, or by sea. water, was not allowed for." Elsewhere, in its decision, the court said that "no allowance was made by the district court for damage by the steam or sweat of the hold, aside trom petroleum damage, or for any injury by steam or sweat which did not convey petroleum." The interlocutory decree of the district court ordered that the libellants recover "the damages by them sustained by reason of the impregnation, during the voyage mentioned in the libel, of the almonds in said libel mentioned, with the flavor and odor of petroleum." The commissioner was directed to ascertain and report "the amount of such damages." The presumption is that the district court allowed only for such damage. It is contended for the claimants there was actual damage to almonds by steam and sweat, and also by sea water, as perils of the sea; that the steam and sweat, and the.sea water, wet and stained the bags, and thus injured almonds. in such bags, aside from any impregnation of them by petroleum taste or odor; that there was no stain.ing of bags by actual contact with petroleum, except as petroleum impregnation was conveyed by steam or sweat or sea water; and that thus, where there was this wetting and staining, was inj ury from that cause, and further distinct injury from the petroleum fumes which the wet absorbed and imparted to the almonds in the bags. The claimants refer to the testimony of Josiah Rich, Jr., to the effect that where there is a stain on the bags which almonds come in, the mere stain affects their market value; that water stains affect the market value of the nuts; and that where there is a stain of the bags by steam or sweat or sea water, the articles in the bags have to be examined to get at the extent of the injury. This testimony is very general. The witness did not examine any of the bags or almonds in question. The claimants also refer to the testimony of Josiah Rich, Sr., to the effect that it is an injury to bags of almonds if they are stained. The almonds arrived at New York about February 5, 1874. On the twentieth of February, 1874, this witness, as a fruit brokel" in conjunction with C. B. Wyckoff, examined the almonds called the Nordlinger lot. This lot comprised 850 bags Wallis & Co. and 425 bags F., of Ivica almonds, in bill of lading No.2, and 798 bags G. A., of Tarragona almonds, in billpf lading No. 1. In respect to this lot the district court and this court allowed as damage $725.99, made up thus: It cents a pound on 3,570 pounds in 62 bags of
THE LIZZIE W. VIRDEN.
905
the 850 Wallis & Co., Ivica, $53.55; 1t cents a pound on 31,180 pounds in 272 bags of the 425 F., Ivica, $467.70; and 1 cent a pound on 20,474 pounds in 190 bags of the 798 G. A., Tarragona, $204.74, Mr. Rich and Mr. Wyckoff reported in writing February 20, 1874, that "the whole parcel"-that is, all'the 2,078 bags so examined .by them-were "more or less impregnated with the odor of petroleum; " that the 62 bags Wallis & Co., lvica, and the 272 bags F., Iviea, and the 190 bags G. A., Tarragona had been "actually stained and danlaged with. petroleum;" aud that "the damage sustained by the ,wbole parcel"-that is, the 2,073 bags-"in consequence of the stains and odor of petroleum" was $725. On the twenty..fifthof February, 1874, Mr. Rich and Mr. Wyckoff examined the almonds called the Deahi and Hyberger lot. This lot '750 bags G.A., of Tarragona this lot ,the district coji)l;t aJmonds,in bill of lading No. 1. apd this courlallowed asp.amage:$215 ·. Mr. Rich' reported in writing February, 25, 1874, that "the whoJe or paxceFI that is, the 750 bags-was "more.or less impregnated with the odor of petrole.um;" that 190 bags of the 750 had been "actually damaged with petroleum;" and that "the damage whole parcel"-th:),t is, the ,750 bags-"in consequence of the lltains and odor of petroleum" was $215. On the first of May" 187t, ¥r. Rich and Mr. Wyckoff and James M. Heron examined the almonds out of the shell, known as the Gomez & Arguimban lot. This lot comprised 100 bags G. A., of Malaga almonds, in bill of ing No.3. In respect of this lot the district court and this COU1't allowed as damages $571.23, being 3t cents a pound. on pounds. Mr. Rich, Mr. Wyckoff, ap.d Mr. Heron reported in May I, 1874, that they found the almonds in the 100 bags "d8Jl1laged by contact with and odor of petroleum ;" and that the extent of said damage was an average of 31 cents a pound "on the whole lot or parcel." , On his examination as a witness for the libellants, at the trial in the district court, in April, 1878, Mr. Rich testified to the correctness of these three reports, and stated that they laid aside almonds damaged by sea water, and did not include them in the reports. In October, 1878, on the reference as to damage, the claimants examined Mr. Rich as a witness on their part, and he then stated, as stained; above, that it is an injury to bags of almonds if they and also, on his direct examination, gave the following testimony) to which the claimants direct attention:
906
, ," f{uestion. Supposing those bags of almonds that you examined had been stained to the extent that they were but with sea water and sweat of the hold, how would that damage have compared with the damage as it was? A. It is hardly fair to make a comparison. Damage by sea water is damage by itself, and damage by odor of petroleum is a different'thing altogether. You can't compare them. One may be' very serious, arid the other may be very serious. Q. Supposing these bags were stained by sea water or sweat of the hold to the same extent ,as they were stained in this particulal', case, what would have been the damage to the almonds in that case from that stain, aside from petroleum? A. The external appearance of the stain might be as great on the surface of the bags if they are stained by sea water, as if stained by anything else. Q. What would be the extent of injury from that stain? A.. It is pretty difficult to arrive at a very accurate solution of that question. had been si mply They would have been damaged, unquestionably, if the sea water stains, but not to more than half the extent that we estimated the damage by what we supposed to be petroleum stains. .Q. The presence of the stain of sea water or sweat of the hold always carries with it the idea of injury to the nuts under the stain from soo water or sweat? A.. Yes. (J. You include that injury in what you have just said, do you not? A. Yes."
But Mr. Rich, on the Bsme reference, also testified as follows on his direct examination for the claimants in regard to the report as 'to the Dean & Hyberger lot: , tnDer.
.. Question. What amount of the $215 did you appiy to the 190 bags? AnIt is pretty hard to separate. 'rhe principal part of this allowance of
$215 was intended to apply to the 190 bags. ' 'rhe balance of the 750 bags we supposed to be more or less injured by the odor of petroleum, and we included something in consequence of that; but the principal qamage that the whole in the 190 Of this I suppose, there is lot sustained 'ras at least $150 of it applied to the 190 bags. Q.Was there a difference in the injury, in the conditioIl of the 190 bagS, so far 3S the odor of petroleum was con. cerned, from the condition of the othera, or were tbeyallaffected with the odor otpetroleu m? 'A. 'rhe odor of petroleum, we thought, extended more or less' through the whole ,lot, but the 190 bags were more part1cularl)' affected by it, because they had, actually C!)me in contact with it. I think there was a difference. Q. You say $150, you think, would'be perhaps applicable to tile 190 bags. How much of that would be allowed for damage occasioned by stain, and how much' by odor? A. The stained bags could be remedied by buying new bags. Q.Would there be injury to the nuts, if it were an injury from sea water that had madel the stains? A. There would be. Q. How much, would that amount to.? A. It would be hard to say. They were more injured, of course, than the others, but the per cent. is very difficult to arrive at; 190 bags had stains on them, and those stains beIng odorous, and a similar, odor in the whole lot, we put in the whole lot as m'ore' or less affected,but we considered the effect on the balance ofthe lot as very slight indeed-'-that is, the 560 bags. The ,damage to that was verysUght, because they hadn't come in contact as I said before" tl1e damage with what stained the other bags. I
THE LIZZIE W. VmDEN.
907
to the 190 bags was the bulk of the damage that the lot sustained. Q. Did you make any estimate at the time-divide off these damages? A. I did not. We estimated the damage sustained by the whole parcel. Q. The damage to the 190 bags alone,' that you· did not estimate? A. No, sir; not by itself." On the same reference Mr. Rich also testified as follows, on his direct examination for the claimants, in regard to the report as to the Nordlinger lot: "Qv.estion. Did you make any estimate at that time of the amount of damagoe that had been sustained by those that you speak of there as having suffered by contact with stain? Amwer. We thought that the bags that had actual stains on them were considerably more damaged than the but I do not know how we got at the specific estimate just now; but w;e did make an estimate of the damage to each parcel, and then we added something for those that were not stained, and it was about in the same propOrtion as the other Duts-the lot in the other exhibit." On the same reference Mr. Rich also testified as follows, on his direct examination for the claimants in regard to the report as to the Gomez & Arguimbau lot: "Question. Did you make any distinction of the damage suffered by any portion of that 100 bags whiCh had been. stained, as distinct from those that had not been stained? Answer. There were some bags that were not actualll' stained, and we did make a distinction. Those that were stained were damaged worse than those that were not stained, but it is so1Qng ago I can't distinctly remember what proportion was actually stained and what was not. !fhose that were stained were damaged certain.ly twice as much as those that were not.. Q. You mean t1:lat those damaged in,Exhibit E (the Nordlinger lot) was about in the same proportion as Exhibit F, (the Dean & Hyberger lot?) .A. Yes. Q. Do I understand you that it was proportionate to the different amounts of almonds in the two lots? A. Yes; We estimated the whole damage at $215, and I said $150 of that applied to those that were I should say those that were stained were damaged two-thirds more than those that were not stained." . Reference is also made by the claimants to testimony given by Mr. Heron, on his direot examination on the part of the claimants, on the reference 8S to damages in regard to the Gomez & Arguimbau lot, as follows: .. Question. Did this lot of 100 bags suffer any injury in their market value by reason of the stained condition of the bags? .An8Wer. They did. Q. Aside from the injury to. the market value which out of that stained condition of the bags was there any ;injury to their market value? ..d. 'rhere was in some cases in some bags. Q. In how many bags out of the hundred? A. I could Dot say. That is where our loss, comes in. We threw ,them out as mouldy. . Q.Any time, aside from the injury to the value occasioned by the stain on the bags, and aside from those thatfotithreVt out as mouldy;
908
FEDKRAL REPORTER.
was there any other injury? A. No, not when they were selected.......,macle over again. When I examined them in the store I considered them damaged then with the smell of petroleum. Q. HowQ.id the examination that you made of them in the store compare with the subsequent examination that you made? A. Altogether different. Q. Which was the more complete examination? A. 'rhat in our own store. Q. Do you say now that there was any injury to those nuts except the injury arising from the stained condition of the bags and the mouldy nuts; from your personal knowledge, I mean? A. No, I think there was nonej no damage beyond the stain and mould, as I subsequently ascertained."
Mr. Herein signed the report of, May 1, 1874. He was examined its a witness for the libellants on the trial in the district court, in, 4pril, 'He was in the bQsiness of buying and selling almonds. He stated in such testimony that he found some of the 100 bags stained on the outside, apparently with oil;' that some of the nuts, aUof them being ahnqnds out of the shell, were mouldy, and ; and that some nea.r the stain tasted some 'bad the smell of them to of petroleum. He purchased' these almonds. He, the air and picked some of them over, and then sold some of them as sound, throwing out what were soft and mouldy, and, getting rid of t:Qe petrqleum smell.' On his cross-examination on the reference he testified that when he examined them to make the re,port,he considered them damaged, on account of petroleum, in their market value, at''theamo'tlnt stated in the report; that his view at the time was that he gave fodhem all that they would have brought in the market, in the damaged condition in wnich he at the time supposed 'them to; be; that, 'he gave them athorongh examination with a view to making the report; and that all the nuts which were damaged by mould had the smell of petroleum; ·· The claimants contend that sea. water and sweat were not ian iIiconsiderable cause of damage to all of the almonds. Refel'enQe, is made ,by the claimants to the testimony of John: L. Piper, a custom.houseappraiser, who, on being shown a report dated June 22, 1874, stated tha.t he signed it, and that the, cause of damage stated in it to the almonds mentioned in it was sea water 'and the heat oithe. vessel. This report does not 'appear to be in,evidence. He was shown another r.eport, dated July 27, 1874, signed ,hyhim, containing the words "andpetroleurn;" and the permeated with 'petrolenmoil/'.which· report does not appeartb be in evideuce., . E,lsEl)'vhere, iii thEl saIne testimony, he states that he recol· lect.s examining, "100 bags of shelled almonds," and "some 50 01 morel;>ags shelled almonds.... and other articles from this vessel.
of.
909
about the middle of February; that he found the articles more or less damaged; that "the cause of the damage was petroleum oil and sea water, slightly; the heat of the vessel also;" that the most of the damage was petroleum oil, indicated in the appearance, the odor, and the taste; and that he gave the damage all those tests, and came to the conclusion that the most of it was petroleum oil. The ants contend that the evidence shows that the 100 bags constituting the Gomez & Arguimbau lot were on the top of the other cargo, and were stained, and did not come in contact with petroleum, and therefore must have been stained by steam and sweat and sea water; and that it must be inferred from the evidence that the stains in the other lots were from the same cause. The damage resulting from such staining of the bags, it is contended, was a peril of the sea, which would have existed under the circumstances of this voyage if the vessel had never had any petroleum in her. This damage, it is claimed, has been included in the allowance made. In reply the libellants contend that the proof shows that the dam':' age did not arise from a peril of the sea, but from petroleum, both by actual contact and by impregnation; and that everyone of the three lots actually came in contact with petrOleum. They refer to the language, before cited, of the three reports in regard to the three lots, and to the testimony of various witnesses. Wyckoff, who signed all three of the reports, testified at the trial that he Elxamihed the three lots and that the report was correct ; that the stains on the bags in the Nordlingerlotwere principally by petroleum oil; that by smelling, feeling, and tasting he c<!lncluded the stains were petroleum stains; that he examined the Gomez & Arguimbau lot bytouching, tasting, and smelling; and that he also examined the Dean & Hyber. ger lot. The clear deduction from all the evidence is that there was no damage by staining or wetting which did not also have the impreg.. nation of petroleum. Some 'almonds may<ultimately have been dis.. carded as mouldy, but the petroleum damage to them rendered. them unmerchantable at the time they were delivered from when the libellants were rohave them merchantable. It wa.s uncertain how they would turn out, ,and what the speculation of buy.. ing them would result in, and whether the petroleum odor and smell could be got rid of. All the withess6swho exam:iMd the almonds carefully, speak of the main damage as being the petroleum. There were sea water and sweat, as the port wardens say, but the sea, water and sweat were vehicles for the petroleum fumes. The observation
910
. FEDERAL REPORTER.
of the port wardens was very superficial, and extended to only a few bags. Bourdette did not handle, taste, or smell the almonds, nor does it appear that Leaycroft did. The witnesses who applied feeling, smell, and taste, found petroleum. Petroleum was the greatest cause· of damage, very clearly. There was petroleum damage where bags were stained, and there was petroleum damage where bags were not stained; but there was no sea water or sweat unaccompanied by petroleum damage. The claimants contend that one-third of the $725.99 and of the $215 should be stricken out as damages, and that the $571.23 should be stricken out entirely, on the view that the amounts so to be stricken out appear to be damage by sea water and sweat, and not by petroleum. But a careful consideration of the evidence and of the argument for the claimants leads me to the saine conclusion as before-that more has not been allowed than ought to have been for purely petroleum damage, and therefore that nothing was allowed for damage by steam and sweat, and by sea water. The claimants contend that whether cargo be .damaged by the direct effect of the heat of the vessel, or by direct contact with the sweat of the hold, or by the disengaging of vapor. from other· cargo or from the vessel herself, the damage is, in each of such cases, the result of the heat and dampness, and is due to perils of the sea. Various cases are· cited where the carrier was held not liable,-the loss of through fermentation of it by heat j the rusting of cargo through sweat occasioned by the heatj the leaking of casks of oil from heat in the hold jthe leakage of lard in hot, latitudes; injury to wheat by carrying it with kerosene; injury to flour by carrying it with sugar,-and it is. urged that as the libellants knew when they chartered the vessel that she was to take out a cargo of petroleum, they are chargeable with what was the necessary tesult of the heating and sweating of the hold in the liberation of the vapor of petroleum from the wood of the vessel. There is a clear distinction between all such cases and the present case. The ship-owners, notwithstanding any knowledge the charterers had; guarantied in writing, by the charter party,. that the said vessel, in and during the said voyage, shall be kept tight, staunch, well-fitted, tackled, and provided with every requisite· for a voyage back to New York with any lawful merchandise the charterers should think proper to ship.· The ship-owners, not the charterers, tooknnder this contract the risk of the condition of the· vessel, the risk of there not being heatsnd steam, and the risk of so> cleansing the vessel as to· take the cargo safe from petroleum dam-
THE KEY' WEST.
911
age, notwithstanding heat and steam. It was easy to have put iil a clause providing for the cleansing of the vessel in a specified man:ner, or for taking only specified cargo, or for freeing the vessel from petroleum damage to specified cargo. . The motion for a reargument is denied. See 8 FED. REP. 624.
THE KEY WEST.(OireuU OOUf't, E. D · .Louisiana.
November 25,1881.)
L
SALVAGE-FROM:
FIRE AT PIER.. Where a tug-boat and the river salving boat both came to tho.relief of a steamer on fire at a pier, arriving at about the same time, the tug endeavoring to pull out into the stream a vessel lying beside the burning vessel, Ml,d, that the river salving boat, by throwing water on .the veS3el in dangef, rendered meritorious service, and of value to the salved vesseL
2. SAME-RIVAL SALVORS.
Though two salving boats did not work in harmony nor to the best advantage, and the efforts of one embarrassed t}le other, but not intentionally, 8I)jj there was and effort, yet the service was meritorioWl . and of value to the salved vessel,. . 8. SA.M:E-DISTRmlJTION OF AWARD.
Each case of salvage must stand on its own merits, with regard to the rate of distribution of the sum awarded, betw;een owners and crew, but regard be paid to the value and time of service of each.
Appeal in Admitalty. M. M. Cohen, for libellants. O. B. San sum, for claimants. PARDEE, C. J. This suit is for salvage serviC"es in case of fire in the port of New Orleans. The following facts are undisputed. (1) That on the morning of January 5, 1881, the steam-boat Win. Fagan, lying at the wharf at the head Of Bienville street, in this city, took fire and soon burned. (2) That the steam-boat Key West at the time lay of the Fagan, the bows of the two boats about six feet apart, and the sterns a much greater distance apart, the Key West being below the Fagan, with the wind and eddy both going upstream. (3) That the alarm of fire was ringing the boat's bell. as fast and as given by the Key West, the hard as he could. (4) That in response to the. call the tug-boat Charlie Wood and· the river salving boat Protector came to the assistance of the burning vessel; arriving there about the same time... (t) The Wood, coming in on the lower side of the Key West, made fast and pulled theK:eyWest out *Reported by Joseph P.Hornor, Esq.· orthe riew Orleans