OpenJurist

_

TIlE RoMAN.-

(Di8triot (Jourt, E. D. Pennsylvania. March 31, 1882,\

1.

ADMIRALTy-CoLLISION-FAILURE TO

DI8PLAY TOltCH-iNFLAMMABLE CAltGO. The fact that a vessel carries a deck load of pine wood will not relieve het from liability for a collision caused by the failure to exhibit a lighted torch upon the approach of a steamer and the substitution of a less brilliant li'ght in place thereof.
If in such case the light actually exhibited should have been seen by those i1), charge of the steamer in time to avoid the collision, and the failure to see such light contributed to cause the colliSion, the loss will be apportioned between both- vessels.

2.

SllIE-NEGLIGENCE OF STEAMEn.-:-FAILURE TO BEE LIGHT.

by the master of the schooner Theresa Wood against _the steam-ship Roman, to recover damages for injury to the schooner by collision. The following facts appeared from the testimony: The collision occurred in the Atlantic ocean off Great Egg harbor. The night wa!'l dark, but not stormy. The schooner was loaded with pine wood, and carried a deck load of the same material. She had only her jib-sail set, the other being lowered. She was standing off shore, b,eading a little to the E. S. E., and was 'making no headway. The steamer was on a course N. E. by E., and was seen from the schooner when the vessels were about a mile and a half distant. No lighted torch was shown, as required by act of congress, but instead thereof a globe lantern, containing a bright light, was swung by the mate standing in the stern of the schooner. The respondents alleged that this light was insufficient, and was not seen from the steamer, and that the collision occurred through the failure of the schooner to exhibit a proper light. The libellants alleged that the inflammable nature of the cargo rendered the lighting of a torch on deck dangerous, and that they were authorized, by a notice of the secretary of the treasury issued September 22, 1871, to 6ubstitute in such case a globe light therefor; that the light substituted should have been seen from the steamer, and was actually seen by some of the crew; and that the collision was caused by the bad steering of the steamer. Upon the question as to the sufficiency of the light, and whether it was seen from the steamer, the testimo,ny was conflicting. John A. Toomey and Henry R. Edmunds, for libellant. Henry G. Ward, for respondents·
· Reported by Frank P. Prichard, Esq., of the Philadelphia bar.

220

WBDBBAL REPORTBR.

BUTLER, D. J. Both vessels were in fault; the schooner for failing to display a torch, and the steamer for failing to see the light substituted for it. The torch is required by statute; and the circumstances of this case exhibit no excuse for not displaying it. The light substituted was much less brilliant and effective. Still this light pould, and should, have been seen by the steamer, if displayed intime; and! believe it was so displayed. The uncertainty of witnesses respecting time and distance is fully appreciated. Still, if the libellant's witnesses are truthful it cannot well be doubted that this was exhibited when the steamer was Bome hundreds of yards off. They, are corroborated in this by a member of. the steamer's crew, who declared, immediately after the collision, that he saw the light and reported it to the mate, in time to avoid the collision. I say "one of the crew," because the circumstances fully justify this inference. The ingenious argument based upon the position of the steamer's lights, as seen; or supposed to have been seen, by libellant's witnesses, is neither conclusive nor safe. There is even more uncertainty here than in the matter of time and distance before referred to. The order in which the respective lights came into view of the several witnesses depended upon a variety of circumstances. Each vessel should bear a part of the loss, and a decree will therefore be entered for half damages.

BOTES OF DEOISIONS.

'221

Patents. LEHNBENTER 11. HOLTHAUS, 21 O. G. 1783. Appeal from the circuit court of the United States for the eastern district of Missouri. The case was deter· mined in the supreme court of the United States on March 6,1882, Mr. Jus' tice Woods delivering the opinion, reversing the decree of the circuit court which dismissed the bill, and remanding the cause for further proceedings in conformity with the opinion of the supreme court. In an action for infringement of a design patent, where compal'ison of which it is the drawing appended to the patent with the cut of the admitted represents articles manufactured and sold by defendants, makes it clear that the latter is a servile copy of the forlner, excepting a Blight inclina,tion backward, hardly perceptible, of the glass constituting the front of the elevated portions of the show-case, the subject of the design, it is an infringement of the patented design. The patent is prima facie evidence of both novelty and utility, and the fact that it has been infringed by the defendanl:8 is sufficient to establish its utility. at least, as to them. Citing Whitney v. Mowry, 4 Fish. 207 Patent-Reissues-Enlarging Scope of Original. MATTHEWS '0. BOSTON MACHINE CO. Appeal from the circuit court of the United States for the district of Massachusetts. This case was determined on appeal in the supreme court of the United States on March 27,1882. Mr. Justice Bradley delivered the opinion of the court affirming thedeci'ee of the circuit court. Where complainants, in their reissue, split up and divided the elements of their invention, and claimed them separably and not in combination, it is an enlargement of the scope of their patent; and where no one could infringe the original patent unless he uses all the elements of the combination,and 'anyone will infringe the reisstie who uses any of the elements which, in the reissue, are separably claimed, such reissue is void. Where there is' a wide departure from the original invention, and not only for a broader claim made many years after the original was granted, but for a different invention, the reissue cannot be sustained. George Harding and George L. Roberts, for appellants. Causten Browne, for appellees. Patents-Reissues-Laches. BANTZ '0. FUANTZ. Appeal from the circuit court of the United States for the district of Kentucky. This case was determined in the supreme court of the United States on March 20, 1882, Mr. Justice Woods delivering the opin. ion of the court and affirming the judgment of the circuit conrt. Where, under ihe original patent, suit could be maintained only against those who employed the combination embracing all the distinct contrivances described in the reissued patent, a reissue which claims each device separably is too broad, and consequently void. If any correction was desired it sh,'uld have been applied for immediately-the right is abandoned and lost by un· reasonable delay. Miller v. Bridgeport Brass Co. 3 Morr. Trans. 419, followed.