Neither discovery nor invention was necessary to do this. The defendants' witnesses, upon the defence of want of novelty, refer to several forms of corrugated iron previously used, and all would fill the specification and claim made by the complainant. . The fact that the iron, at the point of contact with the wood, is double in thickness, or that the nail holes at the joints may be made elongated in order not to interfere with the nails in case of expansion or contraction, lengthwise, of the corrugations, will not sustain the patent; nor will his manner of forming the joints connecting the several sections of ing aid him. There is no novelty in the latter. The bill is dismissed, with costs.
and others v. THE FERRy-BoAT F. B. NIMIOB:.
(District Oourt, W.
Pennsylvania. - - 1880.)
ADmRALTY-SEAMEN'S WAGES-REV. ST. H 4546 AND 4547.-The pro. cedure alithorized by sections 4546 and 4547 of the Revised Statutes, in relation to seamen's wages, is a summary and cumulative remedy given to seamen, which they may pursue at their option; but they are not thereby deprived of the right in the first instance to the ordinary admiralty process against a vessel, upon a direct application to the court or judge. .ADMIRALTY JURISDICTION-FERRY-BoAT.-A steam ferry-boat, plying between two points on the opposite sides of the Ohio river, within the same state and county, is subject to admiralty jurisdiction.
Knox <t Reed, for libellants. Barton <t Sons, for respondent. ACHESON, D. J. In this case Alonzo Murray presented in open court his libel for wages against the steamboat F. B. Nimick, wherein he alleges "that the said steamboat is a vessel duly enrolled and licensed under the taws of the United States, in the office of the surveyor of customs for the port of Pittsburgh, and has been engaged in navigating the Ohio river." The court ordered the libel to be filed and process to issue against the boat.
HURRAY fl. FERRY-BOAT.
. T. W. Fowler, the owner of the boat, has moved the court to quash the proceedings and dismiss the libel, for the following reasons: . "First. That said libel filed by said libellant is. a claim for seaman's wages, and that the said libellant has not complied with the act of congress, (July 20, 1790, Rev. St. §§ 4:54:6 and 4:547,) in not having a commissioner certify to this honQrable court sufficient cause of complaint, as required by the terms of said act." "Second. That said respondent's vessel is a. steam boat, running between two points or places in the same state, within the body of the same county, to-wit, between the foot Qf Locust street, Allegheny City, Pennsylvania, and Cork's run, on the opposite side, being enrolled and licensed as such at her home port, the city of Pittsburgh. " In support of the motion, there has been produced and £led a certified copy of the boat's enrollment, showing that she ia a steam ferry-boat of 64: tons, and the libellant admits it to be true that, during the period covered by his claim for wages, the vessel plied as a steam ferry-boat between points Qn opposite sides of the Ohio river, to-wit: Allegheny City and Cork's run, within the county of Allegheny and state of Pennsylvania. 1. SeQtions 4:54:6 and 4:54:7, of the United States Revised Statutes, which re-enact substantially the provisions of section 6 of the act of July 20, 1790, provide that if the wages of any seaman are not paid after they become due and payable, Qr in case of a dispute touching the same, the district judge, Qr, in certain cases, any judge or justice of the peace, or any eommissioner of a circuit court, may summon the master of the vessel to appear before him and show cause why process should not issue against the vessel; and if the master neglects to appear, or appearing does not show ,hat the wages are paid or otherwise settled or forfeited, and if the dispute is not forthwith settled, the judge, justice or commissioner shall certify to the clerk of the district court that there is sufficient (lause whereon to found admiralty process, and thereupon the clerk shall issue process against the vessel, etc.
The question intended to be raised by the first reason assigned, in support of the motion to dismiss the present libel, is whether the proceedings authorized by the statute are the exclusive remedy for a seaman suing the vessel for his wages, or can he, without resorting to this preliminary measure, apply to the court, and upon such application obtain ordinary process in admiralty against the vessel? This question has not hitherto been raised in this court, although the records show a number of instances where the same COllrse was pursued in suits in rem for wages, as in the present case. The question, however, has received the careful consideration of district judges of learning and large experience in admiralty cases, who have held that the remedy conferred by the !.'tatute is not exclusive, but cumulative; and that the right of the seaman to arrest the vessel is not dependent upon a previous resort to the statutory proceeding, but that it is optional with him whether to pursue the preliminary measure of summoning the master, or make direct application for admiralty process. The Ship William Jarvis, (per Sprague, J.,) Sprague's Decisions, 485; The M.· W. Wright, (per Longyear, J.,) 1 Brown's Ad. Rep. 290; The Waverly, (per Dyer, J.,) 7 Bissell, 465. The first two of the above cited cases arose under the act of 1790; the latter, under sections 4546 and 4547 of the Revised Statutes. These are well considered cases, and they adopt as applicable to remedies, under the maritime law, the well settled rule of construction that where a statute provides a new remedy it is cumulative, unless the statute expressly or by necessary implication takes away the common law remedy. Sedgwick on Cons. of Stat. and Com. Law, 75. In the foot note to the report of the case of The William Jarvis, supra, it is said that in many reported cases it seems that no such preliminary summons issued, e. g. The 1vla1,tha, BI. & How. 156, and Judge Dyer says, (7 Bissell, 471:) "It has long been the practice of this court, and the practice of the district courts of other districts, to treat these provisions as furnishing rather an optional and cumulative remedy, than one which excludes the seaman from the right 01' privilege,
MUnRAY 'V. FEnRY-DOAT.
in the fiXBt instance, to resort to admiralty process. It Following the above quoted decisions, I hold that the procedure authorized by the statute is a summary and cumulative remedy given to the seaman, which he may at his option pursue, but that the statute does not deprive him of the right in the first instance to the ordinary admiralty process against the vessel upon a direct application to the court or judge. 2. The second reason assigned in support of the motion to dismiss the libel raises the question whether a steam ferryboat, plying between points on the opposite sides of the Ohio river, within the same state and county, is subject to admiralty jurisdiction? Many of the cases bearing upon this question, cited in support of the motion to dismiss, are without authority, since the more recent decisions of the supreme court, which declare that the admiralty jurisdiction of the federal conrts extends to all navigable waters. Hine v. T1'evor, 4 Wall. 555; The Eagle, 8 Wall. 15. Navigability, so far as water is concerned, is now the only test of admiralty and maritime jurisdiction. ld.; The General Cass, 1 Brown's Ad. Rep. 334. It is immaterial, therefore, that the F. B. Nimick plied wholly within the county of Allegheny, nor is it material, it seems to that in the course of her navigation she merely crossed and recrossed the Ohio river; for admiralty jurisdiction does not depend upon the length of the voyage. The General Cass, supra. The subject-matter of this libel being of a maritime nature, viz., wages earned by an employe upon a vessel navigating waters within admiralty jurisdiction, does the jurisdiction of the court fail merely because the vessel upon which the libellant was employed was engaged in running as a ferryboat? Clearly not, it seems to me. It is not the form, size, construction, equipment, or means of propUlsion, that establishes the jurisdiction. Ben. Ad. § 218; l'he General Cass, supra. In Ex parte Easton, 5 Otto, 68, it was held that 8. district court has jurisdiction in admiralty to enforce in rem a claim for wharfage against a canal-boat or barge.