, ClOVERT i1.OURTII.
COVERT t1. CURTIS.
(Olreuit Oourt, No D. New York.
October S, 18811.)
PATENTS POR INVENTIONs-INFRTNGEMENT-ROPE-CLAMPS.
Patent No. 208,157, granted September 17, 1878, to James C. Covert for an Improvement in rope-clamps, held infringed by the sale by defendant of simuar clamps, and a preliminary injunction grauted.
Motion for Preliminary Injunction. William II. King, for complainant. Ooburn Thacher, for defendant. COXE, J. The complainant is the inventor of an improvement in rope-clamps, for which a patent, No. 208,157, was granted September 17, 1878. The specification contains two claims. The first is for the method of connecting one part of a rope adjacent to another part, or the ends of two ropes, by clamping with one or more open metallic rings, under extreme pressure. The second is for one or more open rings clamped around a braided or twisted rope, under pressure, to prevent unbraiding or untwisting. Since the date of the patent the complainant has, in the business of his firm, manufactured and sold large numbers of the patented clamps. Capital has been invested, expensive machinery purchased, skilled labor employed, and a high degree of proficiency attained in the character of the goods manufactured. The result is that a large and flourishing business has been established, which will be greatly injured by competition, and especially so if inferior and un workmanlike goods are permitted in the market. Though the patented device is largely used, the complainant is in a situation to supply all demands; his exclusive right to do so having been generally acquiesced in by the public. It is suggested in one of the affidavHs read by the defendant that there is no infringement, because the ends of the rings sold by him are not beveled and do not overlap. This contentionis clearly untenable. An examination of the claims discloses the fact that the beveled ends are no part of the invention. They are, in the description, recommended as being preferable to square ends, but ure not claimed. The prior patents, drawings, and exhibits referred to by the defendant have been examined, and it is thought that none of them antici. pates the complainant's invention, so far, at least, as the first claim is concerned. Neither can it be maintained upon this proof that the patent is invalid for lack of invention. It is manifest that a refusal of the relief asked for will work great, and perhaps irreparable, injury to the complainant's business. On the other hand, it is not easy to perceive how the defendant, who is a merchant and not a manufacturer, can be materially injured by required to discontinue his sales until the questions at issue can be finally determined. The. mO,tion is granted.
THE SPARTAN. 1
and another. 1
July 24, 1885.)
(District Court, S. D. New York.
DEMURRAGE-BLOCKADE OF PORT OF DES'l'INATION-CONSTBUC'l'ION OF CHART.I£R-PAR'J'Y-CUSTOMARY DISPATCH-CASE STA'l'ED.
The charter-party of the ship S. provided for a voyage" from New York to Arica, Peru, with the privilege of a second port in Peru not north of Callao; charterers to be allowed 'customary dispatch' for discharging the cargo after the captain reports the vessel in the berth ready to discharge the cargo. Should the port of Arica be blockaded, I1nd the vessel not be able to get into that port, the vessel is to proceed to the next nearest open port to discharge her cargo." On arrival at Arica on the fifth of i\pril, that port was found to be blockaded, and' the vessel was ordered by the agents of the charterer to Callao, which was then open, but was blockaded the day before the vessel arrived there. The agents thereupon directed the vessel to go to Ancon, 10 miles north of Callao. a place which had never before been made a port'of entry, and which had no facilities for discharging cargo, in consequence of whic.h great delays were When about half the cargo had heen discharged, A.nton was blockaded,and the vessel went toChancay, where there was further delay, and a little more discharge of cargo before that port also was closed. After further hindrances, the discharge was finally completed on the twenty-fifth of August at Arica, where the blockade had been raised. Libelants claimed that" customary dispatch," in general, on the coast of Peru was such that the S. should have been dis..:harged at Ancon by May 12th, whereas her discharge was not completed at Arica until nearly 125 days later, for which demurrage at the rate of £15 per day was demanded. fJeld, that the expression "customary dispatch," in unloading, is the dispatch customary at the place of discharge. At the extemporized ports of Ancon and Chancay there was no custom. As, in using the phrase" at the next nearest open port," the parties could not reasonably have had in view any such places as Ancon or Chancay, the" customary dispatch" of large ports. such as Arica or Callao, could not be exacted lU this case at new and extemporized ports, which were substituted by necessity, and not from choice, as places of delivery, to prevent the defeat of the voyage, and that the obligation of the consignees, as respects discharge in those places, would be that of reasonable diligence only.
SAME-WAIVER OF PROVISION IN CHARTER-REsuvr IN THIS CASE.
As the consignees designated Callao, 600 miles north, for the place of discharge after Arica, and the captain of the 8. acquiesced, lield, that the provisions of the chart.er as to the" next nearest port" had been "'aived. There was no provision In the charter for a 'substituted port in case the" second port" should also be blockaded. Held, therefore, that upon the blockade of Callao the situation became the same as if Callao had been the only port of discharge named in the charter, with no reference to the contingency of blockade. English and American decisions reviewed as to the effect of the hlockade of , the port of destination of a on the obligations of her charter-party.
SAME-BLOCKADE OF PORT OF DESTINATION-EFFECT ON CHAUTEU-ENGLISH AND AMEIUCAN AUTHORI'l'IES.
'SAME-UNDER FOREIGN LAW.
The obligations of the ship in such circumstances considered under the codes ofyariollS foreign nations. Under our law, a blockade that prevents both parties from performing their Conelll'rent obligations as to receipt and delivery of cargo dissolv(,s the spe. cific contract. If the master cannot then obtain the instructions of the ship.
5. SAllIE-EFFECT ON CHAHTER-DUTY OF MASTER-FREIGH'l'-DELAY OR AGE-CONTRACT TO RUN BLOCKADE.
1Reported by Edward G. Benedict, Esq., oftbe New York bar.