KIRBY fl. THAMES &: MERSEY INS. CO.
the effort, as the only change made was to adapt the old letter dies to the shape of a bretzel. Why men should have groped so long in the effort to make a bretzel-cutter 01' bretzel.ma.chine, with the ordi. nary cake cutters before them, it is difficult to understand, but the proof shows that they did so; but I cannot see that the mere fact that others were so long wandering by the wrong path is any evi· dence that it requires invention to accomplish what has been done by taking the direct path pursued by these patentees. All they had to do was to make the die, and adopt the old form of cutting dies used in bakeries for many years; and the result seems to have been accomplished. It seems to me, from the proof, that inasmuch as the bretzel is an article of time-honored history in the German coun· tries, connected to some extent with the older religious observances of those people, and intimately with their pL'esent social enjoyments, that in the first efforts at making them by machinery it was assumed that they must in every respect simulate those made by hand or they would not be acceptable to the public; that they must not only sim· ulate them in appearance, but the manipulation of the dough must be substantially the same as in those made by hand; but when the machine-made bretzels were introduced to the public, and accepted in place of the hand·made article, the problem was solved; and the merit of these patentees seems to me to have been in overcoming a fixed prejudice in favor of the hand-made goods rather than in inventing any radically new process for making the sall).e goods by rna· chinery. The finding will be that the patent is void for want of novelty, and the bill dismissed.
KIRBY v. THAMES & MERSEY INs. Co., Limited.
(Di8triet Oourt, E. D. Wi8consin. April, 1886.)
MARINE INSURA:ljCE-INSURER'S LIABILITY TO UNINSURED PART OWNER FOR NEGLIGENCE.
Where an insurer has insured the interest of a half owner of a vessel; and the vessel was stranded during a voyage; and such half owner requests the insurer to render her assistance; and the insurer sends an agent to the vessel with instructions "to render such assistance as is necessary;" and such half owner notifies the insurer that he abandons his interest in the vessel to the insurer; and such agent, with the aid of the master, crew, and such half owner, move the disabled vessel to a harbor; and afterwards, without further orders from the insurer, such agent. the master, and crew, with the aid of such part owner, attempt to navigate the vessel to her home port, which is also her port of destination; and during the voyage the vessel is lost: held. that the insurer is not liable to the owner of the uninsured half interest in the vessel for her loss, and is not, as to him, chargeable with negligence. Where a policy of insurance on the interest of a part owner of a vessel pro·
SAME-RIGHT OF PART OWNER TO ABANDON UNDER INSURANCE POLICY.
Reported by Russell H. Cllrtis, Esq., of the Chicago bar.
vides that the insured shall not have a right to abandon unless the amount. which the insurer would be liable to pay under an adjustment as of a partial loss, would exceed half the amount insured, nor unless the insurer would receive a perfect title to the subject abandoned, intimated, that a notice of abandonment by the insured to the insurer, before the facts which affect the right to abandonment are ascertained, does not constitute an abandonment under the policy. 8.
SAME-ABANDONMENT BY PART OWNER DOES NOT AFFECT CO-OWNERS-MAsTER'S DUTY.
Abandonment by one part owner of a stranded vessel of his interest in the vessel to the insurer of such interest does not affect the interest of other part owners, nor the master's control over the vessel, so far as their interest is concerned.
SAME-AGENCY-EXTENT OF WRECKING MASTER'S AUTHORITY FROM INSURER.
Authority by an insurer to a wrecking master to render "necessary assistance" to a; stranded vessel does not confer on such agent any authority to accept an abandonment of a part owner's interest, nor authority to navigate the disabled vessel to her home port after having once moved her into a harbor. Libelant must, to recover, clearly prove his case.
SAME-WEIGHT OF EVIDENCE ESSENTIAL TO RECOVERY.
Markham cf; Noyes, for libelant. Van Dyke cf; Van Dyke, for respondent.
DYER, J. The libelant, Kirby, and one Ebert, were owners of the schooner Arab, a vessel engaged in lake navigation, each owning an undivided one-half interest. Ebert was managing owner, and his interest was insured in the sum of $2,000, under a policy issued by the The libelant's interest was uninsured. About respondent the first November, 1883, the vessel was stranded near the harbor of St. Joseph, MiclJigan. The master, Capt. Charles Starke, immediately telegraphed to Fitzgerald & Co., the local agents of the insurance company, at Milwaukee, that the vessel was ashore, and requesting assistance. Fitzgerald & Co. at once telegraphed Crosby & Dimick, general agents of the company at Buffalo, saying that help could not be sent from Milwaukee, and that it could be better obtained in Chicago. Crosby & Dimick then forwarded a dispatch to the agents of the company in Chicago to send Martin Blackburn to the vessel, "to render such assistance as was necessary." Blackburn was immediately engaged, and proceeded to St. Joseph. He procured a tug and pumps. Part of the cargo was removed from the vessel, and placed on the pier, and within a few days she was got off, and was taken into the port of St. Joseph. Ebert and the master and crew of the vessel took part in the wrecking operations. On the sixth of November, and before the vessel was got off the beach, Ebert sent a telegram to the Buffalo agent, stating that he abandoned his interest in the vessel to the insurance company. This telegram was written by Blackburn for Ebert. On the same day Ebert sent a similar telegram to Fitzgerald & Co., the local agents at Milwaukee. The proofs show that the Buffalo agents never received the telegraphic notice of abandonment alleged to have been sent to them by Ebert; but Fitzgerald & Co., on the receipt by them of notice of abandon-
KIRBY". THAMES &: MERSEY INS. 00.
ment, forwarded it by mail to the Buffalo agents, who received it some time after the 6th. The schooner was taken into the harbor at St. Joseph, probably on the 9th. Sails were put under her to stop her leaks and keep her afloat, and some portion of that part of the cargo which had been previously taken off was placed again on board. Ebert and the master and crew took part more or less in this work·. Milwaukee was the home port of the vessel, and was the port of destination of both vessel and cargo when she was driven ashore. On the evening of the 10th the tug, with Capt. Blackburn on board, took the vessel in tow, accompanied by her master and crew and a sufficient force to keep the pumps in operation, and set out for Milwaukee. The voyage was prosecuted successfully until about 4 o'clock the following morning, when the vessel became suddenly water-logged, and was lost. This suit is now brought by the libelant, Kirby, to recover from the insurance company the value of his one-half interest in the vessel, on the ground that in these transactions Capt. Blackburn was the representative and agent of the company, exercising control over the vessel; that he was guilty of gross negligence in attempting to take her across the lake when she was in an unseaworthy condition, and that in consequence of such negligence she was lost. I cannot doubt that Capt. Blackbul'll, in his operations for the relief of the vessel, and down to the time when she was taken into the port of St. Joseph, was acting as the representative of the insurance company. This appears outside of testimony which was objected to, such as his own statements on the subject, which I rule incompetent. He went to the scene of the wreck at the instance of the general agents of the company who designated him specially for the employment, and he was accordingly employed by the local agents in Chicago to render such assistance to the vessel as was necessary. The insurance company was interested in the rescue of the vessel. because it had issued a policy covering Ebert's interest; and all parties seem to have co-operated in the service, for the purpose of protecting from loss the interests of the respective parties, including that of the libelant, Kirby. It seems to me, also, that after Crosby & Dimick received from Fitzgerald & Co. the notice of abandonment sent in the form of a telegram by Ebert, on November 6th, the insurance company might very properly, so far as Ebert's interest was concerned, assert the right to look after and protect that interest. Whether it was a technical abandonment, under an absolute right to abandon, is doubtful. '['he policy provided that the insured should not have a right to abandon, unless the amount which the insurer would be liable to pay under an adjustment as of a partial loss should exceed half the amount insured; nor was any abandonment to be valid unless it should be efficient to convey to, and vest in the insurance company an unincumbered and perfect title to the subject abandoned; and the
facts bearing upon these conditions in the policy, and which affected the right to abandon, were not then ascertained. I regard it extremely doubtful whether, under any authority Blackburn had from the insurance company, he could act for the company so as to make it liable for the consequences of his negligence, after the vessel was brought into the port of St. Joseph. He was a wrecking master. His instructions were simply to go to the assistance of the vessel; and when he got her off the beach, and safely into port, it would seem that his authority ceased, and that, without further authority, what he might thereafter do, especially if he proposed to take the vessel, in a disabled condition across the lake, would be done upon his own responsibility, so far as the company was concerned. In a case like this, where it is sought to charge one party with damages resulting from the negligence of another, it ought clearly to appear that the act out of which the alleged liability springs was within the scope of the latter's authorized employment. The company does not appear to have given Blackburn any authority to take possession of the vessel, or to do anything with her except to assist in relieving her from the immediate extremity she was in. He had no authority to accept an abandonment. He received no instructions from the company to take her out of St. Joseph harbor, or to take her to any other port for repairs. If the determination of the case turned upon this question, I should be strongly disposed to hold that after the wrecking service was completed, and the vessel brought into port, Blackburn's relation to the company, as its representative, ceased, and that in what was subsequently done he acted on his own l"esponsibility, and rather in the capacity of an independent salvor than as the agent of the company. Even if Blackburn were to be regarded as the company's agent, acting within the scope of his employment, down to the time the vessel was lost, it is not altogether clear that such negligence was imputable to him in attempting to take the vessel to her port of destination as would make the company liable for her loss. If he acted in good faith, but erred in his judgment as to the success of the undertaking, it might not follow that such error of judgment alone should involve his principal in a liability to damages, the same as if the loss had been occasioned by positive negligence. The law does not judge the facts in such a case with all the wisdom that comes after the event, but rather in the light of the circumstances and situation as they appea.red at the time to those charged with negligence. However this may all be, upon an attentive perusal of the testimony, and upon consideration of all the cIrcumstances of the case as I am enabled to judge of them in the light of the evidence, I am well convinced that the attempt to take the vessel to the port of Milwaukee was made, not alone upon the individual responsibility of Capt. Blackburn, but with the consent and acquiescence, and in accordance with the expecta-
KIRBY t1. 'rHAMEB &: MERSEY INS. CO.
tion, of both Ebert and the master of the vessel. Although both of these parties seek to place the entire responsibility of the attempted voyage across the lake upon Blackburn, it is quite evident that they co-operated in the preparations for that voyage, and the circumstances strongly point to the conclusion that they expected and desired the vessel to be taken to the port of Milwaukee, which, us before observed, was the port of destination of both vessel and cargo. To my mind, in view of all the circumstances, it is hardly credible that Blackburn, 'without any interest 80 to do, would, of bis own independent will, take the vessel across the lake. He had no instructions from the insurance company which authorized it. No fact is disclosed which would naturally prompt him to do it, in the absence of a desire and expectation on the part of the dlaster of the vessel that it should be done. The alleged abandonment did not transfer the managing ownership to the insurance company. If there was a valid abandonment, it was only of Ebert's interest. The other half interest owned by the libelant was nnaffected by the abandonment, and the Ilurrender by Ebert to the company of his interest did not determine the master's duty or authority, so far as the libelant's interest was concerned. He still owed allegiance to the vessel, as the representative of the libelant's interest in the existing emergency. His authority had not been countermanded or withdrawn by the libelant, who knew the vessel was in distress. The duty of the master, and his right to a voice in the control of the vessel in behalf of the libelant's interest, after she was got into port at St. Joseph, still remained; and, so far as anything is here disclosed, he could not be legally dispossessed of that right by Blackburn; nor could Ebert, by any directions to the master aftel: the alleged abandonment, legally authorize or instruct him to abdi. cate his functions as master in favor of Blackburn, so far as the libelant's interest was concerned. As I have said, the circumstances tend strongly to prove the concurrence of the master in the proposal to take the vessel to Milwaukee. It was for his interest and the interest of the party he represented, that this should be done. He says everything was done under the directions of Blackburn and that the vessel was not fit to cross the lake, and yet he made not the slightest objection to the voyage. He undoubtedly expected that the vessel would be taken to her home port; and, indeed, he says in his testimony that when they were sheathing her with the sail, and putting part of her deck load again on board, he knew she was going across the lake. His statement, in another connection, is: "I knew sbe was not going to stay there, because she could not be rebuilt there; or perhaps she could, but it cost a good deal When asked when he first learned t.he vessel was to be taken out of St. Joseph, he seems to repeatedly evade the question, and says he was at supper when he first learned "the particular place to which she was bound." Finally he says: v.27F.no.2-15
"I always had an idea she would be taken to Milwaukee," and thai he understood that when she was got off the beach she was to be taken there. He and the crew assisted in the work done preparatory to the voyage, and it is not reasonable to suppose, if he thought the vessel .. was not fit to cross the lake," that he, with his entire crew, would have gone aboard, without objection, to make the voyage. In his examination these questions are asked, and answers given: "Question. You didn't know anything about it, then, [referring to the pro. posed voyage across the lake] wilen you put the light lum'ber in her during that afternoon? Answer. Well, I knew that they would not rebuild her in St. Joseph; but I didn't know exactly where she was going, because I didn't ask. Q. '£hen, you knew all the time that she was not to be repaired at St. Joe; but was to be taken across the lake to be repaired? Was that it? A. Well, I thought she would have some repairs, but I knew she wa" not going to be rebuilt there." That the master deferred to Blackburn's judgment is highly probable, but that he surrendered his position as master, and also the uninsured interest of the libelant in the vessel, seems to me very improbable. On the contrary, various out-croppings in the testimony, and the circumstances of the affair, lead me to think that he concurred and assisted, not alone in the efforts made to release the vessel from her extremity, but in all the preparations to take her across the lake, without objection or dissent, and that he so acquiesced, in the belief and with the understanding, that he W8,S thereby promoting the interest of the libelant, whom he still represented. It also appears that Ebert was more or less active in the preparations which preceded the attempt to cross the lake. He placed the sail under the vessel,put the hoistings inside the canvas, remained with or near the vessel while the work was in progress, and saw her leave St. Joseph without dissent or objection. He claims that before rendering assistance he asked Blackburn if he should do so, which, under the circumstances, seems very improbable. He says that the day Blackburn came to the relief of the vessel he told him to take her to Milwaukee, and that he thought if they could get her right off "it would not hurt to take her." The cargo belonged to his father-in-law, was consigned to Milwaukee, and he made no objection to so much of it as was carried remaining on board. The testimony also shows that he expended money to pay wages of seamen earned, and bills incurred after the abandonment of his interest, and I cannot resist the conclusion that all the parties contributed their best endeavors-First, to get the vessel out of her extremity, and then, to take her, with part of her cargo, to Milwaukee, her port of destination. If an error of judgment was committed, it was a mutual error. If there was negligence, it was negligence in which all shared. Tht: master was the legal representative of the uninsured interest, participating in and consenting to the venture; and so I am of the opinion that the loss which resulted ought not to be visited upon the respondent, especially when the authority of Blackburn to employ the
vessel in navigation, even the purpose of taking her to her home port, is not clear. The testimony of Blackburn is in direct antagonism to that of Ebert and Capt. Starke, and although various particulars in which he is corroborated by the circumstances might be pointed out, I do not deem it necessary to extend discussion of the subject. At best, the right which the libelant asserts against the respondent is doubtful. A clear case of liability is not, in my opinion, established, and the libel must therefore be dismissed.
THE STAMFORD AND THE TWILIGHT.
(.DisfJrict OOU'l't, D. Ma8sachU8ett8
March 18, If.l86.)
COLLIsION-FaG-VIOLATION OF TWENTY-FIRST RULE-NEGLIGENCE m BEARING STEAM WHISTLE-INJURIES TO PASSENGERS.
The steamers B. and T. came into collision in the harbor of Boston in daylight, and during an unusually thick fog. Both vessels,.at the time of the collision and previously, were running at as slow a rate of speed as their engines would admit of. Prior to the disaster they had been approachini, )ach other from almost directly ahead. The B. heard the whistle of the T. when the latter was about one-half a point on her port bow. After a short interval it was heard a second time, and almost immediately afterwards a third. Each succeeding whistle seemed to be nearer, and the sound of paddle-wheels followed the third Whistle. On hearing the first whistle the S. did nothing; on the second her helm was put a-port; and at the third hard a-port. Held, that thetwenty-first rule required that the B. should not only slacken her speed, but also, under the circumstances, stop and reverse. Held, that the T. was also in fault in not hearing the whistle of the B., and also in proceeding ahead under the circumstances.
Held, also, that a passeqger on board of the S., who, while exercising due care, had been injured by the collision, was entitled to a decree against both vessels.
SAME-RIGHT OF INJURED PASSENGER TO DECREE.
The first two of these cases were cross-libels for a collision between the steamers Stamford and Twilight. The third was a libel hy Catherine E. Frederickson, a passenger on the 'l'wilight, against the Stamford and Twilight jointly, for personal injuries received in the same collision. It was admitted at the hearing, on the part of both vessels, that the libelant in the third suit was in the exercise of due care, and was entitled to a decree in her favor for her full damages if the court should be of opinion that the accident was caused by the fault of the vessels.
by Theodore M. Etting, Esq., of the Philadelphia bar.
Frederick Dodge and Edward S. Dodge, for the Stamford.
L. S. Dabney and E. N. Hill, for the Twilight. W. A. Munroe, for Catherine E. Frederickson.
NELSON, J. This collision between the steamers Stamford and Twilight occurred in Boston harbor, in an unusually thick fog, at half past 5 o'clock of the afternoon of August 19, 1884. The fog had prevailed during the whole day over all the harbor below Governor's island, and for some distance into the bay, making the navigation extremely difficult and dangerous. The Stamford was a passenger boat running regular daily trips between Boston and Plymouth. She left her wharf in Boston at 10 A. M., with some 300 passengers on board, and arrived off Plymouth harbor; but, finding it unsafe to attempt to enter on account of the fog, she turned about, and at the time of the accident was on her way back to Boston. She was running np the channel at half speed, sounding her whistle at frequent intervals, and had arrived nearly opposite No.6 buoy, on the Lower Middle shoal, when her master heard a whistle which seemed to come from about half a point on her port bow. After a short interval he heard the whistle repeated from the same direction, nearer, and immediately after that a third whistle, and the sound of paddle-wheels in the water, still nearer. At the first whistle he did nothing. At the second, he ordered the wheel to be put to port, and on hearing the third whistle, and sound of paddle-wheels, he ordered it to be put hard a-port, the whole effect of the two orders being to change the course of the boat to starboard two points. When the approaching vessel, which proved to be the Twilight, came in sight through the fog, it was apparent that a collision could not be avoided, and, with a view to ease the blow by lessening the angle of contact, he ordered the wheel to be put hard to starboard. The Twilight was also a passenger boat, plying regularly several times a day between Boston and Nantasket. She left her wharf in Boston at 5 P. M., in clear weather, with a large number of passengers on board, and proceeded down the harbor for Nantasket at full speed. At the Upper Middle shoal she struck the fog, and was then slowed down to one bell. At buoy No.9 she was run into by the steamer John Brooks, and by this collision a deep gash was cut in her guard on tbe port side, at the forward gangway. After extricating herself from the John Brooks, she again started up at full speed. After this her engines were stopped twice; the first time to haul in a hawser which had dropped overboard in her encounter with the John Brooks, and the second time because her master began to have doubts whether it would be safe to continue on in the fog. He concluded, finally, however, to go OD, and the engines were again started. Before she had attained full half speed the Stamford was seen and reported on the port bow. The Twilight's engines were stopped and her wheel put hard to port as quickly as possible, but the col-
liaion was then inevitable. The fog whistle of the Twilight was sounded regularly from the time she entered the fog. Her master and pilot were in the pilot-house, and the mate was forward on the look out; but none of them heard the Stamford's whistle, or any other sound of her approach before she came in sight. The Twilight struck the 8tamford a little aft of her forward gangway, carrying away the whole port side of the latter outside of her hull, including the paddle-box and paddle-wheel. The Twilight also sustained considerable injury, but less than the Stamford. A large part of the testimony on each side was directed to prove that immediately before the collision the opposing boat was running at full speed: But I am satisfied this was not the case as to boat. Each boat was running with the steam close shut off, and was going at as slow a rate as her engine would admit of withont coming to a full stop. This appears from the testimony of the engineers and other officers on the respective boats, and is confirmed by other witnesses on each side, as well as by all the surrounding circumstances. To run at full speed in such a fog, in a narrow and crowded channel, with the boats loaded with passengers, would be navigation of the most reckless kind. I do not believe the management of either of these boats was of this character. It is true, the tide was with the Stamford; but with her slow progress through the water, she could have made no allowance for that without stopping or drifting, which she was not bound to do. Nor should fault be attributed to her for starboarding. It had the effect to throw round her stern, and bring her course more nearly parallel with that of the Twilight, and thus to lessen the direct force of the blow, and it was done wiflh the honest purpose of escaping greater disaster. But upon other grounds I am of opinion that both vessels should be held responsible for the collision. By the twenty-first rule, then in force, a steam vessel, when approaching another vessel so as to involve risk of collision, was required to slacken· her speed, and, if necessary, stop and reverse. The Stamford was in such a situation, in respect to the Twilight, that this rule was applicable to her. Perhaps she was not bound to stop at the first whistle; but at the second it was plainly her duty to stop and revel'se. The successive whistles clearly indicated that a steamer was nearing her rapidly from almost directly ahead, and that the risk of collision was' imminent. Her master had only his sense of hearing to inform him of the dangers in his path. Instead of heeding the warning and stopping his boat, which, as a prudent officer, he should have done, he contented himself with merely porting. This was a plain violation of the rule, and was one cause of the disaster. The officers of the Twilight were at fault for not hearing the Stamford's whistle. It was heard by at least three of the passengers. The sea was smooth, and what little wind there was, was blowing from the direction of the Stamford. An attempt was made on the
part of the Twilight to prove that the Stamford's whistle was of insufficient power. But I think this failed. Their failure to hear it was undoubtedly owing to the disorder and confusion on board, caused by the collision with the John Brooks, and the efforts to recover the hawser. The Twilight had no right to proceed until order was restored, and the officers had regained their coolness and self-possession. For this reason I hold her also at fault. In the first two cases interlocutory decrees are to be entered for the libelants, the damages to be divided. In the third case an interlocntory decree is to be entered for the libelant against both vessels. Ordered accordingly.
nia/rict Oourt, 8. D. New York. April 5,1886.)
COLLISION-OPEN DRAW-VESSEL ApPROACHING AT ANGLE-FAUI,T.
When a tug, with a float, attempted to pass througoh a draw-bridge on the Harlem river, but did not approach the draw in line with the opening, and the pilot-house of the tug struck the end of the draw. held, that the tug was in fault.
SAME-ENGINEER OF DRAW-DUTy-CONTRIBUTORY NEGLIGENCE.
The engineer of the draw perceived that the tow was approaching upon an angle, but made no effort to favor its passage by revolving the draw beyond the middle line, as was the custom to do when necessary. Held, that failure to perform this simple and customary duty was contributory negligence on the part of the engineer.
SAME-CITY CORPORATION-DEPARTMENT OF PARKS-STATE CoURT ADJUDICATION.
The state courts having held tbat tbe corporation is liable for any negligence in the management of streets or bridges under the department of parks, such adjudication should be followed by this court.
SAME-DRAW-BRIDGE-DUTY OF CUSTODIANS-NEGLIGENCE OF SERVANT-LIA· BILITY.
The duty to take proper care of a brIdge includes the duty to make proper provision for the passage of vessels through the draw. The custodIans of the bridge are bound to the use of ordinary diligence to avoid accidents to vessels going through the draw in a customary manner, as one of the incidents of the management of the bridge. They are therefore responsible for the want of ordinary care on the part of their servants.
In Admiralty·. Alexander et Ash, for libelant. E. H. Lacombe and F. W. Hinrichs, for respondents. BROWN, J. At about 8: 30 A. M. on the twenty-fourth of February, 1884, as the steam-tug James A. Langton, having float No.4 lashed side, was going up the Harlem river with the floodon her tide, in attempting to pass through the eastern passage of the open the draw of the Third-avenue bridge the pilot-house of the
Heported by Edward G. Benedict, Esq., of the New York bar.