HALKYARD and others.'
August 16, 1886.)
(Circuit Court, D. Rhode I8land.
PATENTS FOR INVENTIONS-AcTIONS-QUESTIONS FOR JURY.
Where a bill was filed for infringement of two patents, and, upon the nn'll hearing, the following questions were presented: First, whether the plaintiff S. or the defendant H. was the first inventor of the device claimed in one of the patents; and, 8econd, had the invention been in public Ilse more than two years before application for said patent? that the first question presented a simple issue of fact, proper for the determination of a jury, and that the second question, which depended upon conflicting testimony, could be more satisfactorily determined by hearing of the witnesses in person.
In Equity. Before GBAY and COLT, JJ.
by Charles'C. Linlhicum, Esq., of the Chicago bar.
NODDLEHURN. (CURTIS, Libelant.)
Oourt, D. Oregon. October
COlffiTS-UNITED STATES DISTRICT COURT-JURISDICTION OF TORTS ON THE HIGH SEAS.
The district courts have jurisdiction of torts committed on the high seas, without reference to the nationality of the vessel or the parties theroto. Bern· hard v. Greene, 3 Sawy. 230, affirmed.
SEAMEN-INJURY-SEAWORTHINESS OF VESSEL.
When the master of a British vessel knowingly allows a rope to remain in an insecure condition, and a seaman, in the proper discharge of his dutv, falls to the deck therefrom, and is hurt in consequence of such neglect, the seaman may maintain a suit against such vessel in this court for damages.
SAME-CRANE-LINE-PURPOSE .AND USE OF.
The primary purpose of a crane-line is to steady the back·stay, and, in blus· teringweather, it is apt to chafe where it is joined to the stay or shroud; but it may also be and is used as a foot-rope for light work, the party doing so taking the precaution to keep one hand on, or arm or leg around. the stay or shroud, as a support in case of accident.
When a British seaman is unable to complete the voyage from this port to the port of discharge in the United Kingdom, by reason of injuries sustained while in the service of the vessel, and is sent by the master to the hospital, he may maintain a suit in this court to recover the wages earned and unpaid at the time of going to the hospital. Estimation and allowance of for injury to the ankle by falling from the crane-line on the foremast shroud and back-stay. . .
In Admiralty. Suit for damages and wages. Edward N. Deady and Horace B. Nicholas, for libelant. O. E. S. Wood, for defendant. DEADY, J. This suit is brought by the libelant, DanielCGrtis, against the British bark Noddle.burn and her master, Joseph Hogg, to recover $5,000 damages for an injury to his ankle, received while serving on the vessel as a seaman, and for a balance of $70 due him as wages on account of such service. . From the pleadings and evidence I find the following facts:
On March 24, 1886, the libelant duly shipped on the Noddleburn:; at Liverpool, for a voyage to this port, and thence to a port of discharge in the United Kingdom, as an able-bOdied seaman, at and for the monthly wages of 2 pounds ami 15 shillings. On April 23, about 4 P.lII., in latitude about 15 No, in the Atlantic ocean, IlS the vessel was being put about, the libelant was Qrdered by the mate to go aloft and pass the maintop gallant stay-sail sheet ()ver the middle stay, from the port to the starboard side. When the libelant reached the foretop he took hold of the bight of .the sheet, and attempted to haul it; but, finding that it would not come, he concluded that the hooks on the end of the sheet were foul of the jib-halyards, and went out on' the rope somt'times callt'd the crane-line, between the foremast back-stay and the after foremast shroud, and, holding to the shroud with one hand and takirig the sheet in the other, attempted to shake it loose, when the seiZing fastening the line gave way, and the libelant fell to the deck, a distance of 30 or 40 feet,
the weight of his body loosening his hold on the shroud, and strllck 'm a spare anchor lying on the deck between the waist and the foremast. spraining his right ankle, and fracturing obliquely the external malleolUS. OJ' lower end of thejibnla or outer bone of the leg. The master, with the aid of some of the crew, pulled the ankle into place, but did not discover the fracture of the bone then or afterwards. He also bandaged the leg, and put it into splints, and then sent the man to his bunk, but did not visit him nntil the next day. In the meanwhile the leg swelled so that it became very painful. and the libelant removed the bandages. The master had the banllages put on again without the splints, and the man remained in his room for several weeks, '}'ith his leg more or less bandaged, and once again in splints a short time; the master visiting him not more than twice in that time, besides hav. ing him go aft occasionally, at much pain and inconvenience to the libelant. In the course of six or seven weeks the master had a pair of crutches made for the libelant, and, with his assent, set him to work cleaning the lamps and brass·work during the day. On August "the 12th the vessel arrived in Astoria, where, after a delay of a couple of days, the master called a doctor on board to examine the libelant's leg, but he did nothing for it; saying that it would have to be reset, while the master insisted it was nothing but a sprain, and would get well in time of itself. On August the 19th the vessel arrived at Portland. By the direction of the master the libelant did duty as night watchman from the arrival of the vessel in the Columbia river until August 25th, when he was, at his own urgent request, sent to the Good Samaritan hospital, where he still remains. On his arrival there, according to the testimony of Dr. Saylor, the physician in charge, his foot and leg, from the toe to the knee, were very much swollen; so much so that the condition of the ankle and the extent of the injury could not then be determined. Absolute rest was then prescribed, and a plaster cast put on the ankle for some five or six weeks, when it was ascertained that the external malleolus was fractured, and had united so as to leave the end of the bone projecting outwards instead of down wards; thus leaving the ankle, or tarsus, without any outer support, so that when the libel. ant steps on anything but a fiat surface his foot is likely to turn under him, for which reason he will never be able to follow the sea again. The master, acting probably under the impression that the injury to the libelant was only a sprain of the ankle, did not pay much attention to him, or manifest any particular concern for his comfort or recovery. After sending him to the hospital he did not visit him, or pay him any attention, until he heard this suit was about to be commenced,-September 17th,-and then only on that account. Shortly before the accident to the libelant one of the crew informed the mate that the seizing on this crane-line was chafed and insufficient, when the latter sent another man up, with proper material, to put the liue in good condition. As the man was going up the rigging to make the repair the master saw him, and asked the mate what he was doing there. The mate informed him, when the master ordered him to recall the man, and set him to work on the deck with sand and canvas, at the same time accusing him, in obscene and filthy terms, with trying to curry favor with the men by giving them "soft jobs." The man was recalled, and the line not repaired, and hence the injury to the libelant. The master denies this statement in a vague and argumentative way, but the testimony of the mate and the two men concerned in the transaction is clear and convincing.
The defense made on the argument rests mainly on points of law:
(1) The court has no jurisdiction in the premises; (2) by the British
law there is no implied warranty of seaworthinesB of the vessel, or her
equipment, in the contract botween the seaman and her owner; and (3) the crane.line was not a foot·line, and therefore the libelant was guilty of negligence in going on the same as he did, and thereby con· tributed to the injury he sustained. The question of jurisdiction was not pressed by counsel, but merely stated and submitted. In Bernhard v. Greene, 8 Sawy. 230, this court, after a careful examination of the subject, held, in the language of the syllabus, that (1) "the district courts of the United States, as courts of admiralty, have jurisdiction of torts committed on the high seas, without refer· ence to the nationality of the vessel on which they are committed, Of that of the parties to them;" but that (2) "such jurisdiction will, in the discretion of the court, he declined in suits between foreigners, where it appears that justice would he as well done by remitting the parties to their home forum;" and (3) "where the suit is between for. eigners, who are subjects of different governments, and therefore have no common home forum, the jurisdiction will not be declined." The opinion in this case was delivered and published over 12 years ago, and, while it has attracted attention, it has not, that I am aware of, been the subject of adverse criticism.. In The Belgenland, 114 U. S. 855, S. C. 5 Sup. Ct. Rep. 860, Mr. Justice BRADLEY, in delivering the opinion of the court, did me the honor to cite it with express approbation on the question of jurisdic. tion, where the res or parties have no common forum. Until the case is directly overruled, it will be regarded as authority in this court. The only decision in the English courts on the second point is the case of Gouch v. Steel, 3 El. & Bl. 402, (24 Eng. Law & Eq. 77.) This was an action at law in the queen's bench by a seaman to recovef damages for injuries sustained in consequence of the vessel leaving port in an unseaworthy condition. There was no allegation that the owners knew the vessel was unseaworthy. On demurrer, the court held that the plaintiff could not recover, as there was no im· plied warranty on the part of the owner that the vessel was seaworthy. Mr. Parsons (2 Ship. & Adm. 78) says: "This decision is clearly reo pugnant to the principles of the American authorities on this subject, independent of statute provisions;" citing The Gyrus, 2 Pet. Adm. 407,411; The Polly, Id.420. The case was decided in 1854, appar· ently without deliberation. The question was rather a moot one than otherwise in the case, as the right to recover on the second count was sustained, on the ground that the vessel went to sea, contrary to statute, without a medicine chest. This ruling, in my judgment, is a harsh and unjust one. It was made, not in a court of admiralty, but of law, and proceeds on considerations more applicable to em· ployment on land than at sea, if to either. The Ghandos, 6 Sawy. 549; S. C.4 Fed. Rep. 1)45. In his opinion, Lord Chief Justice CAMPBELL rests his conclusion on the case of Priestley v. Fowler, 3 Mees. & W. 1, in which the rule was first established that an em·
ployer is never responsible for an injury sustained by his servanir or employe, in consequence of the negligence of nfellow-servant, so. long as the employer exercised due diligence in the employment and retention of the latter. But this partial rule has been so modified in the national courts, and those of many of the states, that "where a servant is authorized and required by his employment to furnish or provide suitable material or appliances for the work in which his fellow-servants are engaged, whether under his special direction or otherwise, and one of them is injured by reason of his neglect or omission in either of these respects, the common master or employer is responsible in either case." Gilmore v. Northern Pac. By. Co., 9 Sawy. 563; S. C. 18 Fed. Rep. 869; Hough v. Railway Co., 100 U. S.213; Chicago, M. li St. P. By. Co. v. Ross, 112 U. S. 377; S. C. 5 Sup. Ct. Rep. 184; Northern Pac. Ry. Co. v. Herbert, 116 U. S. 647; S. C. 6 Sup. Ct. Rep. 590. And it is very doubtful if the decision in Couch v. Steel would now be followed in England; especially in the face of the British shipping act. passed in the same year, giving to a fourth of the crew of a vessel a right to have a survey. and making unseaworthiness a suffipient excuse for desertion, or a refusal to join the ship after signing the articles. 1 Kay, S. & S. 575. But admitting, for the occasion, that this court ought to folhw the ruling in Couch v. Steel, in a suit by a British seaman against a , British vess,el, it is not in point.- The circumstances are different. In that case it did not appear toat the owner had knowledge of the unseaworthiness of the vessel; but in this one there was actual knowledge on the part of both the master and the mate of the unsound and unseaworthy condition of the vessel in the particular of this rope, coupled not only with willful negligeuce, but wanton indifference, on the part of the former. It is admitted that the lnaster stands for and represents the owner while in charge of the vessel, and, in my judgment, the mate, when not in the immediate presence of the former, does also. The Ohand08, 6 Sawy. 548; S. 0. 4 Fed. Rep. 645. The point of contributory negligence is the one most insisted on by the defense. Considerable testimony was taken on the question of what is the purpose of the crane-line, and whether it may properly be used as a foot-rope. The crew of the vessel, and others who had been to sea as seamen and mate, testified that it was used. when convenient, as a foot-rope. Several masters of British vessels in this port swore that it ought not to be used as a foot-rope. The master, while stating that it is not primarily a foot-rope, iu effect admitted that it might be and was so used, with care, by holding on to the stay or shroud with one hand, or, as he aptly put it, the man keeping "one hand for himself and the other for bis owner." The evidence and argument of the defense concerning the libelant's use of the crane-line assumed that he stood thereon with both feet. and pulled at the sheet with both hands, thus putting both his weight