OpenJurist

rHE CAPTAIN MILLER.

585

perforated strips, yet as a practical question in the musical profession, or in the sale of printed music, it may be said that they are not recognized as sheet music. The question is not what may be done as an experiment, but whether, in any fair or proper sense, these perforated rolls of paper, ma.de expressly for use in a musical instrument, can be said to be copies of sheet music. The complainants further suggest that the Sol Fa copy, or the raised copy for the blind, do not take the place of printed is music, in reply to which it may be said that their purpose and to supply the place of printed music, and that they subserve the same purpose. I find no decided cases which, directly or by analogy, support the position of the plaintiffs, and it seems to me that both upon reason and authority they have failed to show any infringement of their copyright, and that, therefore, the bill should be dismissed.

THE CAPTAIN MILLER. THE MANATEE. GARNER et al. v. THE CAPTAIN MILIJllB. McINTIRE v. THE MANATEE.
(Oircuit Oourt, N. D. Florida; January 9,1888.)
COLLISION-FAILURE TO COMPI,Y WITH SIGNALS-MUTUAL

Two steam-boats were going in the same direction, one in advance of the ,other. The rear boat signaled II desire to pass the other to the starboard; the other boat signaled a desire, to continuehE!r course; but neither fully complied with the meaning of its signal, and, as a consequence, a collision resulted. Held, each contributed to the result, and were equally liable for the damages contended for. ' .

FAULT.

In Admiralty. The plaintiffs, Charles E. Garner and E. N. Holt, filed a libel against the steam-boat Captain Miller, at the Jacksonville December term, 1887, claiming damages for a collision with the steam-boat Manatee. W. H. McIntire, master of the Captain Miller, for himself and owners, filed, at the same term, an answer and a cross-libel against the Manatee,for damages for the same collision. A. B. Meek, for libelants. Fleming & Daniel, for respondents. PARDEE, J. On the twenty-fourth of April, 1886;, the steam-boats Capt. Miller and Manatee were navigating the St.John's river, from Green Cove Springs to Jacksonville, when a collision occurred between them, in which the former was slightly and the latter considerably damaged. .The owners of the Manatee filed a libel against the Capt. Miller,

586

FEDERAp REPORTER.

alJegingtl?-st .the.Manatee was without fault, and the Capt. Miller wholly to blame.; of. the. Capt·. :Miller, for and owners, renlies with an answer and in which the faultfor the collision is thrown upon the A great many witnesses, consisting of the cr(j)VS of both boats"passengers, and spectators on have been examined,anp, of course, t4ere is a direct conflict of evidence on .' nearly every ma,terial point. , It seems that both boats, on the. morning of April 24, 1886, were lying'at the wharf at Green Cove Springs, due to leave for. Jacksonville and WilY landings at 6:30.o'clock. The Miller lay at the end of'the wharf, head dQwn, stream, and the Manatee on the north or down-river side of ;t4e wh!l.rf with.\;1ead out, both with steam up, ready to start without delay, and withoqt turning or backing. The first the Miller was to be Magnolia, on the left bank of the river, and the first landing of the Manatee was Remington Park, on the right bank,-both places several miles below Green Cove Springs; but the course of each boat was the same for the first half mile, and until a certain beacon on the west side of the channel should be rounded or passed. There was understood to be a rivalry between the two bOlita, as to speed as well as in trade, and this trip was to be the last one t;>f the Miller for the season; and as they both were expected to start at the same time, many people on and off the boats were, 01).' the looltout fora .boat-race. The master of the Millersays that to avoid a race he started his boat 10 minutes before the as he was starting, time fixed for leaving Green Cove the master of the Manatee,who was not on board his boat, but was coming down the wharf, quickened his'pace, boarded his Bdat, and started her as soon as the stern of the Miller had cleared the wharf. It is unthattqe Manatee started 'after the Millerasiwon as the latter had cleared the·wharf. The courseofthe Miller was Jlearly straiKht for the beacon. The course of the ,Manatee Wlt$ to run a length or two ahead l!P-d then.. fltraighten.up to port infthe d,jrection of the beacon. When the Manatee was one or two lengths from the wharf,and before she could have been well straightened up to her course, she sounded one whistle, as a signal she desired to pass the Miller to starboard. Thissigrial was answ.ered bytbe Miller with one whistle. Ori the passing of this signal there is no evidenoethat either boat altered its helm. From this signal on until near the beacon, aside from the facts that whistles were blown by each boat, and that theManatee closely chased the Miller, and that there was a collision between the bow of the Manatee and the.starboard quarter, near the stern, of the Miller, the evidence is too,conflicting for the court to say with certainty what was the exact conduct of either boat·. The weight of the evidence so far: as the number of witnesses, interested and disinterested, is concerned, is that as the Manatee came up on MilleJ"s quarter, the .latter to starboard, .blowing to time, to which the with one, the Miller changed her course so far to starboard as to put h.el'$I;'lfdirectly across the bows of tbeManateEj and' render a ,collision inentable·.. of the of her learned proctor,

Tl:IE·.CAl?TAIN MIJ,LER.

587

that the master of the Manatee, failing to pass starboard, thought to carry out the rumored.threat to sail aro\lnd the Miller, by changing his C()I).rse to port, passing under the Miller's'stern, and then. pass her on her port side, and, in so attempting, erred. in calculation and failed to clear the Miller, and thl1S .caused the collision, is very plausible, and is strongly supported by evidence and circumstances, and is in a line with the undisputed conduct of the Manatee from the start. The whole case, however these details may be, leaves a decided impression on the mind that for the collision both boats were to blame. The Manatee evidently started from the wharf to rltce with, and, if possible, beat the Miller. With this design, the master signalled to pass before his boat was under full' heudway, or had her course. He only partly complied with 'the navigation rule under which he was pretending to act; for he did not, when he gave the one short blast of the steam-whistle, to signify bis desire and intention to pass the Miller by the starboard, put his helm to port, as .the rule requires. It is clear he did not put his helm to port at that time, for he does not so testify; and the apparent fact is that at the time he had and kept his helm to starboard, so as to· lose no time in rounding to bis oourlle and in following the wake of the Millel". If be as the rule. r,e.quires, put his helm to port, there would have been no collision, as he would not then have followed directly the wake of the Miller so as to hang on and lap her quarter so close as from 50 to 100 feet. .Theweight of the evidence is to the effect that,after the one-whistle given by the Manatee and answered by the Miller, very soon the Miller gave two blasts of her whistle, which was answered by the Manatee ,with one whistle, lind then again, before the collision, the two whistles were sounded bv the Miller, and the Manatee. answered with one. that these signals .were given by him to The master of the indicate that he would cOlltinue his course, while the master of the Manateesay,s that after the Miller had answered the first signal given by the Manatee" he knew of nQ rule to justify the Miller.in blowing two whistles afterwards." Article 19 of the act of congress approved March 3, 1885, entitled "An act to adopt the revised international regulations for prevent. ing collision,at sea," (23 St. at Large, 438,) says that: "Intaking any course authorized or required by these regUlations. aaleamship under way may indicate that course to any other ship which she has in sight by the follOWing signals on her steam-whistle, namely. one short blast to mean, 'I am directing my course to starboard;' two short blasts to mean, 'I am directing my course to port;' three short blasts to mean, 'I am going full speed astern.' The use of these signals is optional; but if they are used. the course of the ship must be in accordance with the signal made." In the light of this statute, when the Miller answered the one whistle of the Manatee, and afterwards gave the signal of two short blasts, it indicated to the Manatee that the Miller was directing her course to port; and when the Manatee answered with one whistle it indicated to the Miller that the Manatee was directing her course to starboard. But in fact, under the evidence, the Miller was not directing her course to port. but was crowding to starboard, and the Manatee was not directing her

588

FEDERAL REPORTER.

course to starb'oard but was hugging up to the Miller and attempting to pass her. A proper understandingl)f these statutory signals, and a compliance with them, would have kept the Miller and Manatee on diverging courses, and a collision would have been impossible. And, if neither the master of the Miller nor the mas1ler of the Manatee knew of the statute, (as is extremely probable,) but did know of the navigation rules as to the meaning of these signals under such rules, and had complied with them, then, when the Miller gave the two whistles, she would have held her course, and when the Manatee gave the one whistle she would have put her helm to port, and a collision would not have resulted. See navigation rule 8. The substance of the whole matter is that the Miller contributed to the collision by 110t holding her course, and the Manatee contributed to the collision by unnecessary and improper chasing the Miller, running too close to her, and in not complying with the lettei' and spirit of the rlavigationrulcsj or, in the expressive language of Capt. Meyers, a disinterested witness: "Both boats were jockeying." The damages and costs should be divided. The damages. to the Manatee, as reported by the commissioner, are not disputed. '1'he damages to the Miller were"trifling, and are not contended for on appeal. The accompanying decree will be entered in the case. . This cause came on to be heard on the transcript of appeal, and was argued, whereupon the court, being satisfied that in the collision on April 24,1886, between the steam-boats Miller and Manatee, on St. Johns river, Florida, both boats were to blame, and that the damages and costs ought to be divided, it is ordered, adjudged, and decreed, for the reasons on file, that libelants Charles E. Garner and Edmund N. Holt do have and recover from W. H. McIntire, master, etc., claimant, and John C. L'Engle, surety on the release-bond, the sum of $507, being one-half the damage suffered by the steam-boat Manatee in the collision aforesaid. And it is further ordered, adjudged, and decreed that the costs of the district court and this court, including the costs of transcript and master's fees, be taxed by the clerk, approved by the district court, and that said costs be paid, one-half by the libelants and their sureties, and the other half by the cross-libelants and their sureties. Execution may issue on this decree five days after costs are taxed.

':rHE OARL FREDERICK. THE DELAWARE.! CUFF
11.

689

THE DELAWARE.

(Oircuit Court, E. D. New York. December 13, 1887.)
APPEAL-FINAL DECREE-DISMISSAL FOR WANT OF EVIDENOE.

A decree of the district cOll,rt dismissinu: a libel for want of evidence is not a final decree, within the meaning of the statute allowing appeals from the district court,in admiralty, and an appeal therefrom will not lie.

In Admiralty.

On motion to dismiss appeal.

Goodrich, Deady &: Goodrich, for libelant. Carpenter &: Mosher, for claimant.
LACOMBE, J. This is a motion to dismiss an appeal from a decree of district court, on the ground that such decree is not final, within the meaning of the statute appeals from the district. court, in admiralty·. When the case was regqlarly reached for trial in the district court, appellant's counsel moved lor a postponement, which was refused; and, upon his further statement that his witnesses were all away, and that he had no evidence to. offer. counsel for claimant moved to dismiss the libel, as no evidence had been submitted. The motion was granted, and decree of dismissal entered. The case is clearly covered by the prior decisions of The Merchant, 4 Blatchf. 105; and Farrell v. Campbell, 7 Blatchf. 158. The motion is granted.

THE CARL FREDERICK. THE ENOCH TALBO':r. SUNSET TELEPHONE & TEL. Co. v. THE CARL FREDERICK and THE ENOCH TALBOT.
(DiBtrict Court, No D. California. December 5, 1887,)
1.

COLLISION-WITH SUBMARINE CABLE-DRAGGING ANCHOR.

Where aship has been lying at anchor in one spot for 18 days, and suddenly, in the night, begins dragging, and it afterwards appears that a kedge which had been lost had so fouled her anchor as to wrap round the chain, and cause the anchor to lose its hold, the accident must be ascribed to the peril of the sea. When a ship her anchor by a peril of the sea, and it does not appear that the dropping of a second anchor would have been of any avail, and there is no evidence to show want of reasonable skill and diligence on the part of the captain, the vessel is not liable. .

2.

SAME.

, IReported by Edward G. Benedict, Esq., of the New York bar.