THE JOHN H. PEARSON.
over a vertical groove, in which the guide-rod is placed. The lower end of the rod is connected, through the slot, with an operating knob in front of the plate, and its upper end is also connected, through its slot, with the jointed arm by which the transom is moved. It The claim of the patent was as follows: "The plate, C, slotted at both ends, and attached to the door-jamb, in combination with the guide or operating rod, E, connected to the lifting-anIl of the transom, and carrying the lug, h, at one end, and the adjustable knob, G, at the other end, sUbstantially as described, for the purpose specified." The file wrapper and contents of the patent were not before Judge BLODGETT, who considered that, while the plate was a slotted ami, it was not imperative that it should be actually slotted at both ends. 1.'he "file wrapper and contents" of the patent are in this case, and it appears that the claims in the application, which simply described the plate as slotted, were voluntarily erased, and the present claim oia plate slotted at both ends was inserted by amendment. The slotted plate is the important thing in theplltent, which is a very slight improvement upon reissue No. 9,307, and, I think, should be strictly confined to the particulars to which the patentee limited his invention, as appears from the amendments to his application. The qefendant's lifter is not slotted at both ends, and is, therefore, not an infringement. Let there be an injunction against au infringement of No. 191,088. The other motions are denied.
THE JOHN FILIBERTO
et al. v.
(Oircuit Oourt, D. Massachusetts. January 18,1888.)
The term" northern passage, " as used in the Mediterranean fruit trade, and in a charter'party to ship fruit from Sicily to Boston, hela to have a distlDct meaning, and that its course is from Gibraltar north of the Azores, if ,p.0ssible; if not, just south of the islands; thence to the southerD. point. or tall of the Great Banks; and then direct to port. In an action for damages, for loss of a cargo, where the charter-party provided that the vesselshoqld t!\ke the "northern held that, in the absence of any known passage to which that descriptIOn had been given, the ship was bound to keep tpe coolest passage those in the trade were accustomed to keep.
In Admiralty. The bark John H .. Pearson was charttlred to carry a cargo consisting mostly of oranges for the libelants, Filiberto and others, from Palermo, Sicily, to Boston, Massachusetts. The charter-party contained the words, "eaptain engages himself to take the northern passage," inse$d at the
" )'EDERAL 'REPORTER.
instan<le of libelants, for the benefit of the cargo. and written into the printed blank:,'The cargo was badly' damaged on" the voyage, and this action brought to recover for the loss; The case was once tried in this court, and an appeal taken to the supreme court, (7 Sup. Ct. Rep. 1008,) and, under the decision there, ctimes back to the circuit court for further proceedings in conformity therewith. , H. W. Putnam. for libelant. John a.Dodge &: Sons, for claimant.
7 Sup:et.Rep. 1008,) this case comes back to the circuit court for further proceedings, in conformity, with the opinion. The court,. in its opinion, says: "Wllllt,' tbe nOrthern passage,' as, used in this contract, means, therefore, is eithera question o.f fact, or a questipnof construction applicable to understood facts. If it is, the court below says it appears to be,a of art, Which, taken by itself, without the aid of the testimony, is unintelligible, then Its meaning in I the art '-the tr8:de--is one of the material facts in the case on which tbe rights ofthe partiesdepend,llnd it should have been found and put Into the findings oUact which the circuit court was reqUired by law to make. * * · If, in point of fact, tbere is no passage to which the name or de8criptioDof 'the northern' hall given in the trl'ide,then the question becomes one of construction, as applied to the known facts of the business. The inquiry is not as to which passage would be tbe quickest, or even the best, or which another contract would require of another vessel, but which is 'the northern passage,' within the meaning of thIs contract. The evident purpose of the libelants was to keep the. vessel as far as possible in the coolest of the passages that those engaged in the trade were accustomed to take: because it is found as a fact in the case that a cool temperature is necessary to the preservation of the cargo, and that the coolest water is north of the Gulf stream, owing to the fact that there is a cold current between it and the American coast, moving in an opposite directi?D." As to what constitutes a "northern passage" from Gibraltar to Boston, within the meaning of the the libelants in the district court called 10 witnesses, and the claimant 13. In the circuit court the libelants called seven more witnesses, and the claimant nope: From a careful examination of the record, 1 cannot but conclude that the libelants havesbown by,s, preponderance' of evi<;lence that in the Mediterranean fruit trade the term" northern passage" had a distinct meaning, and that it was a course from Gibraltar north of the Azores, if possible; if not" just south, ofthe islands;, southern point or tail of the Great :Bank!,l,and thendirect to Boston;'Thetestimonyofthe libelants seems tc>J;lle to be, @ the whole, mpre definite in character, and more disinterested, and therefore of greater weight, independently of the question of the number of witnesses. But, even if it should be considered that there is no passage in the trade to which the name of U the northern" could begiveo; L.amsatisfied upon the evidence 'that' the vessel did not. take the course .which it was understood by the contract she should have . The supreme court declares that if there is no passage to which the description of U the northern", has been given in the trade, then the-
Under the decision of the supreme ,court, (121 U. S. 469,
. qp.estion becomes one or construction, as applied to the known facts in business; in other words, the vessel should have been kept in the coolest of passages that those engaged in the trade were accustomed to keep. It seems to me clear that the cool passages those engaged in the trade usually took were to the north, or just south, of the Azores, and from thence to the southern point of the Great Banks; and that the John H. Pearson, by not taking this course, violated an express provision in the charter-party. In either view of the construction put upon these words, "the northern passage," by the supreme court, I am of opinion that the libelants have tnade out their case upon the evidence, and that a decree should be entered in their favor.
D. PennB1/lmania. Jan\1ary 18,1888.) Tpw- UNflAPB
" COXDlTIOX 01'
A b\lving ,a tqw 11;1 cbarge,attempted to run past the piers of · . bridge on a bad Jiigbt, a lligliwind. The tow collided with one ,of the ptersi and sunk. The impingement, was so slight tbat if the to1'V .'had beeu in good,order no serioUlJmIBcbIef would have'ensued. Whenthe trip was undertaken it was known to both the owners of the tow and the mas, ter, of the tow-boat. that, the to,:, was unfit to encounter the hazard!lof the . trip;' Held, tbat negligence was Imputable to both parties, and but half dam"aps were recoverable bVthe owner. Clf the tow. . : . . "
In Admiralty. C. L. Snowden & Co. against HenryM"Hodgson and others, late,owners of the tow-bos,tThe Wl)l·. Kra.ftjto recover damages for negligenttowage, causing loss of libelant's boat. K'T/,(Khfc'Reed, for libelants. baac S. Voorltis, fonespondents.
J. '. It has" been that it is negligence in both of t1i,e to",. and the master of the tug to proceed on a voyage with a tow known, to be unfit. to encQunter .the hazardlil of the ttip,and, in case ofthelo,Bs of the tow due to, such concurrent negligence, the damages ,$h'oU'!d'l)e equally divided between the parties. . MaBOn v. TM Wm.MurRep. 404j T Wllt. Co:1:, 9 Feel"Rep. 672; Connolly v: Rosa, 11 Fed.' Rep; 842; The BtWdbttown, 16 Fed. Rep. 270. A careful consideration of the proofs in this case has brougbtl)le to the concl\lslonthat this principle is jtl'stIyappll6a'ble here. TlieltBe1ants' flat-boat was very old,-well nigh worn out,-and had been sided up to hold a cargo of nutcoal, with which it was loaded deep down in the water; and it was leaki.ng badly. These facts were known to Browll, the master of the Wm.