it covenants not to authorize the 'use of the 'Seibert patents outside of the Whether .i:nviolation of this; covenant or not j it etitere:d into another contract with the Nathan Company, under which the latter has emMtked in the manufacture a:nd sMe oflubricators, and, as clearly shown by the affidavits, the rivalry between the parties has become so fierce that :pricehas been reduced rrOlh$50 to $60 a set to 820: or $23. In other;words,thevalue of defendant's monopo]y (and it was evidently intended by the contract to give it a monopoly outside of the New England states) has been' practically destroyed by the act or connivance ofthe plaintiff; Under these circumstances, as there is no question mllde'With regard to the defendant's responsibility, we think the court cannot properly be called upon to enjoin in a summary way the further continuance of defendant's business.
et al. v.
E. D. New
York. March 8, 1888.)
The barge Wasp, while being towed up the Atlantic coast by the tug America, encountered a gale. and was anchored inside the Delaware breakwater, the America anchoring about half Ii mile distant. The water becoming rougher, the Wasp, desirous of changing her position, to the Americ& ,Her signal was, answered by the tug McCaulley, WhICh went to her, and was informed.-according to the McCaulley's story,-that she had 18 inches ofwater in her hold. The McCaulley thereupon notified the America, and was told, -as the McCaulley's witnesses the America would not go to the assistance of ,the barge, whereupon the McCaulley returned, and towed her to a place of safety. On these facts the McCaulley claimed to have performed a sal vage service. asserting that the refusal of the America to go to the Wasp put the latter in great peril, and that without the, aid of some tug the barge would have sunk at her anchor. The Wasp asserted that she had no water in her of any consequence, and that the McCaulley was not told that she had 18 inches; while the America swore that she had never refused to go to the aid of the Wasp, but had told the McCaulley that she would go as soon as she on the evidence, that the America had notrecould get up her anchors. fused to to the barge, and, as she was bound by her towing contract to render thIS service, the Wasp was at no time in peril; that the McCaulley's service was .therefore not a salvage service, and the libel should be diamissed.
In Admiralty. Goodrich,Deady&: Goodrich, for libelants. Samuel Park and BuUer, Stillman.&: Hubbard, for claimants.
BENEDICT, J. This is an !lction against the barge Wasp, to recover for a salvage service claimed to have been rendered that barge in December, 1885, by the tug McCaulley. It appears that"in December, 1885, the tug America, while engaged in towing the barge Wasp and the barge
.Reported by Edward G. Benedict, Esq·· of the New York bar.
Hornet from .Norfolk, Va., to New London, Conn., met with heavy weather, which caused her to take her tow into the Delaware breakwater for safety, where she anchored the Wasp about halt" a mile from the breakwater, A gale from the north-east came on, and afterwards, on the morning of the 27th of December, the wind shifted to the north-west, blowing heavily, and raising a rough sea at the place where the Wasp wasanchol,16d. The barge labored in the sea, and one or two of her hatches were stove in, whereby some water passed into her hold. She had on board a competent crewiwas not leaking, and her pumps kept the water under control. ,Her master, however, determined that it was wise to have her moved toa safer location near the ice-breaker, and at about 8 or 9 o'clock on the morning of the 27th set a signal in his ging to call the tug America to him for the purpose of being moved by her. At this time the America was at anchorabout a half a mile away, with· sufficient steam up to enable her to navigate. There was also about the,same distance away another tug, called the McCaulley. This latter tug, on seeing the signal on board the Wasp, proceeded to her, and tendered her services. According to the testimony ,of those on board the Wasp, her services were deolined, but she was requested to go to the America, and inform her that the Wasp desired to be towed up to the ice-breaker before the tide changed. After having spoken the Wasp, the McCau.lley proceeded to the America, and there bad a conversation with the master of the America about which there is a conflict of testimony. It resulted, however, in the McCaulley's returning to the Wasp, taking a hawser from her, and holding her up to her anchors until one of her anchorsw8ssecured, and then towing her, with one anchor down, to a place near the ice-breaker, where she was sheltered from the wind and waves. This service occupied from one to three hours, according to the estimates. It involved no extraordinary peril to the McCaulley, and was of benefit to the Wasp. The peculiarity of the case consists in this. According to the testimony of the captain of the McCaulley, when he spoke the Wasp the master of the Wasp informed him that she had 18 inches of water in her, and requested him to iuform the master of the America of that fact. When he reached the America he did report that fact to the captain of the America, and. thereupon the master of the America refused to go to the Wasp, but told the McCaulley togo to her, and do what he could. Accordingly the libelant contends that the refusal of the America to go to the"Wasp placed the Wasp in great peril, because without the aid of some tug the Wasp would have sunk at her anchor; that the McCaulley was the only tug able to relieve her, and, having done sa, is entitled to salvage reward. On the part of the Wasp the evidence is that she had no water in. her of any consequence; that the captain. of the McCaulley was not told that she had 18 inohes of water in her; that the services of the McCaulley were declined in the first instanoe, and only accepted in the end because of the further statement of the master of the McCaulley that. the captain of the America had to take the Wasp to the ice-breaker. There is also a sharp conflict as to what passed between the McCaulley and the captain