larly in a case where a patent covers many claims,-in this case also covering both a process and an apparatus,-it would narrow the inquiry if the averments were made specific that the infringement was in reference to one claim, and not in reference to the rest. Still, whatever might be the decision if the matter was open to question, the practice is very general in bills in patent cases to simply aver that the defendant has infringed. Practically, 80 far as the present application is concerned, the certainty which is desired will be made patent by the facts that are presented in the moving papers; and practically, too, in all litigation before the question comes up for final hearing, the exact point of the infringement is so developed, by the testimony or otherwise, that the parties are not misled. So, while as a matter of principle it may not be so easy to sustain this practice, yet, in view of the great weight of authority as to the form of pleadings that are sufficient in patent cases, this objection must also be held not well taken, and the special demurrer will be overruled. Pitts v. Whit'l1Utn, 2 Story, 609; TurreU v. Oammerre:r,3 Fish. Pat. Cas. 462; Haven v. Brown, 6 Fish. Pat. Cas. 413; McMillan v. Transportation 00., 18 Fed. Rep. 260; McCoy v. Nel8cm, 121 U. S. 484,7 Sup. Ct. Rep. 1000.
(District Oourt, E. D. New York. April 19, 1888.),
BHIPPING-LmERTYTO CALL AT 'ANY PORT-QUARANTINED PORT-DETENTION -DAMAGE TO FRUIT CARGO-BILL OF LADING-EvIDENCE. ,:
The shipper of a cargo of fruit took from the ship a bill of lading cont,ain· ing permission to the vessel to call at any port or ports. One port. at which the ship was accustomed to call, was known to all parties to be quarantined. Evidence was given to show that the agent of the ship gave the shipper to understand that the vessel would not call at the quarantined port. Nevertheless the shipper thereafter accepted the bill of lading containing the permission, without objection. Thereafter the ship did so call.. and was detained inquarantine, and by snch delay the shipper's fruit was damaged. Held, that ,bill of lading governed, and that he could not recover in an action brought upon it.
Ulw, Ruebsamen « Hubbe, for libelant. Wing, Slwudy « Putnam, (a. a. Burlingham,) for claimant.
BENEDICT, J., This is an action to recover damages for a breach of a contract of affreightment. The libel sets forth II bill of lading, issued for the transportation in the steam-ship Sidoniau of 1,500 boxes of lemons from the port of Genoa to the port of New York. It also avers a payment of the freight, and a failure to cleli \'Cl' the 1l3lfions in like good order and condition as they were shipped. The libel further avers that the
lReI"orted by Edward G. Renedict, Esq., 01 the New York bu.r.
tQthe,lemons $.l'ose from the length of the voyage,owing to the leaving Genoa, called at Palermo,in Sicily, wheQJthad been agreed: that she.shoUld not call there. The bill oflading, which is made pa.rtof the libel, describes the voyage as from Genoa . to New York. It contains also .the following clause: "With liberty to calla.tallY port or ports, inllny rotation, for any purpose whatever." It appears f.rom the prior to the shipment of these lemons, a quarantine had be,-:1 established at the port of Palermo, whereby a vesselcorp.ing from Genoa was compelled, before entering the port of Palerrqo,10 go to the islalild of Gaeta, and there remain for the period of 10 da.ys. There is evirlenceto show that,' prior to the shipment of the lemons the agent ofthe ship-owner gave the shipper to understand that the ship would not call at Palermo on this voyage.. But it also appears that, upon the shipment of the lemons" the :billaf lading upon which this action is b8$ed wN! ;issued by thellhip, and received by.the shipper without objection; fact or the establishment of the quarantine at Palermo being thell. known to all parties. Thereaftetthe Bhip called at Palermo, that being one of the ports ordinarily touched. at by the vessels of thialineon their voyage to New York, and in consequence was detained by thequarantine 10 days. Upon these facts the libelant asks at the hands of this court a construction of the bill of lading so as to exclude the port of Palermo from the liberty to call mentioned in the bill of lading, upon the ground that, after the establishmeIJ.t of the quarantine, the port of Pa-', lermo could not be entered under ordinary circumstances, and so was not within the of the parties to the contract. But I am unable to see how such a construction can be given to the bill of lading. The words of the liberty to call are plain, and clearly include the port of Palermo. If the shipper had desired to exempt the port of Palermo from the liberty to call contained in the bill of lading, because of the quarantine then known to have been he should have procured a modificatioQ of the bill of lading. Instead of so doing he accepted the bill of lading without objection, and now brings his action upon it. It is impossible to permit him to recover in such an action, without setting aBide the established rule which makes the written contract the evidence of the agreement between the parties. The libel must be dismissed, and with costs.
THE LONE STAR.
TIlE LoNE STAk}
(DiBtriet (Jourt, E. D. Ne:w York.
April 7, 1888.)
SALVAGE-SALVAGE SERVICES-VESSEL AT DOCK-FIRE.
The steam-ship Lone Star lay on the lower·side of pier 87. North river, New York, when fire broke out on the Wharf, 'which spread with great rapidity, until the steam-ship herself caught fire. Various tugs came to her and when the hawsers which fastened her to the pier were burned away, some of them drew her orit into the stream, where other tugs came along-side, and she was towed, water being pumped on her mean time, to the fiats at Weehawken. where she sank. and the fire was extinguished. Held, that the tugs were entitled to salvage. '
COMPENSATION DIFFERENT GRADES OF SERVICE -
The services rendered by the tugs to the steam-ship differed in degree. Hetd, that the most important service was rendered liy the tug Pioneer, which the line on the Lone· Star by which she was towed ont from the burning pier into the river. To her was awarded $1,800 as salvage.$eld, f'Urrther., t;hat other grades 'of salvage services were rendered by the tugs which Rssisted in towing the steam-ship to-the fiats, and by the tugs which pumped water on the fire. To these tngs various sums, from $1,000 to $250; were· awarded.
SAME-IRON VESSEL-VALUlt OF SALVORS' SERVICES-BASIS OF TION. ,
The Lone Star was an. iron steam-ship. She was so much damaged by this fire that she was sold as a wreck. If she had received no assistance she would have been sunk in her slip, and would have been raised and sold ,as old iron, Held, that in ascertaining the vaLue :to th,e ship-owner the services rendered by: the salvors, the amount that the owners would have realized from her sale as old iron, if she had so sunk, should be deducted from tbe proceeds 'of her sale as a wreck. For tbepurposes of tbis computatiqn of salvage, sucb amount saved to her owners was found tobe from $22,000 to $29,000. The.total . award to the tugs was $8,850.
In Admiralty. Libels for salvage. Elevenditferent Eluits were brought against the wreck of the steam.ship Lone Star for salvage services rendered to her in the fire at Morgun's Line pier, in February, 1887. The suits were consolidated 011 motion. Alexander &: Ash, for Howard. Wing, Shoudy &: Putnam, for Kinny, Love, and Chapman. Wilcox, Adams &: Macklin, for Bridges. Butler, Stillman &: Hubbard, for McCaldin. Anson B. Stewart, for Hofman. Edward McCarthy, for Hicks and Sullivan. (]harle8 H. Tweed and R. D. Benedict, for the LoneStar.
J. This is a. consolidated action to recover salvage compensation for. services rendered b:r 12 different steam-tugs to the steamer Lone on the occasion of the at the pier of the Morgan Line, ill the North river, which occurred on the 28th ,day of February, 1887. The firebroku out upon a lighter loaded with cotton lying at the onter end of pier 37. The pier was a covered pier" and its shed was full· of cotton and other goods. . 'fhe tide was ebb, and agalew9.s blowing from the north-west.
lReported by EdwardG. Benedict, Elsq., of the New York bin'.