validity of.the patent, that judgment went for plaintiff in the trial of the cause. The presentation of the petition for a new trial has only tended to make more clear the fact that the sole question involved is that of inventive skill in producing the combination, yet upon this, the pivotal point, no new light has been shed upon the case. It was a doubtful question when the original hearing was had. The earnestness and zeal with which counsel for defendant have re-presented their views may have accentuated the doubt. but nothing has been adduced which satisfies the court that upon a new trial a different result would be reached. Consequently the petition for a rehearing must be denied.
THE NEWPORT, (NEW YORK & C. S. S. Co., Claimant.)
(C't'rcuit Court, S. D. NeuJ York.
Upon a libel for collision the direct testimony was that claimant's steamer, at tho moment of collision. was from seven to eight miles off shore, and that the schooner with which she collided sanlt within half a mile. Libelants urged that the schooner thus collided with was one they had lost, but the wreck of their schooner was found within four or five miles from shore. They undertook. howllver. to show, by mathematical demonstration. from certain bearings which had been taken. that the steamer could not have traversed the lines subtended by the angles thus formed. within the time allowed by her logs, upon any other course than one which was different from that shown by the direct testimony. but there was a variance of five minutes between the engineer's and steamer's logs, as made a short time before the collision. Held, that the demonstration based on these logs was not sufficient to break the force of the direct testimony, and that the schooner collided with was no$ that of libelants.
In Admiralty. On appeal from district court, 28 Fed. Rep. 658. Libel by Alfrederick S. Hatch and others against the steam-ship Newport, the property of the New York & Cuba Steam-Ship Company, claimant. From a decree for claimant, libelants Finding8 of Pact. (1) The libelants' schooner John K. Shaw left Newbound for New port News about noon on the 21st of February, Haven, with a cargo of 324 tons of coal and 110 tons of pig-iron, the irQn being on deck. (2) On the aftp.rnoon of February 24th some wreckage floating in the ocean off theJersey coast was found by the tug-boat Maggie Moran, which was known to be part of the John K. Shaw by its having on it the bell of the SbllW. This wreckage was part of her deck, with steering. gear, on which deck was the taffrail and a portion of rail on each side,. there being no break where the the taffrail, and onit was also the ;starboard d/!.vit uninjured. (3) At. daylight 1n the morning of Sunday, February, 24, 1884, the masts oewreck were se,en standing out of the water at a point about four and a ,half miles off
.shore, between Deal Beach and Long Branch, N. J., at a place where the lights of the Navesink bore N. by W. i W., and Long Branch pierN. W., about 12 miles south of Scotland light-ship. (4) On the 23d of February the steamer Newport left the city of New York bound forCuba. She was an iron vessel of 2,875 tons register, and one of a. regular line of steamers running between New York and Havana. As she went down the bay the weather became foggy and stormy, and the steamer achored in the lower bay about 4:25 or 4:30 P. M,. At about 5:15 or 5:20 she got under way again. At aboflt 5:40 Sandy hook was bearingW.,andat abopt 5: 50 she was abreast of the Scotland light-ship, passing it a half mile to a mile to the eastward. (5) After passing Scotland light-ship, she tooka ()()urse of S. by E., on which she ran about 40 minutes, and then took a course of S. half W. After she passed the Scotlltnd light-ship, she was going at a speed of about 14 knots an hour. (6) At about 6:40p. M. of: February 23d, the Newport had a collision with a schooner. She was then between six and seven miles off shore.. (7) The Shaw,jn the ordinary progress of her voyage, could have rell,ched the point where the steamer and the schooner were in collision, or the point where the wreck referred to in the third finding was found, by 6:40 P. H. of that day. (8) The with which the Newport so came incollisionwas not the John K. Shaw. Goo. A. Black, for appellants. Robe:rtD. Benedict, for claimant and appellee.
LACOMBE; J., (after stating the findings as abave.) On February 21,1884, thelibelants'schooner John K. Shaw sailed from Newport News, Va., bound for New Haven. Since then, except as. a wreck, she haa not been heard from. At daylight, on February 24th, masts were seen standing out of water at a point about four and a half miles off shore, between Deal Beach and Long Branch. Wreckage identifi&d as coming from the Shaw was, on February 24th and Eubsequentdays, found floating in the water or stranded at different places on the beach. On Februltry 23, !1884, the steamer Newport, bound from New York to Havana; was in · collision with an unknown schooner. The 1011: states the time of the collision as 6:40p;M., ·and adds that apparently no damage was done. These factS are undisputed. Libelants undertake further to show that the unknown schooner was the Shaw; that the collision occurred wholly through the steamer's fault; that it took place within half a mile of the place where the masts of the wreck, above referred to, were subsequently found; that the .collision resulted in the starboard bow of the Newport breaking open the Shaw; and causing her to sink; that she did so sink within a few minutes after collision, at the place where the wreck was found; and that such wreck was it fact the .Shaw. This case presents solely questions of fact; and to the careful· and elaborate · ·of the testimony, which is found in the opinion of the learned district , judge, little need be added by this. court. As to certain points more or · leSs. retied upon by as the comparative heavinesa pi the ! Shaw'el()ad, and UIepreseI;lceor absence o( a. ,deck-lQa.d on
with which the Newport was in collision,-the proofs in this court tend strongly to modify his opinion. But upon the whole case, as it now stands, there seems to be no sufficient reason to dissent from his conclusion. As one branch ofthe libelants' case,' however, is fortified in this court by an argument, apparently not advanced before the district judge, a brief con5ideration of such argument will not be inappropriate. It is shown by direct evidenctl that the wreck,which libelants claim to be that of their vessel" lay probably about fOUf and a half miles, certainly not more that five miles, off shore. They also contend that the schooner with which the steamer was in collision sank within a few minutes, and before she had sailed half a mile. In fact, the only theory upon which they undertake to maintain their contention that the colliding schooner was seriously injuredis found in the statement of the two or three witnesses, who speak of her as listing over and going down within a few lengths. Unless, then, it can be shown that the steam-ship, at the time of the cOllision, was within half a mile of the place where the wreck was afterwards found, the claim that the steamer was in collision with the Shaw cannot be sustained. Thtl weight of the direct testimony in the case is clearly to the effect, as the district judge found, that the Newport was from seven to eight miles off shore at the moment of collision; and that she passed Scotland light at such a distance, and thereafter followed such a course, at such a speed. as to bring her to that point at 6:40 P. M. The force of this libelants seek to break by an acute and elaborate mathematical argument. Taking the compass bearings of Sandy Hook and orthe Scotland light-ship as recorded in the logs, and laying down onthe chart the angles formed thereby, counsel undertakes to show that the lines which subtend those angles could not have been traversed by the steam-ship within the time allowed by the logs upon 'any course other than the one which (contrary to the weight of the directevidence) he assumes to be the one she followed, and certainly not on the courje which the weight of the direct evidence shows her to have taken. This argument would no doubt have all the conclusiveness of a mathematical demonstration if its premises were as certain as those from which the mathematician reasons. Such, however, is not the case. The libelants rely upon these entries in the logs: "5:35p. M., Sandy hook ,'abeam, [engineer's log;] 5 :40, Hook west, [steamer's log;] 5 :50, passed , Sc6tland light-ship, [steamer's log.]" Both the logs state the time ofcollision as 6:40 'Po M. This is explainable either upon the supposition that the respecUve recording officers correctly noted the time, and that the time-pIeces to which they referred agreed; or upon the supposition that some mutual agreement as to the time of this unusual, and possibly important, occurrence was arrived at before the entries were originally put down on the slate, or finally entered in the logs. On the same afternoon, however, the steamer had anchored for several minutes, and subsequently got under way. .These occurrences are thus recorded in the logs: "4:25, thick weather, snow, came to anchor lower quarantine, [steamer's log;] 4:30, anchored, [engineer's log;] 5: 20, clearing up: got , under way, [steamer's log;] 5:15, started again) [engineer's log.]" The
discrepancy in these entries may be explained either upon the supposition that the time-pieces referred to by the recording officers did not agree, or upon the supp05ition that tJ;1eee officers did not note the time with absolute accuracy. Under either assumption we must be prepared to find similar variances in other similar entries made by the same officers at about the same time. When a margin of error so great as this [five to ten minutes] is to be allowed for, the entries as to the bearings of the hook and, the light-ship cannot be trusted to support an argument so closely reasoned as that of libelants' counsel. The force of the direct testimony not being thus broken, and its weight supporting claimant's contention that the collision oocurred at least more than six miles oft' shore, it follows that the unknown schooner which the Newport encountered was not the Shaw. The decision of the district court is affirmed, with costs.
(December 28, 1888.)
LACOMBE, J. The reargument in this case has covered so wide, a range that I have felt it necessary to review the greater part of the testimony. No substantial change, however, has been thus wrought in the conclusions announced in the original opinion. I was not then able from the testimony to indicate upon the chart the exact position of the Newport at 6:40 P. M., nor am I now. The testimony as to the courses taken by that vessel after passing Scotland light-ship is not sufficiently positive to support the precise statement contained in the fifth finding, which was not as carefully drawn as it should have been, and should therefore be now amended by stating that she took a course of about S. by E., on which she ran about 40 minutes, and then took a course of about S. halt W. The same finding should further be amended so as to state. her speed after she passed the Scotland light-ship at over (instead of about) 14 knots an hour, as I feel satisfied, from a re-examination of the testimony, that I did not allow enough for tlle action of the wind, and entirely overlooked the operation of the tide. While unable to locate the precise position of the Newport at 6:40 P. M., my re-examination of the case has not changed the opinion heretofore formed that she was more than six miles off shore, and hence could not have sunk the wreck afterwards found four and a half miles off shore. The bearing testified to by Johnson was not overlooked upon the first examination of the case, nor was it doubted that he took the bearing accurately. It does not follow, however, that his unaided recollection of what that bearing was, and of the time and place at which (relatively to the steamer's prior movements) it was taken, should be accepted as controlling of the case, unless upon a weighing of his testimony in comparison with aJl the evidence considered as a whole the fair preponderance of probability is that the Newport and the Shaw were at the same place at' 6: 40 P. M. My former opinion as to the preponderance of proof on this point is unchanged by the reargument. With the alterations above suggested, the findings and conclusions may stand. v.o6F.no.14-58
FEDERAL REPOR'IER. THE LUDVIG HOLBERG. THE LEONARD RICHARDS. '
THE F. O. MAT'l'HIESSEN & WIECHERS SUGAR REFINERY Co. V. THE LonVIG HOLBERG and THE LEONARD RICHARDS. STAFFORD 'D. SAME.
(District Oourt, 8. D. Nt'/W York.
The small steamer L. H., bound out from New York, on May 24.1887, collided in the lower bay at about 4:25 P. M., near buoy No. 11, with an inward bound bhrk, towed by the tug R. Upon extremely conflicting testimony the court found that for at least 15 minutes before collision there was so much fog between the Narrows and 'buoy No. 11, 3 miles below, asto prevent vessels seeing each other for more than a short distance. Held, that fog-signals were then required to be sounded. A tug which tows a bark on a hawser astern in fog, should indicate the pre'Bence of her tow astern by sIgnals. The Oity of Alexandria, 31 Fed. Rep. 427, followed.
SAME-TUG AND Tow":"'FOG-SIGNALS.
SAME-CASlii STATED-SPEED--NEW YORK TIDAL CURRENTS.
A steamer going"dead slow" in fog, met a tug a little on her starboard bow, and starboarded, her helm, and passed her in safety, having received two blasts of the tug's Whistle, but no signal to show a tow astern. The had a bark in tow on a hawser over 70 fathoms long, which was not ll6en in the fog.' The bark was not in line, but to of the tug. and her whe,el was ported as soon as she was seen from the steamer. The latter being unable to clear her by going to port, ported so as to go between the tug and bark, and reversed full speed, and hailed to cast oft ,the hawser, which was not done. The tug and bark did not stop, and the stllamer's starboard pow struck and parted the hawser, swinging the steamer',s stem to port, and striking the bark's port quarter at an' of about three points. In actions for this collision on behalf of the bark and cargo against the steamer, (to which the, tug was not made party, owing to her arrest in another district,) held, that the steamer was free from fault; that the collision was due to lack of proper fog-signals to show 'a tow astern, and to not casting oft the hawser. Al80 held, that tbe steamer's testimony as to her speed was confirmed by coast survey reports of the tidal currents in New York harbor. See abstract in note to opinion, (page 917.)
In Admiralty. Libels for damages. Libels by the F. O. Matthiessen and Wiechers Sugar Refinery Companyand by owners of the bark against the steam-ship LudvigHolberg, impleaded with the steam-tug Leonard Richards, for damages resulting from collision. Sidney Chubb, (Goo. A. Block, of counsel,) for refinery company, libelant. Owen & Gray, for libelant, Stafford. Wing, Shoudy & Putnam, for the Ludvig Holberg. BROWN, J. On the 24th of May, 1887, as the bark Quickstep was coming up the lower bay in tow of the tug Leonard Richards, upon ,80 hawser from 70 to 100 fathoms long, she came into collisiun with the steam-ship Ludvig Holberg on her way out to sea. She was her port quarter, a little aft of the mizzen chains, by the steamer's port .bow or stem, ·at an angle of about three points, and a large hole,stov.e in, through which she speedily filled with water. Before sinking she was towed by the tug a few lengths only, to the flats on the .west bank, about