before the expiration of the patent cannot be used after such expiration, anr! that, upon sufficient cause shown, an injunction against such use will be indefinitely continued. The authorities cited sustain this proposition mainly upon the theory that the court could during the life of the patent order the destruction of the machine or article, and that the injunction forbidding its future use is merely the practical equivalent of such destruction. The contention of the defendant as to the effect upon this proposition of Root v. Railway Co., 105 U. S. 189, need not be now considered. The case at bar is not within those authorities. All the parts of the patented article were old; their manufacture, sale, ac.cumulation, or use was free to all. The patentee's monoply extended only to their combination. The infringing article would be destroyed when the combination of its parts was broken up, and the further destruction of those parts themselves which by the patent would be an interference with defendants' property not warrantedbyany ofth a .fluthorities cited. The combination of parts in the defendants' infringing artioles(having been once bona fide broken up, a recombination of the (lId parts alter the complainant's monopoly has expired will not be joined. 'Motion denied. .
: .··. !.
(Ot'rcuit Court, S. 1. ,
York. December 1,1888.)
COLJ,tsION......VES$J!lLSAT BULH:·HEAD-OBSTRUC'j.'ING C,ij:ANNEL.
The ship T. moored at il. bulk·head with her bQw projecting about .16 fee' into a canal 157 feet wide, leaving sufficient spa()e for 'vessels to pass. wards a bark moored at a bulk-head on: the other.side,with her bow project" ing so far,into,tlle canal that it would be difficult fqrv6BselS The S., with a car-float in tow, and in an unfavorable condition of the tide, attempted to pass between the vessels, and collided with the' T.Held; that the T. was also in,fault in remah;ling in hcr position after the ,hark moored on the other and the damages should be divided. . '.'
.. .. ' ..
'. The T. was a"tramp" steamer, occasi.onally visiting the port gf ' New York, and WA.S under' a charter for " voyage l to Bombay, under which she would have earned, above expenses.ll>. J per day. The charter stipulated. for demurrage at the rate,of £45 per day, while that the custortiaiy allowance at 't'l1e' port of New York for detention of vesse1s the size of the Twas $262 per day. The vessel had no engagemantbeyond the immediate v.oyage, and it was not shown that after her arrival at destination,she found immediate employment. Held, that neither the demurrage rate specill.edhi the eh'Iirtel'. nor the customary demurrage rates at the port oiNew York. suppliedI' satisfactory criterion of the loss sustained by detention: quring . ,repairs; that. the amount .of the consequeu,tialloss 'f.aa the the market value for the use of the vessel or her probatile net dunng the period of detention; and one way of ascertaining tMsWM'bj flnding what . she W8S, earning at the time, or immediately before' anel after the eQllision; lI:nd that if at the time, she was employed under a a long period of tIllie, the average daily earnings under the charter may be taken' asthe'criterion. '. ,'! !.::;,:;'
BA¥E-DAMAGEs-DETENTION OF VESSEL.
THE MARGARET J. SANFORD.
In Adllliraity. Libel for damages. 20 Fed. Rep. 714. WilhelmU8 Mynderse, for appellant. R. D. ]Jenedwt, for appellee.
On appeal from district court.
WALLACE, J. The steam-ship Tantallon was lying at a bulk-head at the Empire Oil-Works, Hunter's Point, East river, March 31, 1885, taking in a c.argo of oil. Her bow projected about 16 feet across a canal 157 feet wide. which ran from the river between the premises of the Empire Oil-Works and the Standard Oil-Works. The bulk-head on the other side of the canal was 70 feet further out into the East river, and at this bulk-head lay an Italian bark, also projecting partly across the canal; stem some 30 feet, and her bowsprit 30 feet further.' The bark took her position after the Tantallon was moored. About noon the steamer M!lrgaret J. Sanford, with a loaded car-float lashed on her port side, consigned to the StaJlda;rd Oil Company, attempted to enter the canal. In so tl.J.e port bow of the float struck the starboard bow of the Tantallon, iIlflicting injuries which were repaired at. the expense of $700, and which also necessitated a delay of seven days in the loading :of the steamer, detaining her that time beyond the lay-days provided for in her charter. 'This suit was brought tQ recover for the damages thus sustained by the Tantalloo. The district court held both the tug, and the steam-ship in fault, and divided the damages, and. allowed no damages Jor the detention of the Tantallon beyond the expense of wages . and maintenance of her crew and wharfflge. The owners of the. Tantallon have appealed. . It is plain upont1W evidence that the attempt of the tug to pass be-. tween the two vessels upon the tide as it was then, incumbered by a heavy and unwieldy float, was one which could not be made with pru-. dence unless the tug had the extra assistance her master called for, but was unable too,btain. Her master was aware of the risk of at.;. tempiiJ;1gto, pass between the two vessels by which theentrance to the .canal was obstructed, but preferred to encounter it, boping doubtless to be a,ble to avoid collision with either, rather than subject himself to the inconvenience of abandoning temporarily the undertaking in which the tug was engaged. The case, as regards contributory fault on the part of the Tantallon,does not turn upon the question whether she wasoriginlllly .culpftble in taking a position in which she unnecessarily projected a few feet across the entrance of the ,canal. Probably, until the took a position on the other !)ide. of the entrance, proj,ecting still further across the entrance, there was sufficient, room left for aCCeSS to the canal for tugs with floats,and for all the purposes of the ,Ordinary naVigation of the place; but after that the ;entrance was obstructed' to such an.extent .as"would necessarily embarrass the movements of tugs with tows, and measurably with theiraccessto the;canalin the usual 001lfs.e of traffic.' this became apparent" the Tantallon was not,ju,stlfred in remaining in her previous position, even though qntil then it was a proper pne.Tl1ere was plenty. of room, and noth.j.ng in to
mit her to be moved astern. She cannot be· exonerated merely because after she had taken her position the vessel on the opposite side of the entrance ought not to have taken the pbsition she did. It was then that the probable danger of the situation should have been foreseen, and obviated in the exercise of ordinary care; and the Tantallon cannot excuse her own omission to do this because the peril of the situation was primarily attributable to the misconduct of the other vessel. The Tanlallon must be deemed in fault because at the time of the collision she was assisting in an unne(,Jessary obstruction of the canal, which impeded and complicated the movements of the 'tug and float. The case falls within the rule laid down- in The Oanima, 23 Blatchf. 165, 32 Fed. Rep. 302, and many other authorities, which it is unnecessary to cite. By the decree of the district court the libelant was allowed, besides one-half of the cost of the repairs of the steamer made necessary by the collision; one-half of $375.55 for consequential loss. That sum represents the amount of the port expenses of' the Tantallon during the seven days she was detained by repairs. Nothing was allowed by way of'demurrage. The Tantallon was an English "tramp" steamer that occasionally visited the port of New York. She was under charter for a voyage to Bombay when she was injured, and was at the time being loaded for the voyage. .She would have earned freight under this charter, above expenses, of about $70 per day 'for the time ordinarily occupied in loadin8, sailing, and discharging. The charler stipulated for demurmge at the rate of £45 per day. She had no engagement beyond the immediate voyage, and ,there is nothing to show that after she arrived she actually found employment at Bombay within seven days. After she reached Bombay she engaged in the coasting business for a time, and then returned to England. It appears by the testimony of a witness for the libelant that "the customary and usual amount to allow for detention for steamers for the class and size of the Tantallon" at the port of New York was 20 centsRton; being, for the Tantallon?s tonnage, $262 a day. The libelant also gave testimony to show what the Tantallon could have earned upon a return voyage from Bombay to New York, and it appears that if she could have got a cargo immeciiately, both at New York and Bombay, she could have earned for the time ordinarily occupied·by the r6und trip about $140 per day net freight. It· was held in this court by Mr. Justice NELSON (The Hermann, 4 Blatchf. 441)that the charge for lay-days in the charter-party under which the vessel is employed at the time of Ii collision furnishes no test to determine the damages for her detention during the time of herrepairs. Upon this authority the stipulated rate of demurrage in the Tantallon's charter must be rejected as evidence other actual loss by detention. It is not necessary to decide in the present Case what effect should be given to the demurrage rates which prevail at a particular port, either by the regulations of a'illaritime exchange, or by the general recognition and acquiescence of t.he rnercantilecommunity, as evidence of the amount of loss by detention. In a case where that port is the place, or One of the places, at which the'vessel is commonty employed,
THE MARGARET. J. SANFORD.
such rates would·afforda: .criterion, and in some cases perhaps the b,est practically attainable,of the value of the lost use of the vessel while she is detained there. But such evidence is certainly not conclusive, and it is so often misleading that it should not be given controlling weight when better evidence can be supplied. The present case well illustrates the unreliability of such evidence', because it appears by the testimony introduced by the libelant that under the most favorable circumstances, and with constant employment, the Tantallon could only earn about $142 per day above expenses. The disparity is so great between any actual loss which could possibly arise by her detention, and the hypothetical.loss indicated by the demurrage rates, that the latter are o(,no value whatever as evidence. If it had appeared that the steamer was under a charter to return to New York, her intended voyage to Bom,b,ay and the return voyage could be treated as a round trip, and an allowance for her detention upon the basis of her average daily earnings above expenses for the round trip might have been awarded" As it is, there is really n0 satisfactory. evidence of the value of the use of the .' vessel during the period of her detention except such as is derived by computing her average daily earnings above expenses upon the. basis of the freight by· the charter. under which Rhe was employed at. the time. It is a reasonable presumption that if she had not been detained seven days she would have fulfilled her engagement, and earned the freight stipulated by the charter in seven days less time. If the Tantallon cO\lld haye dis:Jhargedber cargo at Bombay seven days earlier than she did, she. or might not have found other employment immediately;.· but however this might have been, it is plain. that shew8s obliged to devote SElyen days.more to earning the freight than she would if she had not . been detained by the collision. Her dailyeamings: during the period fjf her engagement were reduced proportionally. Some of the authorities, and some of the decisions of this court, have ,commented updn the difficulty of ascertaining the consequential loss r&o sultingirom and use of a vessel in collision cases. Thus it was said in The Rhode IBland, 2 Blatchf.114, that "the precise amount, or eyen a reasonable approximation to it, cannot be ascertained by the ,apphcation of any known or fixed rule." Nevertheless it is not apparent why the same rule, an<l why evidence of the same character, should not be adopted in the solution of the inquiry as are resorted to when the owner of rothwkinds of property seeks compensation for the damages caused by the wrongful interruption of its use. If the owner of a horse, or a mill, or Dll:\.chinery, ora,house, is temporarily deprived of his use of the property by the wrongful act.of another, the law implies consequential loss as a necessary and ptoximateresult, and allo\Vs a ;recovery for, the value of its use as a proper item of damages, and permits the value to be shown by the opinion of witnesses conversant with the subject. Parke:r v. Oily oj Lowell, 11 Gray, 353; Allen v. Fox, 51 N. Y. 562; SatchweU v. Williams, 40 Conn. 371. In the large commercial ports the value of the hire of a vessel can as well be ascertained as that of most other kinds of property used for business purposes. As the question is one for the
opinion of experts it is very likely to be involved in considerable contradiction of estimates, but this is an objection which applies whenever a question of market value or usable value arises. The injured party is not necessarily confined, in proving his consequential loss, to the amount of the market value of the use of his lessel during the time of detention. Even where the loss arises from breach of contract the rule is that the party injured is entitled to gains prevented, as well as losses sustained, provided they are certain, and such as might naturally be expected to follow the breach, (Railroad (Jo. v.Howard, 13 How. 307; U. S. v. Behan, 110 U. S. 338, 4 Sup. Ct. Rep. 81; Griffin v. Colver, 16 N. Y. 489; Waters v. TIYWe1's, 20 Eng. Law & Eq. 410;) and the rule in torts isrestitutio in integram, (The Cayuga, 14 Wall. 270.) When the vessel is employed at the time of the collision, or when it appears that she would have been beneficially employed during the period of her detention, it is entirely clear that actual loss has attended the interruption of her engagements. The Olarence, 3 W. Rob. 283; WiUiamson v. Barrett, 13 How. 101; The Rhode island, 2 :51atchf. 114; The Cayuga, 7 Blatchf.385. In the present case, therefore, the inquiry i6 merely one as to the amount of the loss, and that is to be resolved by lI,Scertaining the market value of the use of the vessel, or her probable nei earnings during the period of her defention, by the best evidence attainable. One way of ascertaining this is by ascertaining what she was earning at the time, or immediately before and after the collision. This is certainly prima jade evidence of her earning capacity, and ·sufficient to require the wrong-doer to show that she was temporarily earning more than usual. As was said by Dr. LUSHINGTON in The Gazelle, 2 Rob. 279: "If the settlement of the indemnification be attended with any difficulty,-and in these cases difficulties must and will frequentlyoccur,-the party in fi.tult must bear the incon.venience." See, also, The Sta? oj India, 35 Law T. (N. S.) 407. When there is no other satisfactory evidence of her earning capacity than is shown by the charter under which she was employed at the time,and that charter contemplates her employment for a long period, the average daily earnings under the charter may be taken as the criterion. The general subject is well considered upon authority and principle· in the opinion of Judge LONG YEAR in The Mayflower, 1 Brown, Adm. 376. For these reasons $70 per day would seem to be a fair equivalent for the actualloss. It follows thnt an allowance for demurrage in the sum of $490, besides the amount of the port expenses, should be included in the damages to be divided. A decree is ordered for the libelant conformably with these views. The libelant is entitled to interest on the damages from April 7,1885, and to the costs taxed by him in the distriet court· . The costs of this appeal are awarded to the libelant.
SERVISS "'. THE CHATTAHOOCHEE.'
(DiBtrict Court, E. D. New York. November 30,1888.)
SUIJ'PING-LIABILITY OF VESSEL-NEGLIGENCE OF STEVEDORE.
In Admiralty. Libel by Deborah A. Serviss against the steam·ship Chattahoochee, for damages in sinking libelant's canal-boat. Hyland & Zabriskie, for libelant. Rice & Bijur, for claimant. BENEDICT, J. The libelant's canal-boat, having on board coal for the steamer Chattahoochee, was along-side that steamer as she lay in the slip, ahout to sail, and delivered coal.into her tubs until she was sQpplied. The canal-hoat lay stern out. her bow being about 100 feet forward of the steamer's stern. The stevedore of the steamer Chattahoochel'l, as soon as he had taken from the canal-boat all the coal required, took down his hoisting app,aratus. and, notifying the master of the canal-boat thathe was going to haul the boat up the slip, cast off the lines to thecanalboat, and carried the canal-boat's bow line aft to a steam-winch on the steamer's deck, aft, .and ,there, by starting, the steam-wi nch, put the canalboat in motion towards the bulk-head. At the time the canal-boltt was thus put in motion towards the stern of the steamer, the propeller ,of the steamer was revolving. When the canal-boat, under the impetus given her by ,the steam-winch, reached the steamer's stern, ,the action ·of the steamer's propeller drew her onto the revolving blades, by which,she was cut open and sunk. The question to be decided is whether the steamer is liable· for the sinking of the canal-boat. The stevedore was an employe of the,steamer, and as such it was part of his duty to move the canal-boat away from the steamer's side as soon as the steamer was supplied with coal. He undertook to haul the canal-boat up the slip by starting her towards the bulkhead, using the power of the steam-winch for that purpose. There is evidence that the boat could have passed the revolving propeller in safety if poles had been used by those on board of her to bear her from the propeller in passing. In this .instance no poles were used, and in consequence the boat was sucked in by the propeller, and sunk in the manner stated. The eontention on the part of the claimant is that it: was the duty of the master of the canal-boat to observe that his boat was ap1
Reported by Edward G. Benedict, Esq" of the New YOJ,'k bar.