ufactured hay carriers under letters patent of the United States No. 279869, to Frank B. Strickler. The defenses were want of novelty and noninfringement. Erwin &- Benedict, for complainant. Offield &- Towle, for defendant. BUNN, J. The best judgment I have been able to form in this case from the evidence and from an inspection of the various patents and machines introduced on the hearing is this 1'hat the complainant's device is anticipated by the various patents introduced by the defendant; especially by the Walters patent, the Brower patent, the Church patent, the Jordon patent, the Kirch patent, the Hennyton patent, the Hustis patent, the Drake patent, and the Van Sickle patent. That in view of the several patents and .machines, all prior to that of complainant, and' apparently accomplishing substantially the same results by substantially the same means, there was very little left upon that line for inventOl's to. work upon, and that the difference between the complainant's device and those preceding it is a difference of form and mechanics, and not one of art and invention. ComJ:llainant's bill dismissed, with costs.
(DiBtrict Oourt, S. D. N6UJ York;
By our law. as wen as by the York-Antwerp rules, the ship-ownerfs entitled to general averagoe contribution from the cargo for water damage done to the vessel in ,extinguishing fire. No geneml average contribut.ion is due from the cargo to the ship-owners. if the sacrifi('e is caused by such negligence of the vessel as the ship-owners are responsible for. lIeld, on the facts, that no negligellce of the vessel was shown. The omission to comply with a port by-law requiring a locked lantern, is not, of itself. negligence, when such a regulation is not enforced by' the local authorities, and is not shown to have been known to the master, and where the Dsual ship's lantern was actually used. The proceedings before a foreigc board of inquiry are not legal evidence here. To entitle to general average contribution. the act of sacrifice need only be ordered by those who for the time being are in lawful control of ship and cargo, and, although this fire was finally extinguished llnderthe direction of the port authorities. held that, ae this was by them while in control, under the lex loci, and as the act was a maritime act for the common benefit of vessel and cargo alone, and not for the supposed interests of otber property in theport, the Ship-owners were equitably entitled to contribution. under the maritime law. as if the master had retained sole control. and ordered the sacrifice.
SAME-SACRIFICE ORDERED BY PORT AUTHORITIES.
A British ship was chartered to load saltpeter and jute at Calcutta for a voyage to New York. The charter-pa,rty provided that all questions of general average should be settled in accordance with the York-Antwerp rules. and the customs of the port of destination. After the vessel had loaded at. her moorings, and was getting under way. fire broke out in the fore hold,
BALLI f1. TBooP.
which the mate and men on the ship and those'summoned from other vessels were unable to put out. The port authorities thereafter took charge, in acwas unladen,and cordance with the law of Calcutta. A portion of the finally the vessel was scuttled, and the fire" drowned out." The rest of the cargo was thereafter taken out in a damaged condition. and sold by the mas· ter, and the sound cargo was forwarded for the owner's account to the port of destination. and there delivered. A general average bond having been given for the cargo, and an adjustment had, by which the ship·owners were allowed for the injury to the vessel caused by swelling of the jute, and for other water damage, held, in an action brought by the cargo owners against the ship-owners, claiming to recover the whole value of the cargo sold in Cal· cntta, that, as no errors in the adjustment had been shown, the s,hip-owners should be allowed such general average contribution, and libelants have a decree only for the amouJit due them under the adjustment.
In Admiralty. Libel, by Stephen.H. Ralli and others against Howard D. Troop and others, to recover $22,000 for cargo sold by master at Calcutta, in March, 1886. . Sidney Chubb, for libelants. Wing, Shoudy &- Putnam, for respondents. BROWN, J. The ship J. W. Parker, of 1,190 tons, was chartered by the libelants to load at Calcutta with saltpeter and jute in hales. On the morning of February 18, 1886, as the ship was getting under way, a fire broke out in the fore hold, which the men on board the ship and from other vessels in the neighborhood were unable to put out. After a half hour's work it was somewhat subdued, the hatches were put on to smother it, and the pumps were kept playing. Not long after, the port authorities came, and took general charge of the efforts to put out the fire, pumping large quantities of acid, steam, and water into the ship. That night the fire smoldered, all the openings being covered The fol. lowing day, 552 bales of jute were taken out by the master, when the port authorities required that she should be removed to the flats where the tide could flow over her, for the purpose of extinguishing the smoldering fire. The rest of the cargo was subsequently taken out in a damaged <londition, and sold by the master for $20,723.83, for which sum the libelants, as owners of the cargo, asked a decree. in favor of The defendants claim an otIset for a general average the ship as against the proceeds of sale, on the groun'd that the ship was sacrificed for the safety of the cargo; the water that was poured in, and that flowed over her after she was scuttled, in order to put out the fire, having practically destroyed the ship, through the expansion caused by the water in the jlite bales that had been screwed tightly into the hold. A general average adjustment was made, first at Calcutta, and afterwards at New York, the port of destination. By this adjustment, allowing the general average claim of the ship, the sum of $7,420.48 only was found due to the libelants out of the proceeds of ship and cargo. The libelants having refused to admit their liability for a general average contribution, that sum has been paid into the registry of the court. The libelants resist the general average charge on the ground that the fire was caused by the ship's negligence, and that the scuttling and 10SB of the
ship were under the, (),r4er of the port auth6rities,and not of the master. ',1. ,AB to negligence. 'It is no doubt the ordinary rule in the law of general average, that,where the ship's negligence has made the sacrifl.ce necessary, she cannot recover a general average contribution from the cargo. Many of the maritime codesexpressJy so provide; and the textbooks so state the rule. See the recent case of The Ontario, ante, 222. This proceeds, as I undetstatid, upon the ground that the ship is herself responsible to the carg0 for her own neglect. She therefore cannot take from the cargo under the name of "general average" what she is at the same moment boundto make good and restore by reason of negligence. If that is the foundation of the rule, it cannot apply to those causes of sacrifice for which the ship and owners are not legally liable; and by the statute, as well as the statutes: of the United States, there is no liability,fof'loss by fire "without the owner's fault or privity." MacI. Shipp. 9, 121; Rev. St. U. S. § 4282. To deny the owners the benefit of a general average contribution on the ground of negligence would impose upon them, in effect, a liability for the fire, from which the statute exempts them. 'rhi!fShip belonged to' New Brunswick, and the owners are therefore exempted from any liability by reason of this fire, there being no fault or'privity on their part. The charter; moreover, provided that "all questions ofaverage should be settled in accordance with the York-Antwerp rules,and with the established usages and laws of place of destination." Rule 3 of those rules declares that "damage done to the ship or cargo, or either of them, by water or otherwise, in extinguishing fire on board the ship, shalLbe general average." This rule does not except cases of negligence by the ship, nor require the sacrifice to be made by the master, or by his order. In the Antwerp conference of August, 1885, the question was propounded whether the rules should be modified in case the original cause of the loss was the ship's negligence, or the proper vice of the ship br cargo. The'solution determined by the conference was that rules of common average ought to be applied, even though the danger, the, primordial cause of the sacrifice or expense, had been brought , about by the fault of the captain or crew, or of a person interested in the cargo, or the proper vice of the ship or cargo; the recourse that the fault or proper vice gives ought to be kept independent of the rule of common'average." 5Valroger Droit Mar., App. question 32, p.389; solution 22, p. 405. The cause of the fire, and,thetefore, the alleged negligence, .nre moreover not established in this case with any certainty. The' cargo had been cov.ered the night before, preparatory to sailing. On the morning of the fire, as the ship's chains were being hove in, one of the seamen: was directed to go into the chain locker forward to stow them away,;rH'e took a globe lantern, and went into the chain locker, through a narrow'passage between the bales of jute under the deck, and about 10 or 15 minutes afterwards. was heard ,to <scream, and at the same time amoke came pburing out of the hatch. The libelants charge that the jute was set on fire by some improper use of the lamp. But there is no proof of this. The lamp may have been taken out of the 1autern, or
brokenaccidenta:lly in haudling the chains. 'I1lie respondents claimthat the fire WaB spontaneous, and naturally showed itself soon·after the ing of th.e hatch gave it air. Jute in bales is liable to spontaneous bustiou; and, as the seaman lost his life, there is no testimony sufficient to determine with any certamty the origin of the fire. Thf' proceedings of the marine court of inquiry at Calcutta are not competent evidence here. The frequency of fires in cargoes, and the difficulty of determining their origin, are said to be among the reasons of the statutes exemptingowners from liability for damage by fire. A regulation of the port of Cll1cutta required that no lantern should be taken below except by an officer, and only when it· WaB secured by lock and key. There is no proof that the master or officers of this vessel had any knowledge of this regulation. The regulation is a strictly local one. The evidence shows that other foreign vessels at Calcutta had no knowledge of it; and it would Seem to have been a dead letter. The port pilot, who was in charge of the ship at the time, was not examined in reference to it. The lantern is proved to have been such as was. usual in such vessels, having brass guards, with the lamp fastened by a screw at the bottom. The failure of foreign ships to comply with local regulations not brought to their knowledge does not, in general, constitute a fault. The .J. Fraser, 21 How. 184,188; The New Yorkv. Rea, 18 How. 223; TheE. A. Packer, 10 Ben. 520. The question of negligence, as respects general average, must be determined according to the general rules of navigation. Manifestly the use of an unlocked lantern in'going below cannot be held to amount to negligence in one port, and not in another port, upon the same voyage and with the same cargo. This was the ordinary ship's lantern, secured like those in almost universal use. The use of such a lantern was not in itself negligence. The chief witness for the libelants on this branch of the case, Inspector Forsyth, says twice that it was not unsafe to go below with this globe lantern. It is not at all certain, as above stated, that the lantern caused the fire; or, if it did, that its unlocked had anything to do. with it. I think the claim of general average cannot be rejected on these grounds. 2. Sacrifice. The libelants contend that the sacrifice of the ship arose from her scuttling; that this was done by the order of the port authorities, and was not by the act of the master; and that the motive was not the preservation of the cargo, but the protection of the port, and of other vessels and property. By the local law it appears that the commissioners and, under them, the conservator of the port of Calcutta, have a general authority overvef:lsels on fire; and the master is subject to heavy penalty, in case of fire, for not taking the proper order, and observing their directions. Calcutta act of 1875, §§ 17, 36. The .master, when this fire broke out, was ashore seeking a tug. The chief officer gave the alarm, and the port officials soon appeared, and took the chief direction of affairs. The master, several times during the following two days, was.de. sirons of having the hlltches opened, and ofremoving more bales, which th.eofficialsprevented. But it is evident from their testimony that the
fire waS no time subdued until it was IIdrowned out"by scuttling the ship. Large quantities of carbolic acid, steam, and water had suecesively been pumped into the ship without extinguishing the fire. The master did not object to the scuttling. The chief difference between them was in respect to keeping the hatches open longer for the purpose of removing more of the cargo, to which tpe officials objected in consequence of the increased draft of air serving as fuel to the flames. It is perhaps to be inferred that the general authority given to the port officials was either on account of their better knowledge of the mode of dealing with fires likely to arise in cargoes shipped at, that port, or for the protection of the port or other shipping, which might sometimes require other measures than the masters might adopt; and if it appeared in this case, or if the evidence warranted the inference, that their measures were adopted in view of any actual or supposed danger to the port, orto other ships, and that they acted differently than if the common benefit of the ship and cargo alone were considered,-in other words, if there was any sacrifice of the ship and cargo for the supposed interests of other property,-1 should consider the case not one of general average. But there is no evidence to warrant any such inference. This ship was far from shore, and apparently threatened no other property. The circumstances do not indicate that there was any conflict of interests between the ship and the shore, or that the port officials in any degree designed to sacrifice, or did sacrifice, any interest of the cargo to the safety of other property. There was no occasion, and no motive, for their doing so. The most that can be inferred is that there was sorile difference of judgment between them and the master'asto the amount of exposure that it was prufire; and in a case of a difference of dent to permit to the judgment the determination must rest with those upon whom the law for the time being imposes the responsibility of action,-in this case, the port officials. There is no sufficient reason to conclude that they did not act intelligently and honestly, or that their order to fill the ship with water was not the best thing that could be done for ship and cargo. The interests of·all were apparently identical. It is sometimes said that the sacrifice, in order to give rise to general average contribution, must be made by the master, or byhis order. Wamsutla Mills v. Old Cclony, 137 Mass. 471,474. But this is not exact. Such a condition is not an essential part of the right to a general average contribution. It is sufficient if the Sa<:lrifice be made for the common benefit, and by those who for the time being are charged with the control and responsibility. Tl)e duty of contribution is one of the oldest maritime rules. It does not rest upon contract, or upon any artificial theory of agency, but upon the fundamental natural equity, that what is sacrificed for the safety of all shall be made good by contribution from all that is thereby saved. The sacrifice is, doubtless, usually made by the master. But his order is not essential. Such a condition forms no part of the prescriptions of most of the maritime codes. Among the provisions of very many of these (lodes to be found in the appendixes in Lawn. Av. (4th Ed.) 351-672,1 find no such requirement, except in the Code of Germany,§ 702. Val-
BALLI t7. TROOP.
roger, commenting on this peculiarity of the German Code, says, (5 Droit Mar. § 2006:) "An action for contribution cannot be denied simply on the ground that the' jettison was made without the ('.aptain, if it was really necessary." IDrich, the German commentator, observes upon this text of the German Code that what is meant is, "the commander of the vessel at the time;" and that a proper order made by the next officer in command during the master's temporary absence would be a case of general average. Upon the same view he further states that, where a pilot is in command, he is considered as the master's representative; and that the pilot might order the sacrifice "in conflict with the master, without depriving the sacrifice of the character of a general average loss." Haverei-Gesetze, 6, 7. In Price v. Noble, 4 Taunt. 123, general average for a jettison was sustained in the case of a British ship, though the jettison was made by a prize crew put on board upon a capture by a French privateer. In Walker v. insurance Co., 11 Sergo & R. 61, Chief Justice GIBSON says that "the loss must arise from the direct agency of some one acting for the general benefit;" and the general rule requires only that that person shall be some one having lawful authority to determine for the time being. In Lawrencev. Minturn, 17 How. 100, 110, Mr. Justice CURTIS, speaking of a jettison, says: "It will be deemed to have been necessary for the common safety, because the person to whom the law extended authority to decide upon and make it has duly exercised that authority." Under the local law of Calcutta, the port commissioners for the time being had this authority. They were in the situation of master as respects all'measures to be taken to put out the fire, and for the common benefit. To disobey them was a criminal offense in master or crew. For the most part, they and the master acted in concert; and upon a difference of judgment as to the length of time it was expedient to keep the hatches off, or to delay filling the ship with water, since fires in jute cargoes were not uncommon in Calcutta, it is probable that their judgment was better than the master's, and this may be one reason why this authority was committed to them. Both ship and cargo were sllbject to the operation of the municipal law of Calcutta so long as they remained in port; and it is that which made the conservator's order equivalent to the master's. Tws in no way excludes the application of the maritime law as respects contribution. In hundreds of cases the municipallaw becomes the basis of the application of maritime rules; cases of pilotage, and of statutory liens for supplies are familiar instances. In the case of Wamsutta Milk V. Old Colony, 8ttpra, emphasis was laid upon the fact that the ship was moored to the wharf, and subject to the general police authority on shore. This case is different. The ship was not along-side the Wharf, but far away,. and the conservator's authority over the ship was special. The act of filling and scuttling was a maritime act, in the interest of the ship and cargo only, and, as I think, subject, as respects contribution, to the maritime law. It is not uncommon that municipal aid is obtained in extinguishing fire. Nelson V. Bel'mont, 21 N. Y. 36. If that is ever to be held sufficient to absolve from
the duty of contribution, it' is:not, I think, ina present. Considering,that the whole doctrine of general average rests upon the highest equity;, that no technical rules prevent its application to all cases that come within its general purpose; that the York-Antwerp Tules were specially adopted by this charter; that there was no opposition of interests, in the sacrifice: made by filling and scuttling the ship; that the port officials' were by law in'command while the ship was on fire; that the purpose of the act of sacrifice was the. common good of ,the ship and cargo alone; that the circumstances indicate that there was not in this case any interest of the port or of, other vessels that in the least influenced the port officials in their action, or the smallest sacrifice of the ship or cargo in reference to any outside interests; and that there is no reason to, suppose that ,the orders were not honestly, and intelligently given,' or were not such as the officials would have given,as actual master, having nothing in view but the common benefit of ship and cargo, - I think the claim of general average contribution should be sustained. By the law of this country, water damage ,is a subject of contribution, (Heye v. North. German Lloyd, 33 Fed. Rep. 60, 36 Fed. Rep. 705,) and in this case, as I have said, the charter expressly adopted the YorkAntwerp 'rules, which ao declare, (rule 3.). These rules do not require the master's order. An average bond having been given by the libelants, and the loss being adjudged a proper subject of general average, and no errors being shown in the adjustment, the decree should he for the libelants for the balance stated by the adjustment. Though the Ii. bel does not claim the amountresultillg from, the general average, but the whole proceeds of the cargo, the amount due the libelants on the average adjustment having been paid into court, it should be decreed to them, ul1derthe prayer forgel1eral relief. Dupont v. Vance, 19 HOlr_, 162; The J. P. Donald8on, 21 Fed. Rep. 673.
& MERSEYMARINE INs. CC',
(Di8triot Oourt, E. D. New York. July 16,1888;)
SHIPPING-GENERAL AVERAGE-PLACE OF ADJUSTMENT.
The bark Nina with a general cargo from Leghorn, bound for New York, put into Bermuda in distress, where sbe was subsequently con· demned and sold. Portions of the cargo were delivered by the captain at Bermuda to the agent of the consignees, and average. bonds were signed at Bermuda by the whereby they agreed to pay their contribution in accordance with the 'established usages and laws in similar cases. The adjustment was subsequently stated by New York average adjusters according to New York rules. Held, that New York was the proper place for stathlg the adjustment, and that New York rules must govern; also, that it was plain from the evidence that the parties so underatood it at the time ofthe delivery of the cargo at Bermuda. .