i, § 8;) and these are what the sole liberty of copying and vending conferred by congress applies to. The sole liberty is invaded when any material part ofwhat i's the author's own work is appropriated. Sayre v. Moore, 1 East, 362, note; 2 Kent, Comm.382, note. The work of Gilmore was 'written for a presidential campaign, and that of Alger for young persons; and this difference of purposes is relied upon as a justification. But the author's right is absolute when perfected, and the purpose of an invasion nowhere appears to be made an excuse for it. According to the defendant Alger's own account of his writing his book, he procured Gilmore's and others at the beginning, and wrote important parte of 'his with Gilmore's constantly open before him. Still the use made of other parts than the second and third chapters of Gilmore's book would not indicate as matter of fact a material appropriation of his writing. But so much of thA ideas, language, and mod,e of expression 'Qf Gilmore in these chapters is carried into the defendant's book as to show that Alger did not stop with, the use of Gilmore's book for information only, but appropriated parts of it to making up his own. This, to the decision of supreme <'.Qurt in OaUaghan v.Myer8,128 D.· ;S. 617, 9 Sup. Ct. Rep. 177, as well as other authorities before ,mentioned, appears to amount to infringement of the exclusive privilege held out by ,the copyright. Some of the material from Gilmore's bqok so by Alger had previously been u!jed by others, without right, ,and wltS taken,l;>y him from their works. TI,at he found.it there issorpewhat relied upon as a ground for considering it public property. These acts of others would not, however, remove the protection of the copyright, nor furnish any excuse for him. Dponsllch consideration, profits of this inthe defendants appear to be liable to account for fringement. The extent of the liability can only be determined by a reference to a master for that purpose. No injunction is understood to be asked for now. Let an order overruling the motion, and a decree for an account of ,profits of infringement, with costs, be entered.
THE RIO GRANDE.
THE RIO GRANDE and AND
(District UOU'l't, S. D. New York. May 6,1889.)
A tug, in towing a sailing vessel out of a slip by a hawser from beblnd a covered pier is bound to see what vessels may be approaching, and to give the required signal before proceeding to cross the latter's course, eVl'n though she may have a right to clear before being shut in by the latter for a considerable period. ,The approaching vessel is bound to stop and back as soon as the intent of the other to cross is perceived. '
SLIPS-TOWING VESSEL OUT OF SLIP.
FEDERAL REPORTER, vol. 38.
AND BACltfNG-'-INSPECT()1tS' RULEt'!.
2. SA ME,-SIGN'ALS....:&.rOl'PING
The tug D, tQOki the. bark P.upOti.:a hawser to tow her out of the slip between pierfj 19 and, 20 East river, pr.evaratory to gl;lttiP.g along-side to tow her ,throu&,h Hell Gate. 'At the same iime the' steam'er R. G. was coming up the East river against the-slack ebb. to land across piers 19 and 20. The D., in fl'0ing out ,of did not give, the signal two whistle.s required by the Inspectors' ·rules, when the steltmer was Ileen approaching. but contInued straight 'across her course, till the steamer struck the P. The steamer was proceeding slowly, aided by a tug. The pilot of the steamer's tug, as soon 8S he saw the coming ,out of the slip, gave thellteamer the order to reverse. which was',obeyed. Held, both liable,-the D. for not giving the reo quired signal;' the steamer for delay in reversing after the danger was apparent; whether tbedelaywas from want of lookout, delaying-iving the order of reversal or in communicating with, the engineer, the lIeJIs being out of ,
In Admiralty, Libel 'for collision. Goodrich, 'Dead'f} Gdodt'ich, for libelants. Butler, SiJiJJ;rniln &: Hubbard and Wm. Mynderse, for the Rio Giande. Carpenter JcMosher, for the'Demarest. BROWN, J. At about ltA. M. of December lB, 1S88, Bsthe steamei' Rio Grande, up' the Easi rh'er in the was apcame in collision with the brig Pickerproaching hersl1p at i,rtg; abollt300 feet offpikl!y' doing the latter consider!lble damage, for 'which the above was' Pickering was in tow of the. tug of about fathoms, attiteheqto the Pickering's 'Demarest, on a 'stern, by which sheMd just been pulled out of her slip stern first, preparatoryto beirig towed up the river through ,Hell Gate·. Pier 1'9 is6overed·bY-1i sq.ed; whichobstrncted theview to the southwttrd. ,Before reaching' the, mouth'ofthe slipithetug gave one long blast:of her whistle. A:fter ge'tting out oOhe slip, the Rio Grande was 'observed near mid-river;-ofHhe ..Street ferry, approaching the 'slip 'betvVeen piers HJ arid 20; ;aided by the tug Jewett:·· The -design of the DeDiarest was to 'pull the' brig 'it: few' hundred feet :S'traight out' into the river, across the course of the Rio Grande. She gave no signal of two whistles, nor any other signal than the long blast before leaving the slip. Upon the proof, I am satisfied that the mode adopted by the Demarest of taking the brig out by lines attached to the stern was not the best; and that a vessel likefithe ,Pic#:e:ring could be more expeditiously handled by a hawser attached to the bow, and carried thence to the stern, Cflst off as soon as the brig was out, and there attached by a or nearly out, of the slip. Had the latter mode been adopted, the brig could l}ave,been more quickly headed up river, and the Demarest have got along-side nearer to the New York shore, and out of the way of the Rio' Grande. lridependentlyof this-consideration, however, I think the Demarest JVas t() blame for undertaking to cross the course, of Rio ,1.,G,fandewithoutgiv,iag whistles, which the inspectors' rUles require. Theblast .wasi'n no sense anequivalent.. It gave no ;1Ii'd,ication tow behind tug moving out of the slipi,lnder a whjstle wouldnotllliturally, ,attract any oontinued attention from the Rio Grande, or the Jewett. The requiredsigul,llof two whistles .'
, THE RIO GRANDE.
89. ThepilotoftheDemarest no the. Grande's course before the latter would reach the He miscalculated either the distance of the Rio Grande, or the rapidity of her approach. lie had no right to expect the Rio Grande or the Jewett, to stop and back to let the Pickering pass them', when he had not given them the signal of two whistles to indicate his intention to cross their course. Under the circumstances, I think he should also have given the dlmger-signal ashe emerged from the slip. There was considerable bustle and stir upon pier 19. It' was the usual landing place of the Rio Grande; and if the pilot of the Demarest did not know that the Rio Grapde was approaching before he got out oithe slip, he probably surmisedit;s.nd he knew it as soon as he got outside of pier 19. I ,am not to hold that under the circumstances the Demarest was bound to bllck and wait in the slip simply because the Rio Grande was approaching it.. The usual mode of the Rio Grande's landing was first to cover the entire slip from pier 19 to pier 20, thereby preventing for a considerable time any going in orout, uutil she had swung into her berth in the slip.' '(Jnder such circumstances, I think a ,vessel on the point of leaving slip has a right to go out, and that the incoming vessel has no controlling right to shut her in for a considerable titue, but should wait 10Ilg enough to let her clear, if seasonably app.rised of her intention. The rulE¥! starboard hand and the right of way do not apply in such circ,umstances. But the Demarest was bound to the positions, of any incoming vessels before leaving the slip. and to give them tixPely of her intention by the proper signals. For the neglect of duties, which directly contributed to the collision, she must beheld to blame. 2., As respects the Rio Grande, the is whether she reversed her engines as soon as the brig was seen, or ought to have backing out of the slip. It was her duty under old rule 19 to backat once, because the situation was 011e of manifest danger. The testimony of the pilot of the and of the first mate of the Rio Grande is that she did. The engineer estimates that she was backing a minute and a half, and got over a hundred turns backward; but all the witnesses in behalf of the Rio Grande agree that she was not moving at a speed of over a couple of knots j and, had she made any such number of turns backwards, or been backing for a minute, it is not credible that the ship would not have been moving astern in the water before ad vancing her length of 300 feet. The testimony leaves no doubt that the Rio Grande was much the more than 300 feet below the point of collision at the time brig, emerging from the slip, became plainly visible, and when her intent tocrosB,the Rio Grande's bows was clear. lroust regard the engineer's testimony 1 therefore, as a mere random estimate, not ,to, be relied of the R,io Grande testifies that he gave the verbal order on. The to reverse .soon as it W/lS through the first mate from the pilot of the that it was obey'ed immediately; that he tu.rned and saw the at that time well clear of the dock, coming, his per the Rio Grllnde's bow, and about 25 feet
would be "able t9
ahead ofhim. The Rio Grande's engines, just before the order tb reverse, were at rest, so that there was nothing to prevent the engines working astern as soon as the order was given. Several other witnesses on the part of the libelant and the Demarest confirm this statement of the master as to the closeness of the Rio Grande when she began backing. The weight of testimony is to the effect that the place of collision was not much, if any, below the line· of the north side of pier 19. The tide was slack, the current slight. The Demarest was pulling somewhat up stream. The brig went very nearly straight across, and left the slip some 25 feet above its lower line in passing the scow. There is considerable difference in the testimony as to how far the Rio Grande was be'low the line of pier 19 when the brig emerged from the slip. The Demarest's witnesses, and some others, say that shewas off Wall street, and that she had approached from a point about midway between the WallStreet ferry-houses in New York and Brooklyn, where the Jewett had taken hold of her a few minutes before. If she was off Wall street when the Demarest came out of the. slip, a glance at the chart will show that she must have been then from' 500 to 600 feet distant from the point of collision, and not more than 100 feet nearer when the stern of the brig, out in tow on a hawser, ought to have been seen. The pilot of the Jewett, moreover, says that when he saw the brig he was coming up stream,and was about abreast of pier 18. That was 250 feet below the brig. The first officer of the Rio Grande, who gave his own hawser to the Jewett. says it was of 30 fathoms length. This, with the length o;f the Jewett, ,,,ould make the 'Rio Grande nearly 500 below the line of collision at the time when the stern of the brig became visible; or, if the hawser was only half what the 1llate puts it"the distance would be some 400 feet. The estimate by the master of the Rio Grande of the distance of the place of collision from the line of the docks is from 30Q to 400 feet. That estimate I think' the most trustv. From one to two the brig's stern was minutes must therefore have elapsed from the visible 'coming out of the slip until the collision. The Rio Grande was moving slowly, probably not over two to three knots; and, as the testimony above referred to establishes the fact that the engines were not backing until the Rio Grand.e was less than 100 feet from the brig, I find it impossible to avoid the conclusion, tqat a considerable interval elapsed after danger from the brig was plainly visible before the engines were the previous slow speed of the Rio Grande, and the reversed; and comparatively slighi' incision of the wound in the brig, I am satisfied had the reversal been made with reasonable promptness; the collisionwouldhave been avoided; and for this reason the Rio Grande must also be held to blame. Whether the delay in backing arose from inattention of the pilot of the Jewett, or of the first officer of the Rio Grande, who was forward, but engaged in other duties, (as appears from his expression of "first seeing the brig on looking up on the signal from the ;Jewett,") or from delay on the part of the Jewett in ordering the engines 'reversed, or from delay ill' transmitting the order verbally, the bellwires being out of order, it does hot seem necessary to decide. It is suf-
ficient to charge the Rio Grande with blame that there was reasonable time, space, and opportunity for her to avoid the collision by backing after the brig ought to have been seen coming out of the slip, and after her intent was clear. The OatskUl, 38 Fed. Rep. 367; The Columbia, 23 Blatchf. 268, 25 Fed. Rep. 844; The Seuff, 32 Fed. Rep. 237; The Non PO'eille, 33 Fed. Rep. 524, 526. The libelant is entitled to a decree against both vessels, with costs.
THE SWITZERLAND. l LA GASCOGNE. COMPAGm GENERALETRANSATLANTIQUE
UEBERWE(}, Master, etc., ",.COMPAGNIE GENERALE 'fRANSATLANTIQUE.
(Di8trict Oourt, E. D. New York. May 6, 188lt)
CoLLISION-BlllTWEEN STEAMERS-OVERTAKING VESSELS.
The SwitzerJandwas going down the bay of New York at the rate of 9 knots an hour. Tb steam-ship La Gaseogne, going down at the rate of 16 knots. had overtaken the Switzerland. and was dra",ing ahead ,.on. her po.rt side, when the vessels came in collision, the bow of the Switzerland striking the starboard q'Qarter of the Gascogne.Oross-libels were filed for the resulting damage. the Gascogne contending that the collision was due to carelessness on the partqf the wheelsman of the Switzerland in allowing her to swing to port as the Gascogne was going by; the Switzerland claiming that the Gliscogne attempted to cross her bows under a port helm when the .distance between the vessels was too small to permit of such a maneuver. .on conflicting evidence. the cQurt fonnd that· the collision was by a iiwing to port on the part of the Switzerland.-which was carrying a port'helm in the strong north-west wind. and which would so swing under such eir·cnmstances by momentary carelessness on the part of the wheelsman.-and therefore held. that the fault for the collision lay with the Switzerland in failing to hold her course.
In Admiralty. Cross-libels for damages by collision. Coudert Bro8., for the Gascogne. . Biddle & Ward, for the Switzerland. BENEDICT, J. These are cross-actions arising out of a collision which .occurred on the 21st day of January, 1888, in the harbor' of New York, not far below the statue of liberty, between the steam-ship Switzerland and the steam-ship La Gascogne. two passenger steamers, at the 'time bound out of the port ofNe'IV York on a voyage to sea. The Gascogne . was the faster vessel, and, having come up with the Switzerland, wa.s passing her on her port side at a distance estimated by various witnesses :at 150 to 300 feet. The bow of the Gascogne had drawn ahea.d, of the
Reported by Edward G. Benedict, Esq., of the New York bal