V. BOSTON WOVEN HOSE CO.
is fatal, and yet in different counts he may vary the terms of the charge, producing the same result as if in the origillalaverment he had been allowed to make the charge in ·the alternativtl.These rules, which the courts do not feel themselves at liberty to depart from, seem to savor of scholastic subtlety and over-refinement.. They probably owe their origin to a revolt of the humanity and sense of justice of the courts against the barbarism of a Draconian code, upon nearly every page of which the scaffold could be seen, and which punished with the highest penalties of the law trivial, and almost venial, offenses. There seems to be now no reason, when such cruel laws no longer prevail, either in England or this country, that these ancient precedents should be adhered to. What is the true via media between stubborn adherence to ancient rules and a rash spirit of innovation it is not always easy to discover or define, but if the rules suggested in the foregoing opinion, to the effect that while salutary and established rules or principles should in general be adhered to, yet the court in particular cases, in its discretion, may relax or introduce exceptions to the rule, where substantial justice manifestly requires it, be followed, perhaps the practical administration of the criminal law will in some respects cease to deserve the reproaches of uncertainty and inefficiency which are now so freely made against it.
V. BOSTON \VOVEN HOSE
(Oircuit Court, D. jlfassachusctts. July 12, 1889.)
A preliminary injunction against the infringement of a patent will be denied where plaintiff does not show a prior adjudication sustaining the validity of the patent. or public acquiescence on which a presumption of validity IDay be based, and where it does not clearly appear that there is an infringement.
Bill to restrain infringement of patent.
Clarke & Raymond, for complainants. Dav,id Hall Rice, for defendant.
COLT, J. The complainants are the owners of two patents, numbered, respectively, 197,716 and 197,717, dated December 4,1877, granted to J. A. Caldwell, the first being for an improved strap for securing hose to the coupling, and the second for an implement for fastening such hosestraps. The defendant is charged with infringement of these patents. The present hearing is upon a motion for a preliminary injunction. The first ground of defense is that the plaintiffs have shown neither prior adjudication sustaining the validity of the patents, nor public acquiescence upon which a presumption of validity may be based, and that, therefore, whatever the decision of the court may be upon final hearing on the merits, the present motion, under a well-settled rule oflaw, must be denied. I think this point is well taken. It is admitted that there has been no prior adjudication upholding the validity of these patents. As to public acquiescence the evidence goes to prove that this strap and implement have never been put upon the market. The reason assigned by the complainants for not making and selling the Caldwell strap, namely, that it is more costly than the Adlan and Earle straps, does not affect the question of public acquiescence. In the absence of the manufacture and sale of the patented article it can hardly be said that there has been public acquiescence. If nobody had use for the article during the time of the alleged acquiescence, or its merits were prized so low that nobody cared to adopt it, no lapse of time has any tendency to raise a presump-
tion that the patent is valid. Walk. Pat. § 668. But further than this I have some doubt on the question of infringement. As to the tool patent, I have serious doubt whether the defendant infringes. The claim of the patent specifically recites that the ,grooves or notches in the jaws of the pivoted levers shall be located out of line with each other, and this feature seems to be necessary for the practical working of the tool when applied to fastening a Caldwell hose-strap. In the Hudson or alleged infringing tool we find, in place of notches out of line, tWQ holes punched in the jaws in alignment with each other. In the case of t:le strap patent it must be admitted that the question of infringement is closer. The specification states that the band is made of self-annealed wire, of such length that the enlarged ends will extend beyond and overlap each other, so as to admit of their being twisted by turning the implement, whereby they are locked or hooked together, and the portion of the hose under the band is thus forced into the corrugations of the COli pIing, and securely held. A wire band, provided with enlarged ends, is one of the main features of the claim of the patent. The defendant's hose-band does not have the enlargement shown in the Caldwell band, though I am aware that the language of the specification is very broad on this point. The defendant uses hooks at the end of the band, instead of the Caldwell enlargements. I do not think the defendant's band, in spite of the opposite contention, can be practically applied with the Caldwell tool. The manner of operation and the' purpose of the defimdant's hooks cannot be said to be the same as the Caldwell enlargements. Construing these patents in the light of the prior state of the art, I am not free from dou bt on the question of infringement. Upon all the facts of this case, as presented in the papers before me, I am satisfied that; the motion for a preliminary injunotion should be denied.
THE PIETRO G.
(District Oourt, S. .fl. New York. June 29, 1889.)
SIlIPPrNG-BILJ, OF LADING-DEMURRAGE.
Upon a bill of lading issued by, a chartered vessel, making the goods deliverable to order, the bill of lading itself is tbe only contract between the ship and a bona fide purchaser and indorsee, who accepts the goods under the bill of lading, without knowledge or notice of the cbarter; and if be detains tbe sbip in receiving the goods. and the bill of lading specifies no rate of demurrage, nor refers to the charter,' the ship can recover only according to the value of bel' use, and not an amount' in excess thereof' specified in the charter, though the charterer was the shipper of the goods.
The cbarterer of the bark P. G. loaded her partly with his own goods, and took from the master a; bill of lading, deliverable to order, making no ", tion of the rate of demurrage". nor ,referring to the charter. The charter specified demurrage at the rate of£12 per day. The shipper having soldtbe goods and indorsed the bill of lading, the purcbaser detamed tbe ship on delivery. On suit for demurrage, held; tbat the bill of lading Was the only contract enforceable between the ship al)d the consignee, and that the latter was not liable to charter rates, of demurrage of which he had no knowledge, but only for the value of the use of the vessel during her detention.
-THJll fIETRO G.
: In Admiralty. Libel for recovery ?f demurrage in delivering cargo. Wing, Shoudy &: PtaMm, for libelant. D. Ullo, for the Pietro G. . BROWN, J. The bark Pietro G. ,having been found entitled, on the uUhe cause, (38 Fed. Rep. 148,) to demurrage for delay of the consignee in ,not takiu,5 his goods "as fast as the ship could deliver," the parties have/>ubmitted to the court the question of the rate of demurrage to be allowed, upon a stipulation as to the facts, to avoid the expense of a reference. It is agreed in substance that the commissioner would find the value of the use of the vessel to be $40 per day, while the charter rate is £12 per day, or about $59. This court has held that in the assessment of damages in collision cases the rates of demurrage stipulated in charter-parties were not competent evidence as against third persons, being often somewhat in the nature of a penalty, and not always designed to fix exactly the value of the use of the vessel. The James A. Dumont, 34 Fed. Rep. 428. This fact is illustrated in the case of The Belgenland, 36 Fed. Rep. 504. That vessel was chartered to take a cargo of phosphates at certain rates, with six pence per ton per day demurrage; and, having lost the charter through a collision, and freights having fallen, she was rechartered for a precisely similar voyage at lower rates of freight, but with demurrage at eight pence per ton per day, or one-third higher than before; i. e., when freights were high the owner could afford to take a less rate of demurrage; when freights were low, he would demand a higher rate of demurrage, to secure promptness in the delivery of the ship, so as to get the earliest advantage of any rise in freights. The Pietro G. was chartered to Kemp & Co. The cargo was shipped to different consignees, partly by Kemp & Co., partly by others. The bills of lading delivered to the other shippers than the charterers were made subject to "all of the provisions as per charter-party;" and such a clause would bind the consignee receiving the goods under the bill of lading to pay the charter rates of demurrage. But the bill oflading for the goods in question, shipped by Kemp & Co., and deliverable to order, did not contain this provision in regard to demurrage. In the margin was stated, "Cargo to be discharged as fast as ship can deliver," and nothing more. The charter contract with Kemp & Co. provided that the ship should have an "absolute lien on the cargo for demurrage." But SChllltz, the purchaser from Kemp & Co., and the indorsee of the bill of lading, had no knowledge that the vessel was chartered, nor any notice of the charter-party, or of the rate of demurrage therein mentioned. Upon these facts I am of opinion that the ship cannot recover the charter rates so far as they are in excess of the value of the use of the vessel, as against the indorsee of the bill of lading. The indorsee and purchaser of the goods has l\. right to rely on the bill of lading as the contract between him and the ship, and as the only contract, so far as respects demurrage. Where the bill oflading makes' no reference to any charter, and the indorsee has no notice of it, I tb,ink the bill of lading is the only contract which the ship can legally set up against him, whether she sues
FEDERAL' R:EPORTERj vol. 39.
for demurr-agein'personam orin rem. -Bradstreet v. Hetan, 2 Blatchf. 116; 112 Sticks of Timber, 8 Ben. 214; The Querini Stamphalia, 19 Fed. Rep. 123; Leduc v. Ward, L. R. 20 Q. B. Div. 479, 483. It is not just that the indorsee should be held to the terms of a charter of which he has no nothe charferer, the charter would no doubt tice. As between the ship control. The Chadwicke, 29 Fed. Rep. 521. Justice requires that the master of the ship, when he signs bills of lading presented by the charterer, making the goods deliverable to order, should insert either the charter rates of demurrage, or Some clause adopting the charter's provisions, as in the other bills of lading in this case, if he would enforce, as against bona fide iudorsees, the rates contracted by the charter. There is the more reason for this rule in the present case, because the demurrage arose upon an additional special contract made between the master and the indorsee that the vessel should go to the Erie basin to deliver his consignment after the rest of the goods were discharged. The new contract was doubtless subject to the general terms of the bill of lading, but it is irrational to conclude that it was made with any reference to the high rates of demurrage qamed in the charter, of which the indorsee had no knowledge. The charter rates were no part of the contract, either in fact or by legal implication. I allow, therefore, demurrage at the rate of $40 per day, the value of the use of the vessel, for nine days, with i11terest. SERVISS v. THE CHATTAHOOCHEE.
(Oircuit Oourt, E. D. New York.
OF VESSEL-NEGLIGENCE OF Sl'EVEDORE.
A stevedore, wbo bad finished loading coal on a steam-ship froYi'L a canal- boat along-side, took the cand-boat's line to a steam winch on the steamer to draw the canal-boat astern of the steamer. The latter's propeller was in motion, and the stevedore gave no orders to have it stopped, nor did he direct the men on the canal boat to keep her away by poles. The propeller drew in the canal-boat, cut a hole in h-er, and sank her The stevedore was an employe of the steamer. Held, that when the stevedore undertook to move the canal-boat up the slip he assumed the reponsibility of her navigation, at least until she was fully clear of the steamer's side, and for his negligence the steamer was liable. Affirming 37 Fed. Rep. 153.
InAdmiralty. On appeaIfrom the district court,37 Fed. Rep. 153. Libel by Deborah A. Serviss against the steam-ship Chattahoochee, for damages by sinking libelant's canal-boat. From a decree in favor of libelant, with an order 'of reference to ascertain the amount of damage, claimant appeals. Rice & Bijur, for appellant. Hyland & Zabriskie, for appellee. Justice. -I conour in the views of the district court in regard to this case. 37 Fed. Rep. 153. Let a decree be entered for the libelant for $581.22, with interest from June 12, 1888, and for the costs of the district court, taxed at $103, and for the costs of this court, to be taxed.