WELSH V. THE NORTH CAMBRIA.
granted respecting these claims. The theory of the plaintiff that the pump barrel of the patent means the working pump barrel, and that the Hyde barrel is like the plaintiff's because it has a bore whose working length for the bucket is not greater than its diameter, I cannot accept, because it is contrary to the plain meaning of the words, and inconsistent with the language of the specification. Nothing is said in the specification about the working length of the barrel not being greater than the diameter thereof; on the contrary, the specification states that the barrel is made short, so that it may be successfully lined, and for general convenience on ship-board. The construction contended for would be doing violence, not only to the ordinary meaning of the language used, but to the plain intention of the patentees. The fifth claim remains. The feature of the pump covered by this claim consists of a bucket externally dome-shaped; that is, having the exterior or upper surface of the annular part turned down outwardly, so as to bring the outer edge and packing at or near the bottom of the bucket. By this arrangement it is said the pump may be made very short, and the bearing of the bucket or packing is in the best position for working evenly. The proceedings in the patent-office, on the taking out of the original patent, seem to limit this claim to a bucket which dome-shaped. By "dome-shaped" is meant something having the form' of an inverted cup or half glohe. The defendant's hucket is not domeshaped, and in some other particulars it differs from the Russell bU:lket. These differences raise. grave doubts on the question of infringement. Upon the facts presented in this case I am satisfied the present motion should be denied.
(District Court, E. D. Pennsylvania. June 25, 1889.)
In the absence of a statute providing a maritime lien for damages caused by the personal injuries and death of one engaged in loading a vessel, a libel in admiralty to recover damages for such injuries ana loss cannot be sustained. The Harrisburg, 119 U. S. 199, 7 Sup. Ct. Rep. 140, followed.
In Admiralty. On motion to dismiss lihel. Action by Bridget Welsh, widow of Peter Welsh, on her own beha,1f and that of her minor children, Mary \Velsh and Bartholomew W"dih, against the steam-ship North Cambria, for damages resulting from the injury and loss by death of Peter Welsh while unloading the cargo of the vessel. Alfred Driver and J. Warren Coulston, for libelants. E. B. Conve-(8, for respondents. consent.
J. The question of jurisdiction is raised on this motion by That the libel cannot be sustained independently of statutory
provision, is settled by The Harrisburg, 119 U. S. 199, 7 Sup. Ct. Rep. 140. That the Pennsylvania statute, on which the case is put, does not create an admiralty lien, and thus authorize the seizure, seems entirely clear. There is nothing whatever in the statute indicative of a purpose to create such a lien, and if there was I would hold the statute to be inoperative in this respect. The states have no power, I believe, to interfere with the admiralty system of laws; they can add nothing to it, nor take anything from it. The subject lies within the exclusive domain of congress. It is true that the supreme court has held that, as respects pilotage and a few other subjects, the states may exercise powers vested in the federal government until the latter assumes the exercise of its authority. The disfavor, however, with which this (apparently illogical) doctrine-born, doubtless, of the excessive tenderness which formerly existed respecting "state rights "-is regarded to-day, justifies a very confident belief that it will not be extended beyond the subjects to WhICh it has been applied. To this doctrine must be ascribed the decision in The Lottawanna,:21 Wall. 580, that liens created by state statute for the repairs of vessels, etc., in home ports, within the state, may be enforced by admiralty courts. As this court held, however, in TheE. A. Barlwrd, 2 Fed. Rep. 712, such statutes do not create an admiralty lien, or engraft any new provision upon the system of admiralty laws. The court in such case has jurisd!ction. as the debt arises from an admiralty contract; and The Lottawanna decides no more than that the state may make this debt a lien for the purpose of securing and regulating distribution between its own in the absence of provision respecting it by'congress. Even this is acknowledged to be anomalous, and is put upon "long usage," rather than any well-defined principle. The views of this court on the subject generally are stated in The E. A. Barnard, above cited. I will not repeat them. They are as applicable here as they were there. The decision of the district courts respecting the subject are not harmonious. In The Sylvan Glen. 9 Fed. Rep. 335, and The Manhasset, 18 Fed. Rep. 918, the state statutes were denied effect in the admiralty. This view is also supported by the judgment in The Vera Cruz, L. R. 10 App. Cas. 59. In other instances the question has been decided differenny. It has been so fully discussed in the cases cited that I will not enlmoge upon it. Libel dismissed.
THE COLUMBIA.! UNITED STATES
(DiBtrict Court, E. D. New York.
SmpPING-VIOLATION OF PASSENGER ACT.
On the evidence in this case the court found that the steam-boat Columbia, during an excursion trip from New York to Rockaway, on Sunday. July 17. 1888, carried 777 passengers in excess of the number allowed her by law; but. as the libel only charged an excess of 677, and limited the demand to $7,108, and no application was made to amend the libel, held, that the steam-boat was liable to a penalty of $10.50 for each of 677 passengers carried. or $7,108.
In Admiralty. Mark D. Wilber, U. S. Dist. Atty., for libelant. Blair &; Rudd, for claimant. BENEDICT, J. This is a proceeding on the part of the United States to enforce a lien upon the steam-boat Columbia for carrying passengers in excess of the number allowed by law, on Sunday, July 17,1888. On that day the Columbia made an excursion trip from New York to Rockaway, starting from Twenty-Second street, New York city, stopping at Tenth street, then at pier 6 North river, in New York city, then at Jewell's wharf Brooklyn, thence proceeding to Rockaway and return. By law she was forbidden to carry a greater number of passengers than 3,000. The charge in the libel is that on the occasion in question she carried 3,677. The law applicable to the case is not in dispute. The steam-boat is conceded to be liable to pay $10.50 for each passenger in excess of 3,000 proved to have been carried by her on this occasion. The only question to be decided is the question of fact whether the proofs show that the passengers on board the steam-boat on the occasion in question numbered more than 3,000. The evidence in support of the charge consists of the testimony of two passengers who were on board the Columbia on the trip described, and who testify to having counted the passengers as they left the boat upon her arrival at Rockaway. This count of passengers was made under the following circumstances: The two witnesses,-one named 'William H. Ripley, and the other, William M. Rogers,-with their families, constituting a party, were passengers on the boat. The boat, as they describe it, was terribly crowded. In fact she had a greater number of passengers than she had carried before during that season, or has carried since, so her assistant purser says. Induced by the crowded condition of the boat, these two passengers, after the boat had left Jewell's wharf, arranged between themselves to ascertain the number of passengers on board by Q:.unting the passengers when they should leave the boat on her arrival Rockaway. In pursuance of this agreement, as the passengers passed
-Reported by Edward G. Benedict, Esq., of the New York bar.