maintain that they do not infringe. There is no reason to dispute their good. faith in this regard. Their process is covered by a parent and their experts are confident that they do not use the Stevens process. This important question ought not to be determined on affidavits. The present aspect may be changed when the ex pnrte opinions of the affiants have passed through the alem.bie of a trial and have. thus been distilled and purified. Many theories now advanced may not be able to stand the test of cross-examination. It is sufficient that the question of infringement .should not be determined upon affidavits in a case where no serious injury will be done by postponing the decision until the final hearing. Fire Hose Mnnuj'u Co. v. Callahan Co., 41 Fed. Rep. 50; Carey v. Miller, 34 Fed. Rep.392; New York Grape Sugar Co. v.American Grape Suqar Co·· 20 Blatchf. 386, 10 Fed. Rep. 835. The motions are denied.
THE BARRACOUTA. 1 UNITlllD STATES V. THE BARRACOUTA.
Oourt,E. D. New York. April 9, 1890.)
CuSTOMS DUTIES-INCOMING VESSELS-OBSTRUQTING BOARDING OI!'PIOEB.
Where it was proved that the steam-ship B., on entering the Bay of New York, was signaled by the revenue cutter to slacken her speed, in order that a boarding officer might be put aboar.d Of her, but that the B. did not slacken her speed, but continued to increase the .distance between herself and the cutter, until the latter sheered of!, and that duripg this time the master of the B. was on the bridge, it was held, on proceedings brought against the B. by the government, under sections 3068, 3088, Rev. St., that the action of the B. was a hindering and obstruction to the boarding officer, witl,lin the meaning of the statute, and that the vessel should be fined $250.
In Admiralty. Jesse Johnson, U. S. Dist. Atty., for libelant. Wing, Shoudy &; Putnam and a. a. Burlingham, for claimant. BENEDICT, J. Thi$ .is a proceeding against the steam-ship Barracouta, taken under the provisions of law contained in sections 3068 and 3088 of the Revised Statutes. In order to maintain the action it is necessary for the governrpent to show that the master of the Barracouta, on the day of her arrival in the Port of New in the rponth of September last, obstructed or hindered, or intentionally caused an obstruction or hindrance to, the custom-house officer in his effort to board the sream-ship for the purpose of carrying into effect the revenue laws of the United States. In support of the prosecution the government has proved that on the day in question the revenue officers were on board of the revenue cutter in the lower bay for the purpose of boarding incoming vessels; the Barracouta, then moving up the bay, being one of
JReported by Edward G.Benedict, Esq., of the New York bar.
them. In order to enable the revenue officer to board the Barracouta, it Wad necessary for her to slacken her speed, and she was signaled by the cutter to do so. The cutter was at this time proceeding towards the Bar.racouta, for the purpose of putting the officer on board, and her character and mission was made evident to 'those on board the Barracouta. The Barracouta, instead of heeding the signal from the cuttet, kept up her speed, and, although repeatedly signaled from the cutter, continued to increase the distance hetween herself and the cutter. Finally the cutter, after having followed the steam-ship some fiye minutes without observing any slackening of the steam-ship's speed, abondoned the' chase, and turned back to put officers on board other steam-ships below. These facts make a case of hindering and obstruction to the of the statute. The itatute,how. boarding officer, within the ever, is confined by its terms to the master of the vessel. AccO'rdingly it became necessary for the government to make it appear that the master of the Barracouta was in control of her movements at the time when she steamed away from the cutter. In behalf of the government two witnesses are produced from the cutter, who positively testify that at the time the Barracouta was steaming away from the cutter they saw the master of the Barracouta on the bridge of the steamer, looking at the cutter as she was pursuing. At this time the pilot·, the third officer, and a quartermaster were on the bridge of the Barracouta, and the case turns upon the question whether the master also was there, The pilot is produced as a witness for the steamer. He testifies that he thinks the master was net on the bridge at the time; but his manner on the stand was not assuring, and his testimony furnishes little satisfactory evidence upon the point in issue. 'fhe deposition of the master was also read in behalf of the steamer. lie testifies that he went below to' a water-closet, and remained there some 15 minutes after the steamer passed the Narrows; and he evidently desires to afford ground for an inference that he was below at the time when the cutter was in pursuit. But the master nowhere states that he was below at the time of the cutter's' pursuit, and his deposition when examined discloses facts which point' to the conclusion that he did not leave the bridge to go to the closet until' after the eutter had abandoned the chase. Moreover, the master, when afterwards charged by the commander of the cutter with having steamed away from the cutter,made no denial of the charge, but said nothing, leaving it to the pilot to assert that the master was not on the bridge. Furthermore, neither the third officer nor the quartermaster, who were on the bridge, are called as witnesses, nor is the absence of their testimony accounted for. This state of the testimony leaves the decided weight of the evidence in favor of the assertion of the government that the master of the Barracouta was on the bridge of his steamer at the time when she steamed away from the cutter. The master, if upon the bridge, was responsible for the movements of his vessel, and his refusal to permit the officer to board her renders his steamer 'liable under the statute. Let the steamer be condemned to pay the sum of $250, with costs. v.42F.no.2-11
FEDERAL REPonTER, vol.
et al. v.
(OllrlmitOourt, E. D. Louumna. April, 18110.)
When a obarter-party provides that, for supplies furnished on the order of the master;·tbeobarterers shan have a draft or obligation of the master and a lien on tbe and. neoes8SttlOupplies are furnisbed ,by tbe obartererson tbe order of the Dlaster and the of the vessel, the have a lien on the vessel, botb.l111dertbe general maritime law and theeontract of charter.
a judiciaioonoession that the vessel is without·liability.
!rhe iJ;l,stitution of an actiqn in personl1.m "gainst tbe agents of the vessel is not
" AdIlliralty, rule 51 providelltbat, when the answer alleges new facts, shan be 'cor,sidere'a as demed, and no replioation, sllall be allowed. Where tlie obligation sued/liD was entered into by the master, and the answer alleges that it is governed of· payable, tbat thereunder it is void unless spiiellallyautborized by tbe owners, and that "no suoh autbority was obt.alned, or eVEin._Skled for," Olaima,ut.lIcannot object to the. introduction of the Ch,arter-party tq,PJlQvesuohautborizatl9.n; erenthough no suoh issue was raised by the libel.
from for libe1!¥1ts. Jarn48 Mc(lonn(JU, "foTQlaiD;l.ants., P.A;RD:QJll,J. The libellloDts,in theiJ;libeland amended libel, propound. as foUPiwll:: "l'pe UbeJl\nt. ,Is the, owner 1:t1 purchase of ,an obligation for eight hundred
apd pepee by tbe master of said b,e1llg m foreIgn pprt and destmed on a voyage to Liverpool, at Newport News, June 6, 1888, and payable to the order of Barber'&Co;; five days after the arrival ofsaid vessel at the port of Liver- " .pObl"and byliaid firm indQrsed in blank, 8S' by said obligation marked · Exhibit A,' dIed herewith as part';ofhislibel; that the said vessel, having. by: xua,anS.,9f,;tpe, in said o.bligation,s, been fi, for sea. proceeded tq tSle port of Liverpool, where she in safl'lty; that the afQresai4 Iwr;n ilas not heeD" paid. in oJ: in part, to the libelant,or to" any one alB'e em,power'ed to receive the same in his behalf,although payment has oftEmbeen'requested; the said steam.ship is lying within the port of New Orleamh La.'. and withhi the jllrisdiotion of this honorable court; that· the moneyadvariced on the obligation 'slled on was absolutely necessary for to,prosecllteAervoyllge. and, the master had Q.O other means of
to the libel, is as follows: (Form A.)
"S03-.2--8.June6.1888. "Five:days after arrival, or upon collection of, tbe freight, if sooner made. S. ullder my command. at the port of Liverpool. or any ,which her voyage may terr.ninate. 1 promise to pay to tb6 order of the sum of 80Spo\IllPS 2 8, in approved bankers' demand blllsp1l, London,for value received. for necessary disbursements owed byinYVllssi:l1 at tihisport, far the payment of which I hereby pledge my vessel and ber freight. and I hereb)' assign to the legal holder' of this obligation all