FEDERAL REPORTER,
vol. 42.
to soliciwi'S intrusted by clients with money to invest upon mortgage, (Queen v. NeWman, 8 Q. B. Div. 706; Regina v. Cooper, L. R. 2 Cr. Cas.
123,) or to attorneys at law, (State v. McLane, 43 Tex. 404,) still it is a construction placed by the supreme court of the state upon a statute of such state, and is as binding upon this court as ifthe opinion were pronounced iuan ordinary civil suit. As the prisoner di " in fact, plead guilty to embezzlement as an attorney at law, and as the court has held that such offense did fall within the statute, there has been no violation of the constitutional provision, and the petition must be denied.
HOLMES BURGLAR ALARM TEL. Co. TELEPHONE
Co. et al.
et al.
'IJ. DOMESTIC TELEGRAPH
&
(Circuit Court, D. New Jersey. April 12, 1800.) 1. PATENTS FOR INVENTIONS-LICENSE-ASSIGNMENT.
2. S.
The absence of evidence that a certain claim of letters patentwss covered by the oath of the inventor will not invalidate the claim. SAMlll-REISSUE.
A patentee can claim on a reissue whatever clearly appears to have been a part of his original invention as described or shown in his original specifications, drawings, or models.
4. BUill<..
5.
SAME-VARIANCE FROM ORIGINAL CLAIM.
6.
BAME,..,-!NFRINGEMENT.
'1. 8.
SAME-COMBINATION.
SAME-ANTICIPATION.
Such letters patent were not anticipated by the English patent to Tyer. in 1865, for an apparatus for transmitting signals indicating the p'osition of a train on a railway, nor by that to Varley in 1865, which was for a modIfication of the ordinary closed circuit system, nor by that to Mixon in 1866, which would reqUire substantial alterations to make it accomplish the results of tM Guernsey patent.
HOLMES BURGLAR ALARM TEL. CO.
v.
DOMESTIC, ETC., TEL. 00.
221
9.
SAME-FoREIGN PATENT.
The existence 01 an English patent for which letters were subsequently granted by the United States dates from the time when the great seal was attached.
In Equity. Suit to restrain infringement of letters patent, brought by the Holmes Burglar Alarm Telegraph Company and the Municipal District Telegraph Company against the Domestic Telegraph & Telephone Com pany , George W. Hubbell, Enos Runyon, F. T. Fearey, and Jabez Fearey. S. A. Duncan and L. E. Curtis, for complainants. G. G. Frelinghuysen, for defendants. WALES, J. This suit was brought to restrain the defendants from infringement of reissued letters patent No. 4,297, for improvements in electro-magnetic burglar alarms, granted March 14, 1871, to William' B. Guernsey. One of the complainants is the owner of the patent, and the other is alleged to be a licensee under it. The bill sets out the title of the Holmes Burglar Alarm Telegraph Company, and the granting of an exclusive license, for certain purposes, to the Municipal District Telegraph Company; but objection is made in the answer of the defendants that in fact no license was ever granted to the Municipal District Company, and, in consequence of the absence of joint interest and privity between the parties complainant, the bill should be dismissed on account of this misjoinder. Waiving a consideration of the question whether this objection should not have been taken by a plea in abatement, it is sufficient for the present purpose to say that the testimony of the witness, Holmes, and the written agreements in relation to the ownership and use of this patent, which are set out in the complainants' exhibits, afford satisfactory proof that a license was given to the Municipal District Company, as is alleged in the bill. The granting of a license may be proved by the acts and dealings of the parties who own, and permit others to use, the patent, without the necessity of resorting to written instruments; and it clearly appears from the proofs that prior and up to the time of bringing this suit the Municipal District Company had been treated and acknowledged as its licensee by the owner of the patent. This inference of fact is drawn from the transactions which were had between the Holmes Burglar Alarm Company and its immediate licensee, the Protective Company, which latter company transferred its license to the Municipal District Company. Admitting, as is claimed by the defendants' counsel, that the license to the Protective Company was personal only, and not transferable, and that it had not, prior to its assignment to the Municipal District Company, any right to assign its license, yet it is certain that the Holmes Burglar Alarm Company acquiesced in and ratified the assignment, and thereafter recognized the Municipal District Company as its licensee. There is no restrictive provision in any of the agreements which prevented the owner of the patent from conferring authority on the Protective Company to assign its license, and such authority may be proved without the aid of written. articles. This conclusion dispenses with the necessity of dis-
222
of the mode adopted by in presentingthe'Qbjection ofmisjoinder, which, under the technical rule of pleading, and equity rule 39, should have been taken advantage of by a plea in abatement. 'Another: which is insisted oh by the defendants' counse1'fs'that claim 2 of the original Guernsey patent, which is made daim l 40fthe reissue, is not covered 'by the oath ofthe inventor, and is therefore a.nullity, and forms no part orthe rellI patent. There is no evidence on this point, and there is equal ground for the presumption that the oath was taken as that it Was not. But isthe taking of' the oath absolutely necessary? in Whitte1rwre v. Cutter, 1 Gall. 433, Judge STORY said: HThe' taking of the oath was but a prerequisite to the granting of the patent,: and in no degree essential to its validity." , In Crompton v. , Belknap Mills; 3 Fish. Pat. Cas. 536, the defendants, as in the present case,relied upon a certified copy of the file wrapper and contents to sho.w that the oath had not been taken, but the court said: "We niot satisfied the oath Was not taken. The letters, patent recite that it Was. If< ;If<If< But suppose the oath was not taken. Would the patent be void on that account? It was held otherwise by Jndge STORY in Whittemore v. Cutter, 81tp1·a. The taking ot the oath, though it be done prior to the granting of the patent, is not a condition precedent, failing which the patent is the evidence required to be furnished to the patent-office, must fail. that the applicant verily believes he is the original and first inventor of the art, etc. lfhe take this oath, and it turns out that he was not the first inventor or-discoverer, his patent must fail. and is void. So, if he do not take it, and still he is the first inventor or discoverer, the patent will be supported." It has also been held that this is not a matter tQ be inquired into collaterally in an infringement suit. Hoe v. Kahler, 20 Blatchf. 430, 12 Fed. Rep. 111; De Florezv. Raynolds, 14 Blatchf. 505. And in Railway Regi8ter Manuf'g Co. v. North Hudson R. Co., 24 Fed. Rep. 793, the court recognized the right of an applicant's attorney to insert in a pending application amended and enlarged claims, without having them verified by the oath and signature of the patentee, provided only they relate to matter substantially shown and described in the specification. As to the oath, it was decided in Seymour v. Osborne, 11 Wall. 516, that recitals in letters patent that the required oath was taken before the Same was granted are, in the absence of fraud, conclusive evidence that it was so taken. Original letters patent No. 108,257 were issued to Guernsey, October 11, 1870, and the reissue for the same invention, No. 4,297, were granted to him on March 14, 1871. The nature and objects of the inventionare, in part, thus specified by the patentee in the reissue: "The principal object of my invention is to provide an elect7'ical apparatus which will give an alann 01' an indication either in the event of the conducting circuit being broken, 01' in the event of a new 07' sh01'ter ci1'cuit being f01Wted. To this end I employ a continuous circuit, or a circuit capable of being made continuous at will, arrang'ed with a 1'esistance or resistances so
that the current which is allowed to pass will'uot possess sufficient electromotive force to effect the alarm, bgt baving such arrangements at windows
HOLMES BURGLAR:.ALARM TEL.
co.
".DOMESTIC, ETC., TEL. CO.
223
and doors, and other. places to be guarded. as will, on any tampering therewith, short-circuit the current past or around the said resistance or resistances tp an extent sufficient to actuate the alarm. My invention thus combines the advantages" and avoids the disadvantages, ofthll two varieties of electro-magnetic alarms which are distinguished as the · closed circuit' system and the · open circuit' system. I will proceed to describe a way ofca'N'yingout my inventiun by th,e use of two separate electro-mallnets, each of which may constitute a .1'esistance to prevent the sounding of an alarm until the circuit is either made around 01' past such resistance. 01' broken. More than Qne magnet 01' resistance is not essential in carrying out the invention. as will be understoodj'rom the following explanation: Fig. 1 shows in perspective {wo electro-magnets. with separate conductors connected with a common battery,. each conductor passing through an alarm, and through suitable connecting devices, which may be located in the frames of windows, or at any desired points, in such a manner that the opening of a door or window, or the performance of. any act which it is desired to detect, will connect one conductor with the other, and avoid both electro-magnets. For this purpose the magnet of one conductor is located near the positive pole, and that of the other near the negative pole, of the battery. Fig. 2 illustrates a modification, in which one magnet may be dispensed with, and a simple resistance coil introduced at the point to be protected in such a manner that the act to be detected will close a short circuit, avoiding the resistance, and thus sounding the alarm. This more simple form of the apparatus in applicable to places where a single window, door, or other object is to be protected." Then follows a general description of the drawing: "Two magnets and two conducting wires are shown and desc1'ibed, but only one magnet or othel' electro-motor, and one conducting wire, is necessary to t!lesame effect, as will be manifest by an examination of the arrangement,and a knowledge of thlJ 'P1'inciples involved. The location, with 1'egard ta each othel', of the various membe1's or elements of the alarm, is not an essential part of the invention, and can be varied as circumstance, . dictate," "Where buta single place is to be protected, as, for example, for the vault door of a banle, the apparatus may be simplified, dispensing with one of the resistance magnets, and employing a simple resistance, R, (Fig. 2,) placed at the point to be protected, and so arranged with regard to the other members of the alarm that the opening of the door or window, or the doing of any act which the alarm is to detect, will short-circuit the conductor, by forming a connection between the wires across, or independently of, the resistance." .. "Various other modifications will readily suggest themselves for the accomplishment of the object without departing from the essential principles of the invention; the design being to obtain an alarm in which the signals shall be given by the closing or making of connection between two different conductors, or between two parts of the same conductor, essentially as is done iu the open or interrupted circuit alarms, while at the same time there is or may bea continuous circuit in the said conductor 01' conductors, which by proper contrivances may be made to give notice to the person in of said alarm of any injury, accidental or malicious, which may have happened to his instrument or its belongings." The third and fourth claims of the reissued patent are precisely identical with the first and second claims of the original patent, with the exthe italicized words, which have been inserted in the reissue, and are as follows: I
FEDERAL BEPORTEB,
vol 42. '
The C9mbination in an electro-magnetic alarm of a continuous circuit or circuits wl,th a sufficient resistance or resistances, and an alarm or alarms, when the said combination is so arranged that the severing or interrupting of the said circuits, or of either of them, shall cause the said alarm or alarms to sound, and also that the short-cil'cuitlng or di verting the course of the electrical current in said circuit or circuits around or past the said resistance or resistances shall sound an alarm, or cause an alarm to be sunnded. This when the whole arrangement is properly combined with a sufficient battery, and with 'connections' or contrivances at points to be guarded which will, upon the doing of certain acts or the happening of certain things; short-circuit the said electrical current or currents past or around the said resistance or resistances, and so give the desired alarm. "(4) In a burglar or fire alarm, the combination of an open and a closed circuit to operate substantially as set forth." The third and fourth claims of the reissue have not been enlarged, and are identically the same with the first and second claims of the original, with the exception of the italicized words in the former, which do not materially change their effect. ,The drawings accompanying both patents are the same. The specifications in the reissue are the same as in the original, excepting the italicized portions, and describe the nature and objects of the invention more clearly and plainly than is done in the latter, in order to cover any element to which, by a fair construction of the original, the patentee would have been entitled; and for this purpose a reissue has always been allowed when the patentee has, by inadvertence or mistake, omitted to make snch a description in the original. A patenteecan claim on a reissue whatever clearly appears to have been a part of his original invention as desCl'ibed or shown in his original specificahas done no more. Battin v. tions, drawings, or models; and Taggert, 17 How, 74; Gallahue v. Butterfield, 10 Blatchf. 232; Wheeler v. Reaper Co" 6 Fish. Pat. Cas. 1; Seymour v. Osborne, 11 Wall. 544; Calkinsv. Bertraud, 6 Biss. 494; RU88ellv. Dodge, 93 U. S. 460. The two prior systems referred to by the patentee were well known at the date of the patent, and had been in extensive use; but each had certain serious and recognized defects which it was the object of Guernsey's invention to obviate. The advantages and disadvantages of the old systems are thus stated' by Prof. Brackett, a witness for the complainants: '''fhl'i advantage of the open circuit system is that the apparatus cannot be disabled by connecting the two parts of the circuit together between the battery and the point protected, since such connection would sound the alarm in the same manner as opening the door or window. The disadvantage of this system is that the circuit may be cut or disconnected at any point without sounding the alarm, and this would completely disable the apparatus, since no - alarm would be given 'upon a subsequent opening of the door or window. Such a system offers no difficulty toa burglar, except as the wires leading from the battery to the protected structure be effectually concealed, which might be difficult to do. The advantage of the closed circuit system is that the line is cutting or interruption, since such an act would sound the protected alarm; and its disadvantage is that it may be completely .disabled by forming a short circuit around the point protected, since this would not sound the alarm, nor would the alarm be sounded by any subsequent opening of the door or window."
HOLHES BURGLAR ALARH TEL. CO. t7. DOMESTIC, E'l'C., TEL. CO.
225
It is thus apparent that each of these prior systems afforded sufficient protection as long as the wires or conductors remained intact, but both were fatally defective, in that they could readily be disabled by tampering with the wires; and it was the object of the Guernsey invention to protect the wires or conductors from being tampered with by any method appli.cable to either of these systems. Mr. Pope, another witness for the complainants, thus states the general nature of the invention: "Guernsey was the first, so far as I am able to ascertain from the evidence in this case, or otherwise. to combine in one and the same organization of circuits the characteristic signal instruments of both the open circuit system and the closed circnitsystem with a resistance or resistances in such a manner as to make the open circuit instrument guard against disabling the apparatus by any method applicable to the ordinary closed circnit 8ystem, and, conversely, to make the closed circuit instrument guard against disabling by any method applicable to the ordinary open circuit system." Both complainants and defendants are engaged in the business of central office protection, and, as is alleged, make use of almost identically the same form of apparatus. The defendants' apparatus consists of a battery, two principal instruments, and their accessories, conductors connecting the battery and instruments with an electrical casing inclosing a safe, a resistance, and contact springs connected with the door of the safe casing. Both instruments are included in the circuit, so that the current traverses their coils successively. One of them, designated as the "galvanometer" in the drawing, consists of a magnetized needle pivoted so as to swing freely in either direction in front of a coil through which a current passes. Its movement is limited by contact E'tops which form the terminals of a local circuit containing an alarm bell, B. The instrument is so constructed and adjusted that, when the resistance at the safe is included in thecircuit, the needle between the two stops, but, when the current is strengthened by short-circuiting the current past or around the resistance, the needle is swung by the influence of the current in the coil against the stop at the right, and an alarm is sounded on the bell, B. It thus performs the function of the ordinary open circuit instrument. In addition to this, when the circuit is broken the needle swings against the stop at the left, and rings the same bell. The other principal instru,ment, designated as a "relay" in the diagram, corresponds in all respects, in construction and mode of, operation, to the ordinary closed circuit instrument. By the intervention of two local circuits, it is made to release a drop or shutter and ring an alarm bell, 0, when the current ceases Lo flow through its coils. There are two sets of contact springs at the safe, so arranged that upon the first movement of opening the door the circuit is broken at the springs, J, J,1 at the top, and an alarm is sounded upon beth the bells, Band 0. Upon opening the door a little further, a short circuit is formed around the resistance coil, R, through the wire, G, G, and the galvanometer swings to the extreme right, and again rings its bell, B. If any attempt is made to tamper with the apparatus by cutting either of the wires leading to the safe, an alarm is sounded both upon the gal. v.42l<'.no.3-15 .
FEDERAL REPORTER.
vol. 42.,
bell. B, relay bell, OJ and, if the ,wires are short-circuited] an alarm is sounded on the galvanometer bell, B. Jt is cononpehalf of the complainahts that the defendants'apparatus , theop- , erdtion uf which is thua'described,contains the gist of the Guernsey inventhm; sinceit contains instruments having the characteristic mode of operation. of:the instrument ofthe ,two old systems referred to in, the patent, and these are combined in the same circuit with a resistance so arranged as , to instrl11I,lentl' The result of this combination is 'that ,the wires leading, to the safe are, effectually protected both from intetruption and from short-circuiting. In other words, the same result isprtJdudedby substantially the same means in defendants' apparatus as . in of the patent. 'It is conceded that the use of a galneedle, such as is used in 'the "defendants' apparatus, to open arid close a local circuit,including .an electric bell, was .well known in " the art prior to the date of the patent, and that the galvanometer was reeognizedas,an equivalent, for that purpose, of an electro-magnet and armature, such as is shown in the patent. ;It is urged by the defendants, that the: galvanometer is made to perfoml an additional function in their appa-ratus, but this factwill not relieve them from the charge of infringement;so'long as all the elements of the complainants' patent are embraced in theit,system. WiUiames v. Bnrnard, 41 Fed. Rep. 364. A careful examination of the testimony,. which displays a special knowledge of the art, united with unusual intelligence and ability, on the part of the witnesses, :leaves no: dou bt that the defendants are infringers of the, third and .fourth claims of the ,reissued patent. An elaborate review of the testimony, with references to the numerous models and diagrams contained in the exhibits, would extend this opinion to an unreasonable the circumstances of the case, is not necessary. The validity of the reissue was vigorously attacked on the ground of its alleged variances from the ·original patent, and chiefly because the latter does not contain even a suggestion of a single circuit form of apparatus; but a· comparison of the' specifications and drawings of the two patents does not sustain this objection. Fig. 2 in the drawing of each patent shows a single wire; and dfbymistake or accident, the original specification did not describe with sufficient plainness the use and application. of, thi,s wire. itwas permissible to the patentee, under the provisions of. the act of .congress relating' to reissues, to supply the omission as soon as it was disdo.;ered; and this he did within a few months after the date, of the original. The single circuit was clearly indicated in, the original, ' and by a fair construction the patent.eewould have been entitled to its use., As already shown, ,the claims in suit were, not enlarged in the rEr' issue. In faot the fourth claim is restricted by thewords "to operate stantially,as set forth." :. " . . His ;further insisted on by the defendants that the, ,p3<tent in suit does not contaid apatentablecombina.tion; in that it OJlly an aggregation. of old parts or elements which act suocessively, and not: simuHal;uwusly., The simulmneou.s co-operation of ;the parts is ;not ellsentW to a patent!J.ble' cOIIlbiriatioll,o:i.ithil parts _ iBo are s;uci::essive ll.Qiiou "
......
.'
eacn cd'IitribhWs to 'pr6ducesoineonei>racti'OOl:re8tilt', which'rsult'; 'when the simultaneous or successive action of aU attrtined, il3the product the elementary parts, viewed as one entIre whole. The term "co-operation" dOes not mean actingtogetheroi:' simultaneously, but unitedly to a common end. Birrhall'v.McDonald,l Ban. & A.1M; Forbush v. Cook, 2. Fish. Pat. Cas.<668;iloffman 'V. Yaung, 2 77; So here the , electrical protection of the conductors is the result produced by the combination; lind the two instruments guard the same line at thesame time. One instrument protects it from cutting; and the other from short--eircuiting.Remove eithednstrument, and the result fails pro tanto. This result was useful, and never before known. The design ofthe combination waS to protect the patented apparatus against the' methods of disabling it by tampering with the conductors, as could be done with the prior systems. The instruments co-operate in making good each other's 'defiCiencies, and the arrangement of the conductors is such that all their essential parts are brought under the protection of the To this end the resistance co-operates with the closed circuit instrument by forming a path forihe cutrent, when the appa:ratus is in its normal condition, so that a continuous current may flow through the conductors and through the instrument without giving an alarm.. It co-operates with the open circuit instrument by enfeebling the current to such an extent that the open circait instrument is not called into action until a short Circuit is formed, and the current thereby increased. In view 0f the authorities, this constitutes a patentable combination,' leading to a new result by new means. But the defendants have introduced certain prior English patents which, they say, embrace substantially the same elements as are found in the patent in suit, and thus dePr.ive Guernsey of the claim of originality. It is not asserted that the inventions contained in the English patents are identical with that of the Guernsey pateM, but that, in the state of the art at the date of the Guernsey ol'iginalpatent, it required only simple modifications and substitutions in the English devices to make them produce the same results as are secured by the Guernsey combination. The English patents referred to are those ofTyer, (1865,) Varley, (1865,) and Moxon, (1866.) The devioe of Tyer is an apparatus for transmitting signals indicating the position of trains upon a railway, and his patent contains no suggestion that it cou,ld be adapted to perform the of. fice oia burglar alarm. It can be easily disabled by cutting one onts wires, and is thus incapable of effecting the result secured by the Guernsey . invention, which is the electrical protection of all parts of thecondllctorS between the signal instruments and the points to be protected. The Varley apparatus is it modification of the ordinary closed circuit system, and does not contain any instrument corresponding to the signal instrument of the open circuit system, or any other means of giving an alarm which is operated by an abnormal strengthening of the current, nor does it contain a resistance separate and distinct from the instruments; and it can be entirely disabled, if used for central office protection, by inserting a battery in some part of the line leading from the 'circuit closer to the alarm instrument.
of
t28
DDERAL UPORTER,
voL 42.
o
TJ;J.e Moxon patent would .also require substantial alterations to make it ae:eomplish the results which are obtained by the Guernsey combination. The proposed modifications and substitutions would be in the nature of ,ipventions, and are notl!uch as would readily occur to any orie skilled in the art. They do not consist merely in the substitution of one known equiveJ,ent for another, without any change in the resulting mode of operation; l;>ut it is proposed to substitute for one or the other of the ele- . meJ;lts of the prior combination something having a different or addi_ which amounts to the same thing as adding to the combinati()n a new and distinct instrument, and makes it a new combination having flll;lCtions that it did not before possess. Defenses of this characterhave Leen frequently discountenanced by the courts. Wooster v. Bkl!ce, 8 Fed. Rep. 429; Dudgeon v. Watson, 29 Fed. Rep. 248; Asmus v.Alden, 27 Fed. Rep. 684. Here, as in Dudgeon v. Watson, the defendants had used practically the same combination as is covered by the Guernsey patent, and subsequently made the changes by which they but in that case the court held that the sought to escape defendants accomplished the same result by similar or equivalent means. Among other objections to the Guernsey reissue, it was urged that no interference was had between the reissue application and the Holmes & Roome patent, of December 20, 1870; .but there is no proof that Holmes & Roome were the prior inventors. On the contrary, the invention claimed in the Guernsey reissue was shown and described in the Guernsey of Holmes & Roome. The .original patent, which antedates English patent to Holmes & Roome, although dated as of November 1, 1870, was not in fact issued until April 2, 1871, the date at which the great seal was attached; and therefore the provisions of section 4887 of the United States Revised Statutes do not attach to the corresponding patent issu.ed by the United The English patent to Holmes & Roome, ,W existence until after the date of the Guernsey not being sealed, was Plttent. . (lold &; Stock Tel. Co. v. Commercial Tel. (h., 2;3 Fed. Rep. 340. ofdefendants' counsel created at first The able some doubPi,oOhe validity of the Guernsey reissue; but, after a careful consideratioll of the variou,s objections presented by him, both orally and .in his printed, briefs, the has been reached that Guernsey was the original. illventor of the combinl;ltion claimed by him, and that the reissued letterS patent are valid. A decree will be entered for the complainants, ElXicepting as against the individuals named as defendants, in relation to whom there is DO proof that they were Personally guilty of in.
STREET fl. THE PBOGRESSO.
STREET
'V. THE PROGRESSO. 1
(District
Dourt,;E. D. PennsylilJania. April 22, 1890.)
CBARTER-PARTY-CANCELLATION-CONDITIONS-QUARANTINE REGULATlONIl.
A charter-party provided that a vessel should proceed with all convenient speed to Charleston, S. C., or as near thereto as she safely could and discharge, should load there, and proceed to Liverpool. Should she not arrive at port of lading on or before October 1, 1888, the charterer to have the option of cancelling the charter, to be declared when the vessel was ready to load; the act of God, princes, or rulers of the people, etc., excepted. Held, that quarantine regulations of Charleston, preventing the entering of vessels into that port before November 1st, were within the exceptions of the charter-party. Held, further, that the vessel was bound to go to Chal'1eston as soon as she reasonably could after November 1st, so that the charterers could exercise the option of canceling the contract then and there, and that she could not require the charterers to exercise that option at anl other place; and that, haVing failed to proceed to Charleston, she must respond 10 damages.
Libel in Admiraltv to Recover Damages for Breach of a CharterParty. " A. Sydney Biddle, for libelants. Alfred Driver, J. Warren Coulston, and Robt. D. Benedict; for respondent. BUTI.ER, .J. This case (being presented immediately before the April term of the circuit court) I must dispose of with little more than a statement of the facts, and my conclusion from them. On the 31st of August, 1888, the libelants and respondent entered into a charter-party, the material provisions of which are as follows: The respondent, reserving liberty to take outward cargo from Cuba to the United States, shall proceed with all convenient speed to Charleston, S. C., or as near then·to as she safely can; and, having discharged her cargo, shall load from charterer's agents, at such wharf or dock as they direct, a cargo of cotton or other merchandise, and proceed therewith to Liverpool or Bremen, as may be ordered, and on arriving there deliver the same on payment of the freight named. "Should she not arrive at the port of lading on or before October 1st, 1888, the charterer shall have the option of canceling the charter, to be declared when the vessel is ready to load." "The act of God, the queen's enemies, fire, epidemic, strike, or lock-out of stevedore's men, stoppage, or destruction of goods on railways, or at press, restraint of princes or rulers of people, collision, any act of neglect or default whatsoever of pilot, master, or crew in the management or navigation of the ship, and all other dangers or acci· dents of the seas, rivers, and steam navigation, throughout this whole charter-party being excepted." The respondentloaded sugar at Havanna, and came thence to the Delaware breakwater, en route to Philadelphia. Reaching the breakwater September 3d, she was detained part of a day at quarantine, and subsequently several days at the Lazaretto, below Phil· l\delphia, reaching the latter place September 10th. She then received information of quarantine regulations at Charleston, which stood in the way of entering. On communicating with the libelants, she was inI
Reported by C. Berkeley Taylor, Esq., of the Philadelphia.
F,ED;ERAL R:j!JPO;aTER,
formed that entrance could not be made before November 1st, or, rather, that the quarantiI1t>:rl:)gulations there would stop all vessels attempting to enter before that date; whereupon she went to New York for repairs. After further correspondence with libelants, and unsuccessful efforts to obtain cargo for a short intermediate voyage, she contracted to take a 'cargo"of cotton from Norfolk, Va., to Bremen. Loading this cargo, she November 6, 1888. Unlollding there, she went to Hamburg, obtained areturn cargo, and arrived at Boston, December 19, 1888:' On this day she applied to the libelants to exercise their option under the ('harter, by declaring whether they would load her at Charleston; to that their chllrter rights were claimed,and "Wonld be insisted on. ,She then declined to go to Charleston. , Tliequestion preEientecl by these fact$ is new and important. That it should not have arisen and been decided long ago, is remarkable. The terms,of the charter are not and vessels have frequently been detained at quarantine, or driven off by the fear of such detention, under similar circumstances; yet the industry of counsel has not, discov,ered a reported .case,in this or any other country, in which the question has been presented. Numerous cases arising on contracts of insurance, and some othersinvoly,ng kindred subjects, have been found, which ,shed some light on su,bject, though not much. These cases are cited in the Qriefs, and need .not be further noticed. The question must be determined by the cOl1tract, its language and spirit, without the aid of direct authority. There is no controversy about material facts. The ,been detained at quarantine had she proceeded respondent would on her voyage, t9 Charleston before November 1st. How long she would have been detained if! uncertain; possibly for a few days only. I assume, however, that it would have been until November 1st. The libela,nts contend that she was bound to resume her voyage, and go there whenever she could, and that she certainly could at the date last named. On the other hand, she contends that she was 110t required to go fit all, if "restrained by princes, rulers, or people," and that she was so restrained; and, further, she clai,ms that, if this position is not sound, and the contract still bound her, she complied with it by the tender, at Bostoll. was her obligation? She bonnd herself to go to Charlestop, with convenient speed, subject only to the exceptions stated. Among the several things which might relieve her from compliance were (( restraint by princes, rulers, or people." I entertain no that d;etention at quarantine, or being kept off by the certainty of detention if she, is covered by this language, nor that such faill;lre to arrive at the timesl'ecified. But did it justify an abandonment,?f the contract? I do not think so. To give it ,this effect, I must hold that such detention for one day or less, has the same result; orthnt "fire, strike, or lockout of stevedore's men, d,raymEm," and all other <;auses of interference excepted from the conhowever slight, or of however short duration. would be attended with the same fatal consequences to the charter. The language must receive a reasonable constr,uqtiou,..,..-such as tends to promote the objects of
STREET V. THE PROGRESSO.
231.
the parties. It would 'be as unreasonable to hold that the respondent, so restrained for a brief period, was relieved from her obligation, as to hold that she was bound by it to resume her voyage whenever the restraint terminated, though years may have elapsed, and the circumstances of the parties so changed, that the reasons or objects which led to the contract no longer existed. Neither position is consistent with a just construction of the charter. So long as the circumstances remained substantially unchanged.-the del3y, being no greater than might reasonably have been contemplated,-the contract remained in force. The month which elapsed made no material change. The respondent was still engaged in carrying merchandise, and able to keep her engagement::;; and the libelants still had merchandise to carry. She bound herself to go to Charleston and carry it, if she could get there within a reasonable time,-a time that answered the purpose for which she contracted to go. The exception was intended to protect her against: the consequences of delay. It was not designed to work an abrogation of the contract, unless the restraint should be virtually permanent. . It was not of this character. She was not prevented going, but simply delayed, and the delay was not such as to defeat the purpose of the parties. 1 have not time to pursue the subject further, nor would it be profitable to do so, if I had. Did she discharge her obligation by the offer of performance at Boston, if libelants would then promise cargo? 1 do not think so. They were not required to exercise their option until she reached the port of lading, "and was ready to load." This was a right secured by the contract. How could they be deprived of it by the request? If the contract was still in force, as I have found, she was bound to proceed to Charleston, leaving the libelants to exercise their option when,. she" was ready to 10ad."Ber learned counsel think she had an equitable right to call for the exercise of it in advance. There is no principle of equity, however, which can be invoked in her favor. Her express contract was otherwise, and equity never relieves against the terms of a contract (sued upon) except for fraud, accident, or mistake. A party needs no relief from an obligation which he has voluntarily assumed. As already stated, the restraint excused her from the consequences of delay prior to November 1st, when it was removed. Did it excuse the further delay which occurred prior to December 19th? This question may be unimportant. It relates only to the extent of damages recoverable. ' If the libelants' loss was enhanced by the additional delay, the question is important; otherwise it is not. It must nevertheless be tied now, as a guide to the commissioner who will pass upon the subject of damages. The respondent was not required to lie idle while the restraint lasted. She might employ her time, but she could not do so at. the libelants' or in disregard of their interests. It is quite 8.$ unreasonable that they should bear the loss of nou-complianceafter No-, vember 1st as that she should suffer the disadyantage of idleness,She, bound herself to be at Charleston as early as she could get there, under the circumstances stated in the charter, using "convenient speed," and
232
FEDERAL REPOR1'ER,
for any failure after November 1st, she must be held responsible.-While the conclusions above stated are satisfactory to me, I appreciate and feel the force of the able argument presented by respondent's counsel. The case is not free from difficulty, and I am glad that my judgment is not final.
THE GLENFINLAS. 1
DAVIS 'V.
A
CARGO OF CHALK,
Etc.
(District Gourt, S. D. New York. April 10, 1890.) L DEMURRAGE-U:t>LOADING BY LIGHTERS.
A large vessel, having four hatches, brought a cargo of chalk to the port of New York under a charter-party which contained the following provision: "Cargo to be shipped as fast as vessel can load, and to be discharged as fast as she can deliver." Her draft being considerable, she was first discharged into lighters out of ,one hatch only. The lighters were in no way improper, they were worked with dil,and the chalk was received as fast as the ship could properly deliver out of the one hatch thatwas used. The vessel was not breasted off the wharf, and no demand or 011'er was made by the ship to breast her off, or to work another lighter on the other side. Held that the vessel could not recover demurrage for this period. After the vessel was .lightened she sent to a chalk dock, where she could discharge from but one hatph a day. The master complained of this wharf from the first, and claimed that she should have been discharged from at least two hatches simultanenusly. Claimant contended that the vessel had discharged 150 tons per day, which was all that the custom of the port required. Held, that the clause in the charter Providing for the discharge of the vessel "as fast as she can deliver" was not controlled by the alleged custom. but was intended to secure to her a discharge according to ber size and means of delivering a chalk cargo in this port. and therefore at a dock reasonably adapted to her means of delivery, if such docks for chalk were reasonably procurable. as in fact they were. The vessel was therefore allowed demurrage for one-half of the working days after commencing at this Wharf, assuming that, in discharging at a proper wharf for such a ship from two hatches instead of one, the cargo would have been discharged in half the time.
2.
SAME-DISCHARGE FROM SINGLE HATCH-USAGE.
In Admil."alty. Action to recover demurrage. But'lcr, Stillman &; HUbbQ,rd and Mr. Mynderse, for libelant. Robert D. Benedict, for claimant. BROWN,]. The libelant claims demurrage for the detention of the ship Glenfinlas in the discharge of a cargo of 3,000 tons of chalk at this port in July, 1889. The cargo was brought under a charter which provided for "delivery along.:side to be taken at the merchant's risk and expense;" for "discharge at two safe wharves, as ordered by the consignee;" "cargo to be shipped as fast as vessel can load, and to be discharged as fast as she can deliver;" and "ten days on demurrage over and above the Said laying days at fourpence per registered ton per day." Her register was 2,148 tons. The vessel went first to Findley's stores at Atlantic docks, where she could only be discharged into lighters. There two days' delay arose, for which the consignees are liable. The cargo was
, Jaeported by Edward G. Benedict, Esq., of the New York bar.
Print
Email
Short URL: