CANDEE " ·. SIXTy-EIGHT BALES COTTON·.
(District Oourt, S. D. Al.abama. March 9, 1891.)
1. B.u.VAGB-WBtI1Ii .ALLoWBD.
Salvage is allowed asa·reward for the benefit conferred on the person whOle property is saved." . .
There is no nile governing absolutely the rate of salvage, but, when the property is dereliot, at least one-third of the value of: the property saved may be allowed. '
B. BAlfK-PASSBNGERS AS BALVORS· .A .passenger is elltitled to salvage when his services are extraordinary.
.. SAlfE· .
When mariners left in charge of carlto, necessarily thrown overboard, desert their post, and a :;laBseuger, by persuasion and rewards, induces them to return, and suoeassfully directs them in the relilCUe of the cargo with llhe ship's appliances, hels entitled to salvage, but not to the extent of the full value of the service rendered
In Admiralty. Libel for salvage. The steam-boat Anderson, while coming down tbeMobile river, had a part of the cargo, consisting of cotton in bales, to catch fire. An effort was made· by the officers and crew of the vessel to extinguish the fire while· the cotton was still on board. Being unsuocessful the master had the burllingbales thrown overboard into the river, and ordered one of his officers lind five or six members of his crew to take to the small boats, with proper appliances, and to endeavor to save the cotton from burning, -and to secure and keep it ulitil he could go with his steamer to Mobile, (some 20 miles distant,) and send up a tug-boat for it. The steam-boat went on without delay to Mobile. The libelant was at the time a passenger on said steam-boat. He voluntarily left the boat, abandoned for the time his trip toMobile,and, with the crew left by the master, joined in the effort to save the cotton.· Most of the 'cotton was saved, but some orit in a dainagedcondition. M. D. Wickersham and PiUa1l.8, T(Jf'l'e'!J &; Ha'rul:w, for libelant. OveraU .&; .Bestor, for' respOndent. . TOULMIN, J.The general ,principle is that salvage is only payable where a meritoriO'Us s61'\Titjehas 'been rendered:; It isalJowed as a reward for the meritorious conduct of the salvor,and in consideration of a benefit conferred on the person whose property he has saved. There is no positive rule which governs absolutely the rate of salvage. In this case if the cotton had been derelict,-that is, had been deserted or abandoned by the vessel,-:-and it had been saved as set forth in the libel, I would award at least one-third-perhaps more-of its value as salvage. But I find from the proof that the cotton was not derelict,-was not abandoned,-Lut that the master of the vessel left an officer and six members of bis crew to secure and preserve it until he could go to Mobile, and return or send for it. If this officer and these men had diligently and faithfully
JReported by Peter J. Hamilton, Esq., of the :Mobile bar.
performed their duty under their obligations to the boat and cargo, the services of the libEl'lant would havebeeh unnecessary. But it appears from the proof that one-half of the crew left by the master to perform the salvage service weraabout to desert their post of duty. They proposed to abandon their trust and to leave the work undone., so fa,J: as theY.were effioienoyllud value .of in, and his superior intelligence, will power, and energy were displayed. It appl"a"rs}rQp1 the proof tbathe induced these mall to remain and continuein the work, andproposedtJO pay them $3.apiece if they would do so. They did continue, and \1nder his directionsyvorked .to save the cotton, (which it was theirduty,todo,) and he paid them the amount agreed on. The libelant's advice and direction must have constituted his work actuaJly done, as he. had no appliances with which to dQ the work other than those furnished by the boat; and which were in the possession and charge of the boat's crew left for the purpose. The libelant states in his libel that he got a boat from the bank, and hired four men·at $5 l;l.piece to perform the service, and them. f)ave:d .the68 bales of cotton. From the allegations qf the libel, it would. 'be inferted that the libelaQt· had hired four men disC;llln,necte,d with the boat, and under no obligations to the ;l[essel allocargo, to aid him in the wOrk.. If this waS the proof I would at least, allow 86 ,a .bale assalvage,wbich I co.nsidera fair award for the whole service rendered, cotton was not derelict. The proof elhows that the serviGe was.rendered by the boat's crew, .withibl appliances,:i,n conjunction but it also shows that he mainlyPoss,¢. the undertakipg, and generously. rewarded some of the men for their duty in the matter. It is sufficient. to entitle the j\lst that a beneficial service has beenrendered; it)sonly inestimatilig ,the! quantum of compensation that the motive!'l.byw!l;lichhe. was be .taken into account. Tha libelant in this case has rendered service. TInt. untler the him entitled tu ,he full value of the service rendered by nIl engaged in it, butthliit he is entitled. to a large proportion of it. Although a passenger; he is entitled to salvage.. His servic£l8,were extraordinaq:.The Brabo, 33 Fed. Rep. 884. But I consider 8200:ampla compensation for the services rendered by himj and such will be the decr,ea.
HEAD 'V. PORTER.
HEAD '11. PORTER. (oCrcuu Oowrt, D. Ma88achusetts. December 8, 1891.)
FEDERAL COURTs-J"URISDICTION-lNFRnlGEMENT OF PATENT-SUIT AGAINST. FEDERAL OFFICER.
in t)1e. circuit court for
An ofllcer of the United States, in charge of a government armory,may be sued of a patent, notwithstanding that all his acts in relation thereto have been performed UUUclr the orders of the government.
In Equity. Suit by Charles Head, as administrator of William S. Smoot, against Samuel W. Porter, master armorer at the Springfield armory, for infringement of a patent. Heard on plea to the Plea overruled. WiUiam A. Hayes, 2d, for complainant. Frank D. Allen, U. S. Atty., for defendant.
CoLT, J. The plea in this case raises the single question ot jurisdiction. The suit was originally brought by William S. Smoot, the complainant's intestate, against James G; Benton, an officer of the United States army in command of the national armory at Springfield, Mass., charging him with infringement of two patents, dated, respectively, January 1,1867, and August 27, 1867, for improvements in cartridge retractors for breech-loading fire-arms. Subsequently the defendant died,and' thereupoil the complainant moved to amend his bill by substitntingthe presettt defendant, Porter, master armorer at the Springfield armory. The amendment was allowed, reserving the right of the defendant to object. The defendant appeared, and without obje'ctions filed an answer in the case; The United States attorney, on behalf of Porter, urges this circumstance as' tending to show that this suit is in substance, though not in form, against the United States, but I rail to seethe forceiof this argument. The complainant, on the death of Benton,might have proceeded against his representatives; but he chose to sue the present defendant, who consents to be substituted for Benton. The-suit, therefore,stands as if originally brought against Porter; The defendant admits that since theda-te of the patents, and before the filing of the bill, he has superintended, and still superintends, the making 0fbreech-loading fire-arms, at the Springfield armory, as the master armorer, but he alleges that all his acts in relation thereto have been done in obedience to specific orders from the secretary of war, and his superior officers, directing the construction thereof, ar:d in no other way; in: other words, his defense is that he has acted only as the agent of the government, and undor its authorit.y. The subject-matter of this suit is a patent issued by the United States, and it became important at the outset to determine the nature of this grant. It has been authoritatively declared by the supreme court that the right of a patentee under letters patent was exclusive of the United States, and thatit stands on the same footing as other property. Jarne.s v. CampbeU, 104 U; S. 356; Holliaterv.Manufacturing 00.,113 U. S. 59, 5 Sup. Ot. Rep. 717. Asv,48F.no.7-31