, THE CLARA.
the use ofwater sufficient for such maneuver. The space in which she was cdmpelled tonarigatewa.s greatly reduced by the presence in the slip of more boats than the regulations of the dock-master permitted, but the space was still sufficient to warrant a reasonable expectation that. Ilhe could draw out without doing any greater damage than would result from the ordinary contact of boats when moring in crowded slips. She exeJ,'cised due care in leaving, did not move rashly, notified the intrudingboats to withdraw, and provided a steam-tug, by whose aseistanee she might counteract the danger to be from the tide pressing her against the pier, and thus swinging her stem out against them. eo far ,as the evidence shows, she moved out carefully, and line, as her greatest breadth of beam nearly ina' drew towards the outer end of the pier, she did come in contabtwith the outermost boat, pressing it with considerable force against its neighbor. Even then it is not likely that the libelant's boat would have been damaged had it not been that she was berthed aga.iilst a boat so much shorter than herself that the pressure she received from the other boats was not evenly distributed. Were this a controversy between the Express and the intruding boats, the latter would be held solely in fault; their wrongful act, which unnecessarily and unlawfully embarrasSed the Express when leaving, her slip, being the immediate and proximate cause of the collision. The mere fact that the libelant's boat was not herself in-:mult does not change the situation; her remedy for the injuries from collision. with, the other canal-boats is against them, not against the Express. Decree appealed from' is. affirmed, with disbursements of the circuit court and the costs of this court.
tI. THE CLABA AND THE RELIANCJII.'
(1HBtrict Court, B. D. New yOrk. February 14, 1892.)
CoLLISIOlr-EAEl'I'RIVEB-COBLBAB'S HOOX-STATUTE AS TO MID-RIVER-liUGGIlrG SHORB-SIGNALS OMITTED.
The tug'V., with a tol!Jwas goiug up the Eailt river with the stroug flood-tide, withm.400 feet of the !'lew York shore, and was nearing Corlear's Hook. The steam.barge a, comiug down stream nearer the New York spore, on Pllossing from the .slack-water iuto the strong' flood-tide off the Hook, setting a little acros!! the river; her head to port, and collided with the tow of the C., though both vessels Held, that the C. WBolI in fault (1) for disobeying the statute whiohreqliil'ed her to take'the middle of the river; also (2) for not and , (8) .fQr 1l0tgi'Vingmore room for the awing of the R. in the cro.t.ide.The R.,
to keePing. a to coilnteract
,'". .. .'
ccimlrig,.. d9ivD"Qq .PlfJ:;qw.n Illee.t any eomi.ng up in the C.'s,situation, .was . proIHIr 'lookout,' it:nd not. doing ·. aU she might
; .' '.'
"ThEl n.ori-ob'servartce o.f. the iii. t.o ii.li'Vl. te'Hit.hEi.mid.dltl of '·· maWrial when it. Qa1Jsea embarrlUlsJJlent W' .IMlthQr: \Tessel. To . ':' . . i!npose duties, designed tn p"rt to avert the .' consequeni:il!s'ol )IliSllake'Cl1'·begHgence.. Renee the iii rule, such ,gh;e· .. .does immaterial. of the , been necessarY if the vessel had donQ·her duty, or had ., not been .. . I !. ;
! " '. . · · ·
',' of h oat daw.ages fOJ,"cp1lisjon: Ce,.Mosher, ... Goodrich, Deady Ce .Goodrich. 'for the Clara. Wing. Sh01lfly & Putnam, fpr the Reliance.
l ;'" ·· · : .· ,
. ' .,' ,. .'
Distllict Judge.."At about 8:30
on October 20, 1891,
as the steam-tug Olara" iviththe canal..boat George Adams lashed to het
port side, was proceeding. up the East river in the strength of the flood.tide, the canal-boat, when off Corlear's Hook, came in collision with the steam-barge Reliance,loaded:with coal, which waseoming down the river and rounding Codear's Hook near. the shore. ,The Reliance was loaded deeply by the head, and on passing cfrom the slack-wa·ter near tne shore into the strong flood-tide, which sets from Jackson-Street pier though both towards Williamsburgh,ehe was swung found reversed full speed, they could not avoid collision. This collision, like so many others that occur at Corlear's Hook, is directly traceable to the persistent refusal of those navigating round the Hook to observe the statutory requirement to go as "near mid-river as may be." For the purpose of taking advantage of the slacker water at one place or another above or belo)" tqe .Hook, tugs continually take the additional risks that a violation of the statute involves. In the present excuse. Although the case, so far as I can see, the Clara was evidence is contradictory as to her precise position in the river, I am satisfied that she was not over 400 feet from the New York shore, if so the width of the river there. A number of much, .witnesses testily she was only half that distance out. Of the disin;Who were in th.ebest positiQD to observe make terested witne8&es, the distance from the New York shore the smallest. The only excuse ,qffered by the Clara for not keeping:themiddle or right-hand side of the the set of Willjamsburgh' But that is without, force; .tner.e,was nothing in the tide that presented th,e diffil;lllty'in'. going in mi(i'..river, or on the right-hand side pf thEl river, had the Clara beenso.inclined,Thel 'river was clear of o'ther vessels. Tbe Cla.rn. -w$$ furtherJp' fault .for "notl3ignlilhig as requited by therulea of the supervising inspectors. ' given
given py .signaling UI that she, was so much'w,rther out iJl _ ·river. thim the 'Reliance that. there was no need of signll1s; but the reault pr,oves the contrary. It is ,further urged that, both her place. in ·;the river and the absence of a signal Wl'lJ:'6 itiqle. en()ughand enQugh for the tQavc;>id each ,without the giving of. Jf tllisargurneqt we;re sound,_ no signal wmild ever be material" time enougb andspaceeJ}ough if each1)ol\t doesher!Ipty except it). c8aesof inevita,ble accident.. The iW,Qpl!I. make, proper loqkout on the }Jelillnce absence of. lio"}ookout,would have dona no haro:rhlid tlleClara the.statute required her W,lm," [rha ,argument:wllOllyov.erloob the. object of the various, rl;l1es the, avqJpancEj.of ·.·which is to provide cumulative gUar.anties Preaer;va1;ion of life and property, rather then to allow the -safe,ty of;1Jl) of a. 10 involving the Joss .()f lifa, these cl,l.mulative are the rules and. ltlg\llatiou-s upon botl;l vessels. . booa,qse suoh ,signals ten!iJo ll,vert of. and the lack..¢,previous,tiooely one side or the other, well as toeqablethe boats to as to the mode of passing. Navigain micHiver is requirf;ld in orde.I' to give larger for maneuvering; and to avoid.#J,e special WtllgerS' arising. near the shore, . withotqer vessels: I:lell Gate, the Battery present the grfll!.test dangers the obser\Tance, of all th.erull3S .to ffillisipn i.s in those pJ-acesmO£lt I think. it .Probable, 8.$. the far the: Clara; that.if a good lQOkol,lt pad .been kept on .the Reliance,an;d. if4enYlleelhad the mome.I;It:when to,:ilw,rboard,and thus no delay in portiJ;lg llacl the Wight possibly: 4ave beenavoid.6!l, q,lth,pugll: certajn.. :a\lt the ReJianpe did, Qot· f8i ;S.he ,'.Vas; ;PQtsuing ,QoUiSe,;cpming do.w;n,op the right-hand side of the ..l\npar(mtly. djd, ,n,9t expect to meet a vessel comiIlg up in the Clara's position. She was inattentive and negligent, and is, therefore, chargeable with her own fault, and is liable therefor. But that does not remove the fault of the Clara in coming up the river in the strength of the flood-tide near the New York shore without good reason, and where her course was a serious threat and embarrassment to the Reliance, coming down on her own side of the river near the New York shore in the customary manner; because it would require, I think, the utmost care and effort by the Reliance, from the time the Clara's position and course became first visible, to avoid on the one hand the long Jackson-Street wharf, and to avoid on the other hand being set across against the Clara by the strong cross-current the moment the Reliance struck it.
by eitbel"tug, J'
:::tri1e' oc>nstantly' applied is'.that; ,if the navigation . the one vesse!:Motrary·to the statute produces difficulty and embarrassment to the oihet Vessel, the violation of' thesfutute shall be held' to be a tribut1ng:fault, since oDeM the objects of the statute is to prevent such embarrassments, (The a'alumbia, 29 Fed. Rep. 716, 719; The Rockaway, '88 Fed. Rep. 856, affirmed 48 Fed.. Rep. 544; The Garden Oity,88 Fed. Rep. 860, and cases there cited;) if it causes no emparrassment, it is not deemed a· proximate cause,of the collision, and will be gaided, (The Columbia, !trI1Ip1'Uj The 44 Fed. Rep. 510, affirmed 1 U. 8rApp. '123,49 Fed. 479; 'The Ji)mperC1t', 46 Fed. Rep. 148.) . So:also(had a signal been given by the' Clara a.srequired by the inspector's rules, there is no reason to suppose the attention of the Re1i&D.(le would not have been attracted by it. The Clara has not shown, and cannot show, that such a signal would have been of no nse. PhI Pen'M]/lvania,19 Wall. 125,186; The Deniz, 29 Fed; Rep. 528. If the presence of the Clara made known, earlier efforts would naturally ,ha:vebeen made by the' Reliance to withstand the strong set of the tide which swung her against the Clara's tow. The lack of a signal thus presumptively contributed directly to the collision. Whel1thEfRe1iance was seen by the Clara at some distance, it was', moreover, the Clara's duty to go to the right a sufficient distance to allow for any swing of the Reliance that the tide might: Cause without her fault. TheJi}oed Jan8en, 49 Fed. Rep. 254, 1 U. S. App. 92. There was nothing to' prevent the Clara from doing so. The evidence does not warrant the finding that the Reliance was in fault for being loaded by the head, nor because the tide got the best of her for a few tnoments.NorwaS such a swing to be wholly unexpected; it happens bceaaionally, and the Clara took the risk of it in going so near the .shore., I have no doubt tpe Reliancetooldhe ordinary preeautions, ,and, after the Clara was geen,' did as well as she could. Her fault was.in 1\ot seeing the Clara sooher; but for this the Clara was also partly responsible, hecause· she didJ,lotgive the, signal which the law required of.her·.· 'The fault of the Reliance being obvious from, want ot a proper lookout,' the damages must be divided, and a'reference ordetfld to compute tbit'amoulit,if ,not agreed upon. '
.ORTON fl. WALSB.
et ale t7.
(Ot,.ClI:U Oourt, E. D. Wi8consin.
Where parties, having in their jOsSeSSion evidence deemed material, appeal without tor a an after six months dlimiss the appeal and &$k for a rehearing on the ground of newIY.:-discovered evidence, their laches is inexcmsable, and the motion should be denied. ..
In Equity. Suit by Edwin Norton and others against Francis A.; Walsh for infringement of patent. Motion for rehearing upon newlydiscovered evidence. Overruled. N. O. Gridley, for the motion. Munday, Evarts k Adcock, opposed. BeforeGRESlIAM, Circuit Judge, and JENKINS, JJistrict Judge. JENKINS, District Judge. The bill was filed for an alleged infringement of certain letters patent of the United States. Upon final hearing before the district judge, an interlocutory decree passed for the complainant on the .5th day of January, 1891. A motion for rehearing W8J! presented to the circuit and district judges on the 25th day of June, and overruled on the 13th day of July, 1891. Thereupon an appeal was prayed and allowed to the circuit court of appeals,. which on the 12th day of January, 1892, was dismissed upon motion of the appellant. The mandate of the appellate court was filed here on the 16th day of January, and the present motion filed on the 18th day of January, 1892. The motion proceeds upon the ground that the inventions claimed under the complainants' patents were anticipated by certain newly-discovered patents disclosed in the moving papers. So far as respects all the patents now sought to be introduced 3S newly-discovered evidence, except No. 79,890, mentioned below, no excuse is stated for failure to plead them or to make timely profert of them in evidence. The answer asserts, in anticipation of the inventions claimed by the complainants, 20 American, 5 English, amI 3 French patents. The search in the patent-office, preliminary to pleading, is stated to have been thorough and exhaustive. These patents now offered as newly-discovered were, so far as disclosed, accessible to the searcher, the then counsel of the defendant. No failore to discover them is asserted. It must be presumed, therefore, that they were known to him, but deemed immateriltl to the controversy. The failure to find letters patent No. 79,890, issued to Becker, Ross, and Sturnagltl, is excused upon the facts stated in the moving papers. But regarding this evidence as newly-discovered, not cumulative, and that due diligence has been used prior to its discovery, we are yet of opinion that this motion must be overruled for failure to make timely presentation of the matter to the court. The patent was discovered by <:lOunsel prior to the argument of the original motion for rehearing in June, 1891. As stated in the moving papers, it was referred to upon that argument, and the court declined to consider it because it was not v,49F.no.10-49