THE CITY OF MACON.
Heyer, ubi BUpra, a very compromiaing letter waa held not to operate as an estoppel. 'itT e deem it necessary to consider only one of the exceptions as to the rule of damages, because our conclusion with reference to that supersedes all the otherB. The declaration alleges as follows: "Since the 1st day of November, 1888. knowingly, willfully, and fraudulently offered for sale, and is now selling, glue in packages," etc. There is no continuando with reference to the matter of seHing; so that, according to the common law, the plaintiff below could properly prove only one actual sale as an independent basis of damages. The defendant insisted at all necessary points on the enforcement of this rule, and exceptions were carefully·,jaken and allowed; so that this court, however much it may regret it, is compelled to meet this issue. There is no doubt ·that at common law the position of the defendant would be correct on this point, and the Massachusetts statutes relating to pleading have not changed this rule. Walk. Pat. (2d Ed.) § 435; Eastman v. Bodfish, 1 Story, 530; Kendall v. Brick Co., 125 Mass. 532. In the face of this objection, the plaintiff proved at the trial, by the defendant's treasurer, sales of infringing goods, between November 1, 1888, and November 30, 1889, amounting to $56,318.24. It cannot be doubted that this was a substantial element in' determining the verdict. This relieves us from considering whether or not,' in view of the fact that the plaintiff below persisted in proving transactions in various parts of the United States, he can llOW claim that his suit was based on any portion of the statute of Massachusetts which goes beyond the common law, ifthere bcsuch, or whether at common law the allegation in the declaration that defendant "offered for sale," which was accompanied with a proper continuando, would form an independent basis for damages, or whether either the statutes of Massachusetts or those of the United States, relating to this topic, recognize a rule that any Use of an infringing trade-mark short of actual sales can be made the basis of a suit at law. Judgment reversed, with costs, and case remanded to the circuit court, with directions to enter judgment for the plaintiff below for nominal damages and costs of that court, if plaintiff below so elects; otherwise to set aside the verdict, and take further proceedings not in.consistent with the opinion of this court.
BEDOUIN STEAM NAV.CO., Limited, v. THE CITY OF MACON
(Oircuit Oourt oj Appea18, Fifth Oircuit. June 2S, 1892.)
COLLISION-STEAlIIIIlBS-OVll:BTAKING VESSEL-SAVANNAH RIVER.
The large steamship Nedjed left her berth at Savannah, on the south side of the Savannah river, with tbe assistance of a tug, BIld started down the river. It was a list starboard,.wlI$ "B.Dlelling ,he bottom, · flood tide. She drew 19" feet, and steered badly. In pulltng from thwwbUrf sbe took an angle across tbe chan-
· Th.etug was at ltarboard bow, hut ,Ihe be Itrafghtened In tbe'cbannel thelt1fke ateamer Macon, tben 80001' 400 yards astern, Ilgnal,ed that sbe w,ould pass, to,!ort., The Nedjed repli,ed, with threeblasta, which mistaken by the oftloe,rs o the Macon for two blas,t., signifying, "All right; coine' her engines were' put full speed ahead., The oftlcers of the Ned:')'IlIi,::wave,d their hate, and, called to,rthe Macon that she must keep astern, but their Illg,alll.were not understood. 'Wbtl' ,about 100 feet away, "a little to the north and ,".'"little 'astern," the oftlcera of the' Macon noticed the Nedjed sheer to port, and atol'ped their engines. and put their, helm hard astarbOard, but did not reverse, thID!"h)g,there WIlS still ,room to pass; but, seeing her still continue to sheer, they then reversed at full speed, but too late to avoid collision; The river here Is nar· row, \nd the speed of the Macon,exceeded that prescribed by the ordinances of I)avanl)ah. Held that, as the 1'iedjed was liable to sudden sheers under the circulnstimcell, she was not responsible, and that the Macon wall solely In fault, because,of her excessive speed and disregard of the rule that an overtaking vessel m,us,t keep out. of the way. (7 1<'ed. Rep. 919, reversed.
'Tile Nedjed had a right to act on the exigency of tbetlde and her own draft, whl,,11 made It imperative on her to reach Tybee Knoll at high water, In order to paBs ,to Bel' on t.bat tide, and was not bound to remain at her berth, or to anchor or remoor, until the Macon passed. '
Appeal from the United States District Court for the Southern District of Georgia. In Admiralty. Libel by the Bedouin Steam Navigation Company, Limited, against the steamship City of Macon, (the New 1£Ilgland & SavannabStcllmship Company, cll1imant,) for collision with the steamship Nedjed. The district court held that the "Nedjed alone was in fault, anli dismissed the libel. 47 Fed. Rep. 919. Her owner appeals. Heverspd. Wm. R.Leakinand Oharlton, for appellant. Alex. R. Lawton, 10r Belore PARDEE alld M,,-coUAUCK, Circuit Judges, and LoCKE, District Judge.
iMcComfIClt, Circuit Op the 18th of. Octoher, 1890, about 9:10/1.. M., the stealllship!\e<;ljecL started on her to Liverpool, Eng., from her dock at Gurdon wharf in the city of Savannaq. She had on duly-licensed pilut. She had ahead of her a, ,to aid her ip, getting out into the stream of the Savannah river, and in her passage its channel. She had a full ,cargo, and was qrawing 19 leet 9 About the sUllie time that the Nedjed left her dock, the City of Macon lell her slip at the Central Railroad wharf, about a mile higher up the river, anti started on her voyap;e to Boston. A few minutes thereafter, (the exact number cannot be deterlHined from the proof,) tile City of Macon attf'mpted to pass the Nedjed, and the ships collided, !'<ecljed serious injury, and damage to herself and cargo. ·1J.I'h:e RVIlell111'1t, the owuer of the Nedjed, exits, C;::ity Qf Macon inthe I court lor the soul'h'ern district of charging that the collision resulted from the fault of the City oLMaoonj and without lsulton the part of the Nedjed, and and vraying judgmE'nt for damages to a very laIKe amount. The ownerof the Macon put in its claim, in due time, and stipulation to pay the, llsUal form, and in the sum of 8160,a 000, and. delElDtling tbehbel\,al1eged that the Mllconwas not at fault, but that the the fault of A vast
THE CITY OF MACON·.
volume of proof was taken, and the case came to trial in said district court,and 011 the 19th of October, 1891, the judge had filed in the clerk's office his written decision, announcing that the libel should be dismissed at the cost of the libelant. And on thti 21st of November a .decree was passed, in accordance with said uecision, from which the libelant appealed. The errors assigned are: "(I} That the ltaid court erred in deciding that thA said Bedouin stE-am Navigation Company. Limited, was not entitled to recover against the said steamship City of Macon, her tackle, etc., and the said New England and Savannah !Steamship Company, claimant. (2) That the said court erred in dismissing the libel tiled by the said Beduuin 8team NaVigation Company, Limited, in said cause." There can be no contention as to the law and regulations for navigating ships in the circumstances attending these two ships immediately before the collision. "Every steam vessel, when approaching another vessel so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse. Every vessel overtaking any other vessel shall keep out of the way of the last-mentioned vessel,"-Rules;21, 22, § 4233, Rev. St.,-which is thus stated in the later act of 1885: "Notwithstanding anything contained in any preceding article, every ship, whether a sailing ship or a steamship, overtaking another, shall keep out of the way of the overtaken ship." Act March 3, 1885. "When steamers are running in the same direction, and the pilot of the steamer which is astern shall desire to pass on the right or starboard hand of the steamer ahead, he shall give one short Llast of the steam whistle as a signal of such desire and intention, and shall put his helm to port; and the pilot of the steamer ahead shall answer by the same signal, or, if he prefer to keep on his course, he shall give two short and distinct blasts of the steam whistle, and the boat wishing to pass must govern herself accordingly ,but the boat ahead shall in no case attempt to cross her bow, or crowd upon her course. When steamers are navigating in a crowded channel, or in the vicinity of wharves, they must be run and managed with great caution." Rule of Sup. Inspectors, p. 55. "In narrow channels every steamship shall, when it is safe and practicable, keep to that side of the fair way or midwchannel 'which lies on the starboard side of such ship." Act March 3, 1885, (23 St. at Large,p. 442.) The respective pilots of these ships were well acquainted with the terms and force of these navigation laws, which all reported cases involving these questions strongly emphasize. The only question, therefore, to be settled is, how were these undisputed rules observed in this case? The district judge in effect found that they were fully observed by the City of Macon, and that she was not at fault. On appeal in admiralty, the court will not reverse the decision of the district judge, on a question of fact, depending on conflicting evidence, unless it clearly appears to be against the weight of evidence. The Parthian, 48 Fed. Rep. b64; Levy v. The Melville, 37 Fed. Rep. 272; Guimarais' Appeal, 28 Fed.' Rep. 528. In this case it does clearly appE'.ar to us that the
decision "of the district judge on the disputed questions of fact is against the weight of the evidenoe. Indeed, it appears to us thaUhere is very little substantial conflict of testimony in the case. Thete is some apparent conflict, but it is almost wholly either the difference between positive: and negative tes:timony, such as "I heard," and "I did not hear," or it relates to the mere matter of opinion as to the depth, width, and course of the channel at different points, and as to the speed of the City of Maccw:,!allof which can be ascertained with reasonable certainty from other undisputed evideI)ce in the case. The vessels were both largo ships. The Nedjed was. 320 feet in length, and 40 or 45 feet beam. SHe 'was then drawing'19 feet 6 inches aft. The City of Macon was only a'few feet shorter, her beam being 40 feet, and she was then drawing 18 feet and 1 inch aft. Judging from their own testimony, and from other evidence in the case, the officers in charge of these boats were. men. of skill and character. .Their testimony appears to be entitled $() fulleredit; and the weight of their testimony is to be determined by a comparison -of their respeotive situations at the time of the 1;>ya comparison of what they affirm, with other established factsalld credible testimony· Bef<mratarting, the Nedjedwas at her berth at the wharf, on the right bank oftheriver jwithher bow down the stream. The tllg first pulled on het: port, to draw her into the stream, and away from the wharf. As soon as·shewas sufficiently clear of the piers for her propeller to revolve, heNilllgines were started slow ahead, with her helm hard aport, andthetng was carried over to the starboard bow. The tide was flood, about two thj.rdEl full,an hour and a half or two hours before high water. The to force her bow to port, or to resist her responding to her heln)"and the force of the tug to bring her bow to starboard, and straighten her in thechatlDeI. She had a list to starboard. She was smelling the bottom, and steering badly. In pulling out from the wharf, she took an angle across the channel, a point or two towards the north shore, and had not succeeded in getting properly straightened in the channel, when· the. City of Macon, then 300 or 400 yards astern, (her captain says 111,100 feet, or such a matter,") signaled with two sharp blasts of her whistle, which both parties understood to mean, "I am going to pass to your port." The pilot in charge of the Nedjed ordered her captain to give three blasts of her whistle in reply. This Capt. Newey himelfimmediately did; but for some reason Capt. Lewis, who was acting pilot as well as captain of the Macon, mistook this reply for two distinct blasts of the whistle, signifying, "All right; come ahead." The pilot in charge of the Nedjed, observing that the qity of Macon was still coming on, waved his hat, and shouted, "You must keep astern until I get around the bend," which, appearing not to have been understood by the offioer of the Macon, was repeated by the captain of the says you must keep astern until we get around the Nedjed, bend." The ships were then very near together. The pilot and captain of the Nedjed were only about 250 feet from the captain of the Macon at the time the captain of the Macon heard the hallooing, but.
neither he nor his mate could distinguish what was said, and neither paid any attention to what was said, "because at that time they were going full speed .astern on. the Macon, and handling her according to the rules." The bour, the weather, the lay of the river, and the conditions of the port were such that the captain of the Macon could have seen the Nedjed from the point and time of his starting; but the navigation of his ship along the city front, and by other vessels, engaged his attention, and he did not observe her until he was abreast the wha!'f of the Baltimore Line, and some 300 feet above the point from which he signaled. An ordinance of the city of Savannah limits the speed of steam vessels along the city front to four miles an hour. The whole way from the Central Railroad wharf, the Macon's starting point, to "near the Fig Island light," where the collision occurred, is along the city front. The channel near the Fig Island light is a narrow channel for ships of that size to pass while both llreunder way, and going the same way. Just below this point is the" neweut," the narrowest part of the channel, and to enter which, with so large a ship as the Nedjed, required that she should steer near the north line, or port side, of the channel just before entering. The time and distance covered by the Macon from her lltarting to the collision. the entries in her log, the evidence of her engineer in charge of her power, show that her speed was more than foUr miles an hour when her captain. first observed the Nedjed. It is conceded that when he received the Nedjed's reply to his signal the Macon was then put full speed ahead, to enable him to run by the overtaken steamer under way. When the Macon was about 100 feet from the Nedjed, "just a little to the stern and a little to the north side," the Macon's officers noticed the Nedjed sheer to port, and stopped the Macon's engine, and put her helm hard astarboard, but did not reverse, thinking there was room enough at that time; but when' they saw her continue to sheer, they then reversed the Macon's engines at full speed, but she was then too near, and her headway too great, to avoid the collision. There were two collisions. before the Macon consented to reIIlain astern until a point was reached where it was safe for her to pass. It is unnecessary to pursue this statement through the details of the first and second collisions. After the second collision, the Macon kept astern until the ships reached Venus point, some distance below, when the Nedjed stopped for a survey, and the Macon passed to sea on that t}de. SOlDe of the plates of the Nedjed were cracked or burst, so as to cause her to take water freely, the injuries extending to within four feet of her bottom. The testimony of the pilot, Fleetwood, and of Capt. Newey is so well supported by the circumstances of the situation, as shown by all the proof, that we are constrained to conclude that the Nedjed was a wellconstructed, well-equipped, and well officered and manned steamship for ocean service; that she was maneuvered to the best advantage reasonably practicable in that channel, with her burden; that she was not maneuvered to cross the bow or crowd upon the course of the Macon, but was using the best endeavors of skillful officers, with adequate machinery and ap.
J ' .
. e.;8i,d .0.qp.. e.lJ.t. .. ,t.eg . Cynt.h.. ia,t() . elf straight ;:!.t.bat. h.e.rdraftrW.AS . . th.. .s.h .. h·a.. d ..e .. ,r. sum· Q . .,,. llf.';. t . at :s.h., .·. . . . . g, ar..,sm . . .. . ..".. an.d thus W,., ,8, s'hee\'i tAat she; a large .vesher better for keepmg, a dIrect c01;U'Se, in her behp; in about 10 minutes ... e.lef.t,h.e,r Whm 1loIlii.. b.efi.ore.· she.ha.d. 8.otten p. roperly .. ..... ..... ... was on herin the manner already straighteI1\!4ill the channel, .. · .toqe. of the ,qf the officers of. the Macon indicates that their j'udghlerit received a strong bias from a suggestion which t9 ,l}aye have since affected vlE1ws, of: the tor the WlllIqa,nts, to the effect that the :aritisb,traJRP hap ',,"pt' 01;1 the exigency of the tide, and of .her own to reach Tybee Knoll at tide, but.was bound to .at uptlA or to remoor bme) when she received ;pr.aD«;lpor. put
. · ..
. cqntrlbute<l,to»l favor, the tre
this the NedJed, or ,01 t.lle dlstl'!ct .' sal.d Court, wltb. to · a reference toa comWlS810ner 12 so ordered.
·,(cInit. Court 0)' ,Apj)';'b.J,rthCWuu.
: 1!fo. M.
,.·. :.;I'etrr $i'lJft.·*d.
AppealfiOrn the Distrb.lt· COutt' of the the Eastern District of Lou.is1ana. . . , . ", '. . ··... Libel by ,8teamsh.ip to teMverfor . rendered ,liS a stevedore. . The libel was dlSmlssed ,by tbelIistriet ReveraelL ,tt B. ,Sanaum, for Erlte8rT.,Flot'anc6,for appellee. " .' Before ,PARDEE and McCdRKiC.Jt,.Circuit J udge8; and LoCJOll, District Judge.