6fSlltfieid, who assigned his patent in May, 188.5, can be imputed to ,t}le complaillunt, still the proOf is insufficient. The time which elapsed b,efore the defendants were notified to desist from infringing was only 'apout and the suit was commenced within four months th'erellfter. In the circumstances of this cause the delay was too short to 'constitute laches. Collignon v. Hayes, 8 Fed. Rep. 912, 916; Kilbourn v;'Sunaerland, 130 U. S. 505, 518, 9 Sup. Ct. Rep. 594. The testimony seeking to fasten knowledge upon the complainant himself as as the autumn of 1889 is too vague and uncertain to prevail against his positive denial. Fo'l' the reason!'! stated at the argument the defendants should have an opportuhity to give a bond if they so desire. 'An injunction may issue, unless within 10 days from the date of the .i:!erviM of a copy ofthe order elitetedupon this decision, the defendants a bond in the sum of 86,000, conditioned, substantially, as in Swift v. Jenks, 19 Fed. Rep. 641. If a bond is given the complainant ban at any time move to increase the amount upon sufficient proof that 'ill·isinadequate. '
CO. OF SAN FRANCISCO 11. DEXTER.
(Disfirict yO'Urt, S. D. Nm,o York. July 13,
SmpPJNl!J;+-MASTBh-NEGLIGENOB-'-AppROAOHtNG DANGEROUS. CoAST.
is a dapgerous CORstat allliduncertaincul'"rents a,nd In a atmosphere, it is the master's¢luty to make use at the first opportunity of all his available means provided for correoting by observation the errors of dead reckoning; and for either to ship or cargo, resulting, from his neglect to do so, the master is directly responsible to the persons injured. In this case the'inailter was held. negligent (illor not making such change of course as was necessary UP01;1 .his own estimate of his position; (2) noli th,e using the alidade in order to correct his erroneous estimate of position.
In Admiralty. Libel against the master of the City of Para for damages caused by the stranding of the vessel. Decree for libelant. George A. Black, for libelant. Hoadley, Lauterbach & Johnson, for respondent.
BROWN, District Judge. The above libel was filed by the insurers of a part of t4Ei cargo on board the steamship City of Para, which stranded on a reef about H miles off the southwesterly 'point of Old Providence island. at 10:24 P. M.ofMay 17, 1888, while on a voyage from Aspinwall to New York. Having paid the loss, the libelant sued the respondof the steamship, on the ground that the stranding was ent, caused by the master's neglect to take proper precautions to keep away from that dangerous coast. The question of negligence in navigation was amonK the issues presented to this court upon the trial of the petition of the Pacific Mail StealTIship Company, as owners of the steamer, for a limitation of their liability to cargo owners in respect to this stranding. On that trial the present defendant was a witness fOr the petitioners to
UNION INS. CO.
disprove negligencej but the court found that there was in the navigation of the ship in not bearing away sufficiently to port when the island was made a half point on the steamer's port bowj and in not verifying, by simple and easy methods of observation and calculation, the actual distance of the island, which was much less than the master supposed; and because the master relied upon his mere estimate and judgment of his position instead of verifying it by such calculations and observations as would quickly have shown him the truth. The Oity of Para, 44 Fed. Rep. 689. Upon the hearing of the present case the facts proved are substantially the same as beJorej except that it does not appear that at 5 P. M., before the stranding, the position of the steamer was accurately 'fhe master now testifies, on the contrary, that he had not obtained any accnrate observation since the previoJIs noon. The additional testimony taken in bohalf of the respondent shows in general the dangerous nature of the coast; that a prudent navigator, in going on the westward sideof Old Providence island in the night-time, would intend to give it a berth of about six miles, which the respondent testifies he also intendedj that the haziness of the atmosphere at that time made the estimate of the distance of land deceptive; that the currents of that region, depending upon the strength of the wind, usually run about north or northwest, varying from half a knot to two knots, or sometimes even more; and that up to the line of the coral reefs the water is so deep as to make soundings for the most part impracticable. Upon the additional testimony, I cannot find that the aspect of the case is substantially changed from that presented on the former hearing The master is not, indeed, to be held for error or mistake in the exer dse of his best judgment in the midst of uncertainties which there no means of correcting by observation. But when approaching a danger(IUS coast at night, in uncertain currents and in a deceptive atmosphere, it is the master's duty to make use at the first opportunity of all. the means provided f.or correcting by observation the errors of dead. reckoning. It is for the omission to make use of these means, and for this alone, that I am constrained to hold the master answerable. At 9:45 P. M. the southwestern point of the island was made half a point on the steamer's port bow, and was seen to stretch away like a black mass across to starboard. Reckoning according to the supposed speed of his ship from the position made by observation the previous noon, the master estimated his distance to be 12 miles from the island. HI' went to his cabin to prick out his position on the chart, and at 10 o'clock changed his course H points to port, namely, from N. by W. t W. to N. W. by N. t N. The captain stated that he estimated his speed at about 9 knotsj but in order to reach his supposed position 12 miles distant from the island from his position of the previous Doon, '(deducting a stop of three fourths of an hour,) he must, in fact, have counted upon a speed of about 9iknots, including, as he says, one balf knot for his estimate of the current, all sails being also set. Ten afterwards a further change of three fourths of a
W. J'N. In 10 minuteS bows of the vessettstrti(:k'ona comll'eef in less' than four fathoms of water, at a.'point HmilesW';S. W. from shore. During "the .39 minutes aftei-the land 1ttts, reported one half of a point off the port bow; no observationwaB'made with thealidade to determine the distance;. and the speed of unchanged. L I do n6t'ascribe nny fault.or neglect to the master in estimating his distanCe from the'island to be 12 miles at the time when the land was reported one half a point on his port bow. But if there was any call upon tllechart, as he testifies he immediately did, to' it certaihly'his duty also, to observe the course-which, upon his own assumption ofa.\distance 0f 12 miles, would',benecessary in order to carry him at iii reasohliblysaJe distance, namely,6 miles from the coast, would have required, at the supposed as he says be distance of 12 miles, that hisicourse should have been changed to N. W. IN.; that iS1 3t points to port, instead of H points. Had he made such a change at that time, he would in:fact, although but half the distance frOm the land that he supposed, have just cleared the reefs. Had the change of It points been made when the land was reported, instead of 15 minutes afterwards, and, had he been 12 miles distant, that ohange eVElllat that distance, according to .my plotting of the navigation, woult;i'havecarried bini only 2! miles from land, instead of 6 miles; and the 'subsequent addition8:1 change()f three fourths of a point miles away from the would not have been sufficient to carry him land. Upon themastel"s own estimate of his position, therefore, the courses which he took were not sufficient, even had they ,been taken at once, to ca.rry him half the distance from the shore that he now says he intended. This mistake could only have arisen' from great inattention to thachai't l or, entire neglect to ascertain from it ,his proper course. , 2. I think there was an equal neglect of duty in not making observationsby the ·sJidadeto verify his actual position. The ship was provided with this instrumellit, and by the use of it the bearings of the point of the island on the port or starboard bow lit different times could have been quickly taken, and with all the accuracy necessary for -tical purposes. . !tis stated in general terms for the defense, that the end af the island did not afford a sufficiently precise object for such I cannot give any weight to this excuse. The western. end was sufficiently marked. to enable its bearing on the port bow tobtildetermined, namely, half a point. Observations with the alidade would have shown the rapid change in, its bearing at short intervals. The tables prepared for giving the distance upon any two of such obsel'vatiorisena bled the approximate distance to be obtained very :quickly. l!:V.l1i81t' the' supposed distance of 12 miles, when the land ,was reportedaha'lf point on, the port bow, was the master's duty to port at 'least two poiIits, fora glance at the chart would show that. tha.t wa& nece!l$ary to' clear thed·eefs. Observations. with the alidade made five minutesa.part would have shown such a change in the angle of the-banring of the head of land seen, as to indicate that its distance
was only about one half what supposed. There was time for several such observations. All wou.ld have repeated the same warning, and spown the necessity of a much greater change of course to port. I must hold the master remiss in his duty, both fornot taking a. cou.rse more to port, which a proper consultation of his chart would have shown to be necessary on his own estimate of his position, and also for J:!.ot correcting his erroneous estimate of position by observations with thealidade. For losses resulting from such neglect,. either to ship or cargo, the master is directly responsible to the persons injured; and to the by subrogation, on it.spayment of the insurance. Story, Ag. §§ 314, 315. . Decree for the libelant, with costs.
(DisWlct Court, S. D. New YOTk. July 11,1899.)
BmpPING-DAMAGE TO CAllGO-INSUFII'ICIENT FITTlNGs-NBGLIGBNCB.
A cargo ot tea was delivered damaged by water which had been admitted to the hold ot a vessel through an open bolt hole in the water ballast tank. The court tounil that the damage proceeded either from the original insuffioiency ot a stan. chion, which the bolt had served to fasten, or ita bad condition or bad fastening at the commencement of the voyage. Held, that the ship, not the cargo, took the risk of suoh defect.
Libel for damage to cargo.
Decree for libelant.
Sidney Ohubb, for libelant.
Kirlin, for claimants.
BROWN, District Judge. On the delivery of a consignment of tea in New York in November, 1891, by the steamship Exe, 217 packages were found damaged. They had been stowed in copartment No. 2 and the damaged packages were in the lower tier, where they had been more or less wet by water, which, upon subsequent examination, proved to have come through an open bolt hole in the water ballast tank. The bolt had served to fasten the smaller stanchion some five or six inches from the principal stanchion over the keelson. This stanchion of iron, two inches in diameter, was found bent in the middle and loose at the bottom, the bolt having been drawn out of the hole where it had been fastened. The claimants contend that the bending of the stanchion, and the consequent drawiflg of the bolt were caused through the surging of the ship in heavy weather, that is, by a peril of the sea, and by the weight of the cargo pressing against the stanchion in the rolling of the ship on .the voyage. I am not satisfied of the sufficiency of this expla.