is, so far as it applies to this case, an authority in support of com· plainants) claim. There Judge Wallace says:
'''l'he plaintiffs might have copyrighted the cut :lS an independent subject ()f copyright. If they had done this, a reproduction of the copyrighted thing would have been piracy, however innocent the defendants might have been of intentional weong."
Furthermore, as the defendants authorized the infringing act, knowing that there was danger on account of the copyright act, and on condition that the photogravure company was to take the risk, they may properly be considered to have intended the result of such act. The act of infringement having been committed in this country, the subsequent acts abroad are immaterial, except upon the question of damages. Ketchum Harvester Co. v. Johnson HarveAter Co., 8 Fed. Rep. 586; Goucher v. Clayton, 11 Jur. (N. S.) 462. The infringement having been established, the appropriate relief in a court of equity is by an injunction and account of profits. Gilmore v. Anderson, 38 Fed. Rep. 848. And "the court will grant an injunction without proof of actual damage." Reed v. Holliday, 19 Fed. Rep. 327. "The right to an account of profits is incident to the right to an in cOPJTight cases." Stevens v. Gladding, 17 How. 447. It appears that the defendants may have derived advantages or profits from having the infringing act done in this country. This question can only be determined by proceedings before a master. Let there be a decree for an injunction and an accounting.
'l.HE PACIFIO. THE S. B. POMEROY. (District Court, E. D. Michigan. October 17, 1892.)
CoLLISION-VESSELS ENTERING CANAL-EvIDENCE.
A schooner, the stern vessel in a tow lying near the lower entrance of the ship calla! at Sault Ste. awaiting the locking through of another vessel, was injured by collision with a steamer. The libel therefor alleged that the steamer calue up of the schoow,r with great speed, striking the dock, then boundin;; off and striking the schooner; and· was supported by testimony of libelant and of the crews of the schooner, the tug, and another vessel in tow, which was contradicted by the evidence for the defense. l<'rom uncontested facts and testimony of disinterested witnesses, unimpeaehed, it aVPfOared that, while the tow was moving up the river, the steamer was on her way to the dock, and came around under the stern of the schooner, and on her port side, between her and the dock. 'l'lle 'wind, about northwest, Yarying from 22 to 36 miles per hour, would strike ascending vessels on the sta.·board bow, and the starboard side of the schooner was expused to the full force of the wind and current. The injury to the schooner was confined to her plank-sheer, rail, and bulwarks. without any mark of the steamer's stem. The only damage to the stea:ner was the splintering of a Rtarboard fender, and she had no mark, or even abrasion of paint, on either side; and the jar of the contact was scarcely noticeable on the stea:ner. Held, that the cause of the collision was that the schooner suffered to drift, and the combined force of the wind and current carried her a,Jross the bow of the steamer, her rail and bulwarks receiving and yielding to her momentum as she rubbed along the fender of the steamer; and that the libel should be dismissed.
·'In Admiralty. Libel against the steamer Pacific .for damages by collision with the schooner S. B. Pomeroy.. Dismissed.' :, .
W. E:teonard, for libelant. Moore & Canfielll, for claimant. SWAN,District Judge. On the 10th day of May, 1890, between 5 and 6 o'clock P. M., the schooner S. B. Pomeroy, laden with 900 tons of coal, and the Canadian propeller Pacific, of the burden of 1,000 tons, came together in the River Sault Ste. Marie, in front of Kemp's dock at Sault Ste. Marie, Mich. The libel alleges in its third article "that, while lying at the entrance to the ship canal at Sault Ste. Marie, Michigan, * * * the steamer Pacific came up astern of the schooner S. B. Pomeroy with great speed, striking Kemp's dock, then bounding off and striking the schooner S. B. Pomeroy on the port side, breaking forty-two stanchions, breaking main rail, covering board, stringers, bulwarks, planking, monkey rail, timber head, and so forth." The testimony of the master and eight other persons adduced on thepart.ofthe schooner is that at the time of the collision the Pomeroy was the stern vessel in the tow of the steamer George L. Colwell, which also had in tow the schooner D. P. Dobbins. The Colwell, Dobbins, and Pomeroy arrived near the lower entrance of the shi1> caml. between 5 and 6 o'clock P. M., where they were compelled to wait the locking through. :ofanother vessel. The (J()lwell steamed slowly to the government pier next to the entrance to the lower lock, and made fast to the pier about 250 feet below the lock. The Dobbins followed the Colwell, and also got out her lines to the government pier, about the her towline below the Colwell, while the Pomeroy lay in the stream her towline's length astern of the Dob· bins, at a distance of 30 to 60 feet away from Kemp's dock, and below the government pier, at which the Colwell and, Dobbins lay, held by her towline to the Dobbins. That the tow had been in·this position frQm 30 to 45 IUinutes, as vltriotisly stated by the witnesses for libel· ant, when the steamer Pacific, which had left the port of Sault Ste. Marie, Ont:,usl!lfl,lly called the "Canadian Soo," approached Kemp's dock at a speed of from 5 to 8 miles an hour, intending to stop as the dock with such force that she glanced off, and usual, but shot out into.' the stream, until she collided with the Pomeroy, as charged in the libel, doing all the damage for which recovery is 80ught. .. The story of the libelant is founded on his own testimony and that of members of· the crews of the Colwell, Dobbins, and Pomeroy. The defense is as strongly pleaded and supported by the proof as the libel. The answer sets forth'''fhat on or about the lOth day of May, 1800, tIie steamer Pacific was bound on a trom the port of Collingwood to the port of Sault Ste. Marie, ancI in the· afternoon of. day arrived :at Kemp's dock, on the south side of Sault Ste.Marie river, at the entrance to the canal. That when approach. ing said dock,. with her full watch on deck, and properly stationed, and attending to their retlpective duties, the watch perceived a vessel, which afterwards pl'oved to be the schooner Pomeroy, in tow Of a steam barge, and some distance to the north of the;Pacific and the center of the channel, 'going very
fllowly, and apparently intending- to go thl'ough the canal. That the Pacific ran alongside of Kemp's (j,)c!-, there b,clng plenty of room said vessel and said dock, and made fast to said dock, That, said vessel being some little distance away fron. said steaIllPl', out in the stream, some little time after said Pacific was m:Hle fm;t to the dock, said schooner, by reason of negligence, carelef;:mess, and inattention of those in eharl;e of )wr, was permitted to drift agnillst said steamer Pacific, striking her somewhere aft of the forward S.lid sehco1er still moved slowly, being drawn by her towline from the sream barge until she had p'lssell the Paeific. That during the whole time the said vessPl was in COIl1;\ct with the sti>amer,-in fact, some timp- before,-the steamer was fastened to the' dock; and that, except as herein stated, said steamer did not in uny way strike 01' touch said vessel."
The records of the weather bureau for that day show that the wind at Sault Ste. :Marie was about northwest, and varied in velocity from 22 to 36 miles per hour at the place of this collision. This would strike ascending vessels on the starboard bow. Several of the witnesses for libelant stated that there was little, if any, wind at the time of the collision, hut their examination showed that they paid but little attention to the course or strength of the wind, and their testimony upon this point is valueless. The evidence preponderates in support of the observations of the signal service. The natural tJffect of the wind and the current was to cause a vessel not under headway to drift down and onto the American, or southerly, shore of the dock line. There is a hopeless conflict of evidence upon import.ant points of the case, yet the data for its determination are afforded 'by uncontested facts. The Colwell, with her tow, arrived at Sault Ste. Marie at 5:30 P. M. As she drew near the canal, her speed was -checked as usual, and she moved slowly to the· government pier, where she made fast, waiting her turn to enter the locks, which were then occupied by a tow. At 5 :50 P. M., canal time, she moored about 250 feet below the lower gate, at a point about 700 feet above the upper end of Kemp's dock, which is next below the government piel" with which it forms an angle of about two points. The line of Kemp's dock is about east and Wffit, while that of the governmeni: pier above it runs about E. N. E. and W. S. VY. Kemp's dock is 441feet long. The collision took place about 150 or 200 feet from ito) lower end, or about 900 feet below the position oCCllpied by the Colwell. The Dobbins made fast to the pier at its junction with Kemp's dock, and some 300 or 350 feet below the Colwell's stern. Below the Dobbins, and out in the stream, lay the Pomeroy, held by her towline to the Dobbins. 'rhe witnesses for libelant state that the vessels had been in'these positions from 15 to 30 minutes when the collision occurred. About 6 :35 P. M., by Canadian time, which is an hour faster than Sault Ste. :Marie time, the Pacific left the International dock, on the opposite or Canadian side of the river, and made her landing at Kemp's dock, her regular stopping place. It will be seen, making allowance for the difference in time, that while the tow was still slowly moving up the river, the Pacific was on her way to Kemp's dock. The Colwell and Dobbins had both passed that point before the Pacific came around under the stern of the Pomeroy, and between the latter and the government pier below Kemp's dock, which was the Pacific's course. There was nothing in tlie situatiOn calling upon the 'Colwell or the Dobbins to note the position or movements of the
Pacific, but the masters and crews of both those vessels were naturally and properly giving their attention to their management, preparatory to a temporary mooring, waiting the opening of the lower gate of the canal. While they were thus engaged, the Pacific was rounding the stern of the Pomeroy on her way to Kemp's dock. She plUlsed up on the Pomeroy's port side, and, I am satisfied from the evidence of her crew and of Kemp, Lyons, Hutton, and Thompson,-the two latter being wholly disinterested,-reached Kemp's dock before the Pomeroy had got abre:ult of it, but after the Colwell and Dobbins had passed it, and had got out their lines to the government pier. This view of the order of events is sustained by the testimony of the master, first and second mates, .and two wheelsmen of the Pacific, all of whom were in positions which gave them unobstructed sight of the dock and the Pomeroy. If this conclusion rested upon their testimony alone, it would still be sustainable, because they are consistent with each other, and their opportunities for knowledge of the movements and relative poSitions of the Pomeroy and Pacific at the time of their ar· rival at Kemp's dock were at least equal to those of the same number of libelant's witnesses, who saw the collision from the Pomeroy, awl the tug Mary Virginia, which had the Pomeroy in charge, yet do not agree with each other .3S to the manner of the occurrence of the colliElion, nor with the best evidence of the direction and weight of the wind. 'l'he objection that the testimony of the Pacific's crew is inspired by their relation to the steamer is equally forcible against the credit to be given to the libelant, Smith and BarrlUl of the Pomeroy, and Green and Mann of the tug Mary Virginia; the two latter having as much at stake as the crew of the Pomeroy, for, if the defense is established, the fault of the collision might lie with their tug, which was cha,rged with the duty of caring for and handling the Pomeroy while she was awaiting the opportunity to enter the canal. The bias of the witnesses is equally as strong on one side lUl the other, but, laying out of consideration the testimony of the Pacific's crew, and treating that of Kemp and Lyons lUl equally biased, because Kemp was the 'steamer's agent at Sault Ste. Marie, and Lyons was his employe, (though I find nothing impeaching in the least the veracity of either Kemp or Lyons,) there remain two witnesses, Hutton and Thompson, wholly disinterested, who in all things confirm the defense. It was Thompson's duty, as watchman of the canal, to note the arrival of vessels at that point, and to see that they moored within prescribed limits. In the discharge of that duty he naturally obse'rYed the movements of the Colwell, Dobbins, and Pomeroy, and likewise the Pacific. He had no apparent motive to falsify, and his credit is unassailed. He testifies positively that the Pomeroy was suffered to sag into the Pacific after the latter had made fast to her dock, the Pomeroy being impelled by the strong northwest wind. Hutton,.a reputable butcher of Sault Ste. Marie, had visited the Pacific to sell supplies, and was watching the Pomeroy's approach for the same purpose. He saw her sag into the Pacific, and corroborates fully the claim of the defense and the testimony of Thompson. Aside from the testimony of the witnesses on the George L. Colwell, (which, because of her location and remoteness from the scene of collision, is valueless,) there is no
evidence from any impartial witness which impah's the force of this testimony. It not only comes from a neutral source, uncolored by interest, but it entirely accords with the conditions of navigation at the time of the collision, and equally with the resnlts to the Pomeroy and the Pacific. If, as is claimed by libelant, the Pomeroy had no headway, but lay heading into the dock with her stern projecting into the stream, her whole starboard side was exposed to the full force of the strong northwest wind and the current, while her spars and ril.!:ging aided her drift in shore and onto the Pacific. This effect of wind and Cllrrent were unnoticed by the master of the tug until too late to counteract it or avert its consequences. The whole lateral momentum of the Pomeroy and her cargo of 900 tons of coal was thu8 thrown upon her rail and bulwarks and the fender of the Pacific. As she moved along before the wind with her stern in the current and her bow in the eddy close to the dock, the effect of this force was to press her rail and bulwarks against the fender of the Pacific, and thus continue the damage until the vessels had separated. The facts that the Pacific suffered no other damage than the splintering of the fender, while the injury to the Pomeroy was confined to her plank-sheer, rail, and bulwarks, are strongly persuasive in themselves that the schooner was the aggressor. There was no breaking or indentation in her planking, nor damage to her standing rigging. There was no mark of the Pacific's stem anyw'here on the schoonf'r. There was no mark, nor even abrasion of paint, on either side of the Pacific. Her fenders on the port side next to the dock were intact. If she struck the dock while moving at the rate of eight miles an hour, as "Walters, Barras, and Mann have sworn, or even a.t half that speed, her hull and fenders on the port side of the dock must have shown some evidence Nothing of the kind appears. Libelant Walters of the contact. testifies that the Pomeroy at the time of the collision lay with her bow about 25 feet and her stern about 35 feet from Kemp's dock, and was about abreast of the office on that dock; that is, directly abreast of that part of the dock at which the Pacific landed. In a libel filed August 19, 1891,-about a week before the present libel was verified and filed,-libelant alleged that the Pomeroy was lying about 75 or 80 feet from Kemp's dock when struck, and that there was ample room between the dock and the schooner for the steamer to have made her landing in safety if she had been navigated with proper care and skill, but she was run at such high speed that, striking "the dock or the spring piles forming a, part of the same, said Pacific rebounded from said dock, and struck said schooner with great force, and so forth." The testimony is undisputed that there were no spring piles at this dock. Libelant further testifies that the effect of the blow was to force the Pomeroy ahead, and past the dock, until her bow struck a small lighter lying' at Kemp's dock, a few feet above the Pacific. All agree that the Pomeroy was beading somewbat· onto the dock line before and at the time the vessels collided. She was drawing 12 feet, and laden with about 900 tons of coal. The Pacific had a registered measurement of about 1,000 tons, and is 183 feet long and 35-foot beam. If the Pomeroy's stern, as claimed on the hearing, was about 35 feet from the dock, it is manifest tbat thQ effect
of·'fOl'cmg,1ihe'PacificbetweenthePomeroy and the dock ,would be to iI1'ive the schooner still further into the stream, and away from the It is possible,iishestruck the Pomel'oy near the mizzen rigging, that the impruct would swing the schooner's head to port,that is, oowards the dock; but the force necessary to produce that effect 'ono.'vessel of the schOoner's draft and lading, and to drive her stern iigainst wind and current, would have left unmistakable marks upon the hull of the sohooner, or more probably would have crushed. her planking. The' resistance offered by the schooner's rail and bulwarks fu the momentum of, a steamer of the size of the Pacific, mo'Ving at evenfonr miles an hour, was not enough to effect sl1ch a ehatige:inher position. Again, if the Pomeroy lay thus close to the the width of thePacific,-it is difficult to believe that Oapt.CitInpbell, a competent whose skill is unquestioned; and whGhad had nine years' experience in the navigation of the Pacific, wouldhave hurled his 'steamer at this' dangerous, speed between .the 'dock arid the schooner. If we accept the cIaimof the first libel, that the schooner lay 75 or 80 feet out from the dock, there was ample room for the steamer to land, and the testimony of the libelant is beset with the same inherent iiuprobabilities. Had the Pacific stmck antI bounded off the dock at a speed of eight miles per hour, as cha.rged,- or at half that speed, her momt'ntum would have crushed in the schooner's planking, and sunk her instantly. At any rate of speed whatever, the effect of contact with the dock would not have been to rebuff the steamer laterally into the schooner, 'a.<; must have been the case if the position of the schooner in relation to the steamer's landing is even approximately correct. With the steamer 'and the schooner in these relative positions, it would, have been impossible for the Pacific, if ahe had struck and rebounded from the dock, to hit the Pomeroy aft of the fore rigging. In short, both the probabilties and possibilities of the situation refute the libel. I am satisfied that the Pomeroy, while lying in the stream, with the tug alongside and in reliance upon the vigilance of the latter's crew and her power to take care and adopt seasonable measures to protect the vessel against the dangers of the situation, for which purpose the tug was suffered to drift, and that the combined force of the wind and (',urrent, which co-operated, carried her across the bow of the Pacific, the s'chooner's rail and bulwarks receiving and yieldingtothe momehtum of the vess81 as she rubbed along the fender lofthe Pacific. The master of the tU,g admits that he scarcely felt 'thejar of the contact, and the witnesses ,for the rer,;pondent state that it was slight, and scarcely noticeable on the steamer. This ob'viOllSlv would not have been the case had the steamer run into the schooner 'in the manner alleged in the libel. .A. decree will be entered dismissing the libel, with costs. ,
THE IRON CHIEJ'. '
THE IRON THE ,J. F.
(District Court, E. D. Michigan. October 17, 1892.) l.
COLLISION BETWEEN STEAM A.ND SAIL - NARROW CHANNEL SAILING VESSEL TO HOLD HER COURSE. FAILURE OJ!'
A schooner bound down the lakes, with a fresh northwest wind, having failed to obtain a tug to take her into the St. Mary's river, tacked across th;, broad southern channel, and entered the narrow northern one, rarely used by sailing vessels. A steamer with a barge in tow was at the time passing up this channel on a course about N. W. The steamer, supposing the schooner was beating up the lake, stopped to let her pass the mouth of the channel, but, when she put her helm up to enter it, started ahead, taking the northern side, in order to pass port to port. The schooner lost her swing, put her helm down, and collided ,,1th the steamer and the barge. Held, that the collision was the fault of the schooner,whether caused by her putting bel' helm down, by previous Improper handling, or by failure to obey her port wheel, and that her failure to hold her course ex· cused the steamer from the duty of keeping out of her way. The schooner was in fault in needlessly taking the narrow northern channel after the steamer had entered it. She should have awaited the steamer's exit, or taken the broad channel. When the schooner lost her swing, it was proper for the steamer to go ahead at tullspeed,-the only possible way of avoiding the collision.
8A.M:E-NEGLIGENCB IN NEEDLESSLY ENTERING A NARROW CHANKEL.
SAME-PROPRIETY OF GOING AHEAD AT FuLL SPEED TO AVOID COLLISION.
In Admiralty. Libel against the steamer Iron Chief for collision with the schooner J. F. Card. Dismissed. H. C. Wisner, for libelant. Shaw & Wright and H. D. Goulder, for the Iron Chief. SWAN, District Judge. About 9 o'clock A. M. of July 24, 1891, the weather being clear and the wind fresh from the northwest, the schooner J. F. Card, bound down, came into collision with the steamer Iron Chief, having in tow the barge Iron Cliff, both coal laden and bound to Duluth. The collision occurred a short distance above Round Island, at the head of St. Mary's river, and at its juno. tion with Waiska bay, and on the extreme northerly side of the channel leading between "Middle GrOlmd Buoy," No. 76, (red spar buoy,) and "Opposite Middle Ground Buoy," No. 79, (black spar buoy,) as these are designated and located in the United States official "Lift of Beacons, Buoys, and Stakes." Buoy No. 76 marks the north oCthechannel, and is 250 feet N. N. W. of Opposite MidNo. 79, which is on the south side of the channel. dle The courJ'. tpis channel is N. W. by W. 1-2 W. This is sometimes styled t4... Channel," because steamboats almost init. About half a mile S. by E. of black spar buoy No. 79 sf.i1nds Waiska bay buoy, a third-class can buoy, painted red, and marlllng the north side of a safe and much' wider channel than the first, with a depth of 16 feet. With this channel the master of the schooner was not unfamiliar. 'Phe J. F. Card was 137 feet long and 25 feet beam. She was laden with a cargo of block stone,