THE, GOLDEN GATE.
AMERICAN BELL TEL. CO. et at v. McKEESPORT TEL. CO. et aL (Circuit Court, W. D. Pennsylvania. August 21, 1893.) No. 20.
PATENTS FOR INVENTIONS-PRELIMINARY INJUNCTION-EFFECT OJ' DECISION OF SUPREME COURT OF UNITED STATES.
A decision of the supreme court of the United States, sustaining a patent, must be regarded as conclusive, upon a motion for preliminary injnnction.
In Equity. Suit for infringement of letters patent. for preliminary injunction. Granted. J. J. Storrow and J. I. Kay, for complainants. W. Bakewell and John McDonald, for defendants.
ACHESON, Circuit Judge. Alexander Graham Bell's second patent, No. 186,787, dated January 30, 1877, here sued on, was sustained by the supreme court of the United States in The Telephone Cases, 126 U. S.. 1, 8 Sup. Ct. Rep. 778, as to the 3d, 5th, 6th, 7th, and 8th claims. Now that decision must be regarded as conclusive, upon the present motion for a preliminary injunction. Purifier Co. v. Christian, 3 Ban. & A. 42, 51; American Bell Tel. Co. v. So'Uthern Tel. Co., 34 Fed. Rep. 795. Infringement by the defendants of said claims is, I think, clearly shown. Indeed, in the affidavits submitted on the part of the defendants, it is not alleged that the telephones used by them differ materially, as respects the features here complained of, from the telephones which were adjudged by the supreme court to infringe the patent. A preliminary injunction, therefore, must be granted against the McKeesport Telephone Company and the other defendants who are citizens of Pennsylvania.
THE GOLDEN GATE. ATLANTIC COAST STEAMBOAT CO. v. THE GOLDEN GATE. (District Court, D. New Jersey. :July 13, 1893.)
SALVAGE-WHAT AMOUNTS TO SAI,VAGE SERVICE.
The steamer Golden Gate, while proceeding to her wharf at Atlantic City, having become disabled by the breaking of her rudderhead, at about 2 o'clock P. M., cast anchor, and signaled for help. The sea at the time was rough, and the wind blowing from the northeast at the rate ot 20 or 25 miles an hour. 'l'he steamer Atlantic City, then lying at her wharf, about a mile distant, in response to the signals, proceeded to the assistance of the disabled vessel, and, after several attempts to tow her, cast loose, and left hel' in her original position, Hekl, that the assisting vessel, having failed to render any successful BeI'Vice, was not entitled to salvage. Subsequently, at the request of the owner of the disabled vesse), the Atlantic (",'ity again proceeded to the assistance of the Golden Gate, which
SAME-TOWAGE SERVICE-STALE CLAIM.
half or three-quarters of a mlle, notIcIng the approach of a sister steamer of the dIsabled vesse4 belonging,: to the same owner, the towIng steamer cast oft, and rendered no furtller service. No claim for service was then made, but, a dIfficulty hav!D.g arisen between the owners of the two , ,aQQut a, year .. owner of the.. Atlantic City claimed $500 tOr'lililJ.vage. Held, that whD.e the claIm dId not commend Itself as a. just anI!. fall', demand, -yet the owner ot the Atlantic CIty was entitled to towage servIce, the amount of which, If the parties falled to agree as to the same, should be a'scertained by a reference.
l:wmd.. b.,.'\1Dg moderated,: ;8J;l4, afte.- towing the Golden Gate, -abouti()ne-
wall not then In peril, the sea then havIng become quIte calm, and the
In, Libel by the Atlantic Coast Steamboat Company against the steamer .Golden Gate for salvage service. Decree for libelant. H. H. Voorhees, for libelant. A. Hugg, for claimant.
,FrO¥! the evidence in this cause it appears that the steamer Gate, on the 27th June, 1891, at in the afternoon, while proceeding to her wharf at Atlanti.c', Clty, N. had the, misfortune to break her rudderhead, and so ,her rudder unmanageable and useless., At the quite· rough, and the wind was blowing from the time the northeast rate 0120 or 25 miles per hour. As soon as the accident occurred' she let., go her anchor in about 12 or 14 feet of water, and was immediately brought to. She anchored about 25 yards away from a sand bar" which lies nearly opposite the channel buoy. . As soon as she was brought to by the aneb,or, she either . blew her frM.uently, as testified by some of the, witnesses, or hoisted her flag, as testified by other witnesses, as a signal that she needed assistance. The whistles were heard or the signal was seen by the' Atlantic City, a steamer lying at one of the wharves at Atlantic City, and about a mile distant from the Golden Gate. She immediately went to the assistance of the Golden Gate, and after some effort succeeded in getting a hawser to her; but for some reason, concernlng which there are contradictory st.'ltements, she was to t9w her., After one or two trials theh:;twser was cast loose, and the Atlantic City returned to her wharf, leaving the Golden Gate :where she' found her, and without rendering any assistance. Later in the afternoon the owner of the Golden Gate made a special request of the captain of the Atlantic Oity to tow his disabled vessel up to her wharf. By this time the sea had become quite', calm, and, the wind had greatly moderated. The At· lantie Oity again went to the Golden Gate, without difficulty passed a line to her, and then towed her about one·half or three-quarters of a mile towards her Wharf, when, noticing that the Florence, a sister steamer to the Golden Gate, and belonging to the same owner, waseoming down to tow the Golden Gate, the Atlantic City cast off the towing hawser, and rendered, no further service. At the timen'O:elaim for service rendered was made by the Atlantic City, but 12f1nOilths after, a difficulty having arisen between the
THE GOLDEN GATE.
owners of the two steamers, the Atlantic City made a claim of $500 in the nature of salvage. It will be noticed that the first effort to assist the Golden Gate was a failuTe. The Atlantic Oity, from some cause, was unable to tow her to her wharf. At the time this effort was made the Atlantic City was a volunteer, and, had it been attended with success, it would have been the basis of a claim for salvage, assuming that the Golden Gate was within reasonable apprehension of danger. But an indispensable ingredient of a salvage claim is that the service rendered has contributed immediately to th(' rescue or preservation of the property in peril. Salvage compensation will not be decreed unless the vessel in fact was saved by those who make the claim. While attempts at rescue are meritorious, and to be highly commended, yet, unless success follow the attempt, no claim for salvage can be allowed. These principles, well established, seem to bar this claim so far as the first attempt of the Atlantic City is con· cerned. Admittedly, that attempt to render assistance to the dis· abledvessel was a failure, hence for that no salvage can be granted. It has been assumed that the Golden Gate was in reasonable apprehension of danger at this time, but the evidence is not satisfactory on this point. The burden of proof is on the libelant, and it can hardly be said that it has been properly met. 'l'he opinion of witnesses on the part of the libelant a<re purely speculative, and in opposition thereto the naked fact remains that the Golden Gate laid for hours where she was hove to, securely held by her anchor, without encountering any peril other than the ordinary peril of the sea. But it is not necessary to express a positive opinion upon this part of the case. It is immaterial on the view which has been taken of the facts. The second attempt to assist the Golden Gate was made under different circumstances. The Atlantic City was not in this instance a volunteer. She was expressly engaged by the owner of the Golden Gate to tow his disabled vessel to her wharf. Success is no longer a criterion for the allowance of salvage compensation; and, besides, it is admitted that this effort was partially successful. But the difficult:r with the libelant's case is that there is not a particle of evidence that at the time of rendering this partial service the Golden Gate was in the slightest peril. The sea was quite calm; the wind greatly moderated; no danger was apparently hovering around the disabled vessel; she might be said to have been almost in her home port; her situation visible to all; no alarm felt by anyone, least of all by those on board. Such circumstances would not justify a claim for salvage compensation. The services rendered by the Atlantic Oity were simply towage services. For such service she is entitled to fair compensation, but beyond that nothing. It is proper to add that this· is very nearly in the category of a stale claim. No demand was made until a year after the rendition of the alleged service, and even then seems to have been resurrected as a sort of counterclaim to a demand previously made upon the
the Atlantic City by the owner of the Golden Gate. Eyidently the service rendered was not regarded by the Atlantic City as especially meritorious, or entitled to salvage compensation, until pressed· for the payment of a debt alleged to be due, as stated. It does not commend itself as a just and fair demand, under the circumstances.. If the parties cannot agree upon the amount to be paid for tow· age service, let there be the usual reference to ascertain what it ought to be.
LIGHTERS NOS. 27 AND 28. B. H. HARMON LUMBER CO. v. LIGHTERS NOS. 27 AND 28 et aL (Olrcu1t Court ot Appeals, NInth Circuit. August 15, 1893.)
Appeal· from the District Court of the United States for the Northern· District of California. In Admiralty. Libel J)y the S. :a Harmon Lumber Co. against Lighters Nos. 27 and 28 (John E. Whitney, claimant) for materials furnished to . the lighters. The district court dismissed the libel. Libelant appeals. AffirmeP. H. A. Powell, for appellant. Andros & Frank, for appellee· . Before McKENNA and GILBERT. Circuit and HAW· LEY, District Judge.
HAWLEY, District Judge. This is an appeal from the decree of the district court for . the northern .district of California, dismissing the libel against Lighters Nos. 27 and 28 for the price of lumber furnished in the construction of bunkers on said lighters, on the ground that there was not sufficient evidence in the case to show that the lumber was furnished on the credit ·of the vessels. From the record 'it appears, among other things, that John E. Whitney, the owner of the lighters, (claimant and appellee herein,) . chartered them to Leale& Shirley; that one Sheerin had a con· tract with Owens IBl'os., who. were bu.ilding a sea wall, to furnish them witp,;rQck; that .Leale & Shirley had a; subcontract with Sheerin for the transportation of the'rock; that they used the lighters in the transportation ,of rock from San Quentin to the sea wall at San Francisco under this contract; that the owner of the vessels had no intere$t in this matter; that the Owens Bros., under their contract, di!3charged the rock· from the lighters, and