UNION METALLIC CARTRIDGE CO. V. UNITED STATES CARTRIDGE CO.
(Circuit Court, D. Massachusetts.
DAMAGES-PROFITS ACCRUIlilG BETWEEN INTERLOCUTORY AND FINAL DECREE.
:Motion to recommit cause to master for statement of profits, to date of final decree, on machines enjoined subsequent to interlocutor)' decree, denied.
In Equity. . Browne, Holmes cf; Browne. and Wetmore, Jenner J; Thompson, for complainant. B. F. Butler, for defendants. LOWELL, C. J. After a final decree has been ordered, and after an appeal has been claimed, the complainants move to recommit the case to the master for a further. statement of profits, to bring the account down to the time of the flnal injunctioIl and decree. The master's account is made up to April 23, 18'7'7, and there are reasons of some validity for the omission of the complainants to move in the matter sooner. Some of the machines which the defendant has been using since April, 1877, being those concerning which the account is asked, were excepted by Shepley fiom the operation of the interlocutory injunction, and 'are' now enjoined by me upon evidence produced since the first decree was made. As a matter of convenience and economy it is often desirable to have the account taken as late as possible, to save further litigatiou. In this case there are many litigatetJ. questions upon which the supreme court must decide, and in my opinion the preponderance of convenience is against opening the case at this time, if I have power to open it, because such a course would, in all probability, postpone the appeal for a year, and there has already been more than enough delay. . The decree may be so drawn as to show that the decree is for prof. its to April 23, 1877, and that it is to be without prejudice to any claim for profits and damages for later infringement, though I suppose that would be the necessary intendment. Petition to recommit denied.
Jd'LAUGHLIN V. ALBANY & BENSELAER IRON AND STEEL CO.
RENSSELAER InONANJ> STEEL CO.
(Di8trict Oourt, S. D. Net/) York.
1. BILL OF LADING CoNSTRUED-ELECTION.
Under the following clause in a bill of lading, " in case consignees discharge cargo, 'or any part thereof, they are to be charged not 10 cents per ton, and to have four full working daYIil, after notice of arrival at dook of consignees .ofsaid boat, in which to discharge cargo," and providing for payment ofdemurrage; in case oflonger detention, s.'consigIleeJ,!.as an option to unload the cargo or not. .'
SAME-NoTIFICATION 'OF AN ELECTION.
Upon arrival of the boat,a notification that the cops:ignee would not u,J;lload it except in its. regular turn, and in that. cas.e 1"ould, pay no demurrage, is a ' . rejection of its right to unload under the bill of lading.
S:S.wE-UNLoADING IN TURN.
The final unloading of the boat by the consignee in its turn cannot bll' con,.strued as done uUder such right of election.
4. DEltWltRAGE. A captain is not entitled to demurrage for time lost in waiting to avail himself of a consignee's special facilities for !1nloading.·
.In Admiralty. J. A. Hyland, for libellant. Wm. C. Holbrook t for respondent. BROWN t D. J. All the claims in this case are agreed upon, except as ito claim for demurrage. This claim arises upon follow4tg in the bill of lading:
, "In case consignees discharge cargo, or any part thereof, theY,are to. be charged not to exceed 10 cents per ton, and to have four full working days, after notice of arrival at dock of consignee of said boat, in which to discharge cargo; and to pay master, for any time (exclusive of Sunday) boat is detained for discharging after the expiration of the said four days, five dollars perday, and at the same rate for portions of days."
The decision of this court in Tuttle v. Albany et Rensselaer Iron ana Steel Co., upon a bill of lading substantially identical with this t (see opinion by Choate t D. J.,May 23, 1879,) is, I think, controlling in this case. It was then held that upon such a bill of lading as this the defendant had an election, upon arrival of the boat, whether it would itself unload the coal or require the master to unload, as it was otherwise his duty to do. On arrival the captain was in this case notified that the defendant would not unload the boat except in its regular turn, and in that case would pay no demurrage, and a berth was offered the captain where he could himself unload if he did not accept that offer. The captain declined this