presents, no defense. TheWiard-Bllllock, denQt:relate toa harrow;or a harrow tooth, but to a plow-and, for attaching certain deviCes to the beam. There is a double flanged beam it is true; but here the analogy ceases; , The plate isinotHamped to the beam between the flanges,. it .ex:tends beyond the ;flanges; the standard is. not held in position against the edges ·of the beam ; it does not touch the beam. The bar of the standard is' grooved to fit a spline on the eyebolt which holds it in position. It is perfectly clear that this construction would not infringe the claim in question if made now for the first time and it is equally clear that it is not ananticipatiC\n. The second branch of the motion relates to an alleged mistake in the patent office; it being that t,he fifth claim was permitted division. Permission is asked to through an error in the take testimony upon this issue;' it being the belief of the defendant that the proof will show that the claim was issued byaclerical errol' and invalid., This motion is vigorously opposed by the coniplainant. The court is of the opinion that the' 'cause should not be opened to take this proof. , " First. It is exceedingly doub.tful if the defendant ha's niade a case for reopening the proof 'assuming thatthe:new vidence is relevant to any legal defense. The file:: was, of course, before the defendant l,tUd,there is no the.informatioll ,was not obtained counsel had prior to ,the former he!ldng, tbe communication with, the examining division, the decision could, as;well have appears in the Illovl'ngpapers. It been had:pefore, for seldom these cases tl;\at activity exerted prior to tbetriaJ, .will :not the which s\?-p-sequfIltly discovered. '. . Second. The court is familiar with no authority which holds that a patent regularly issued and valid on its face can be dechi.red void because of a clerical error of an examiner in failing to follow the local, . of practice in the patent om.ce.. The patent has expired ap.dit'wOutd seem an of discretion to sUbject the comt? the annoyance an'd expense'incident to opening the ell it! is than doubtful if the testimony wnentaken ean be of thl? to .... The ,decision'tai! final is a,dher.eGtqand the motion' to take' testimony as' to errors in the . ,. .
. f 'THE HAXBY. . (No.2.)
June, 30,.' 1s99.)
." No. 1:4.·
TO PROPERTY ON PIER., .... . ..'
struck against a pIer extending iuto navigable water, breaking 'it and eallsfng propffi'ty lylng thereon to fall into the water, where ltsankbeyond'l'ecbvery, thicdegal'injury'was done upon the pier, which is land, aJ!ldfuot in tlie water, and a suit to. recover. for the loss is not within of a court j)f admiralty.
On libet,' J. Rodman Paul" for libelant. Convers & Kirlin, for respondent. McPHERSON, DistriQt Judge. The injury complabled of was caused by a blow negligently delivered by the steamship when it,ran into a pier projecting into the Delaware river, and the question for decision is whether a courto! admiralty has jurisdiction of the action. Certain property of the libelant was upon the pier,-several blocks of concrete, some tools, and other materials,-and, when the blow was struck, this property was either hurled into the water by the direct impact ot the ship, or else dropped into tlle water, becaQ.se the, pier, was partially broken up and could no longer support it. Upon this point the averment of the ·libel is that the vessel into the pier with terrific force,soas to carry away a large portion of the pier. and to hurl into the water libelant's said blocks, molds, and tools, where they were irretrievably sunk and lost in the navigable waters of the Delaware river." Where, then, was the injury done in canteroplatiQD of the law, upon the land (the pier being land), or upon the navigable waters of the riyer? No doubt the case is upon the border line, but I incline to the view that the injury should be regarded as done upon the land. Taking the averment of the"libel in the sense most fa;vorable to ,the libelant, the blow struck by the ship. hurled the libelant's property into the water, it was there sunk and ir-, retrievably lost. Nevertheless, I think it must be held that the injury was done upon the pier. It was there that the wrongful violence WIl8 inflicted, and what happened afterwards,. namely, the sinking of the blocks and tools, was an unavoidable consequence due to gravity, and should be considered as an inseparable incident of the blow. In reasoning about these facts, it is possible to adopt the libelant's view that the ultimate damage was done in the water. But it would be quite as easy, and I think, in strictness, it would be more accurate, to say that the ultimate damage was done upon the land at the bottom of the river, where the property finally rested. The libelant does not complain that the blocks and tools have been broken or destroyed, but only that they have been put into a place whence they cannot be recovered. Precisely speaking, this place is land. The blocks and tools rest upon the soil, and, although the water partially surrounds them, nevertheless the point in space where recovery is thus obstructed is upon the land. But I do not put the case upon this ground. In my opinion, the legal injury was done upon the pier. Let us suppose for a moment that the property had been upon another vessel, and had been hurled into the water from its deck. In that event the libelant would scarcely have followed the property to the bottom of the river, in order to oust the admiralty jurisdiction by averring that the damage waS suffered upon the land there submerged. Why, then, shOUld the libelant be permitted now to deny that the injury was done upon the pier, and to follow the blocks and tools into the water, in order to esfablish the jurisdiction? .In both cases I think it would be more' reasonable 'to hold that, as the sequence of events was inevitable, the
95 FEDERAL REPORTER.
whole transaction should be regarded as taking place where ilie violence was inflicted. This is not in conflict with the decisions, as I understand them. A shot flred from a ship that kills a man onshore does a violent wrong on the land. ,So does a rocket sent off from a ship, if it sets fire to a house. Merely to start the bullet or the rocket does no 'The harm is done by what 'happens afterwards at a different place. The foregoing reasoning may perhaps smack of refinement; but refinement is hardly avoidable when a case like this comes up for consideration. Ii I must choose between subtleties, I prefer to .choose the subtlety thM regards a course of events as an indivisible whole when it cannot be separated in fact, rather than the SUbtlety that separates the events in thought, and treats them as if they cOlild be separated in reality. But if they are to be thus treated, and if the legal injury was not done upon the pier, then I see no stopping place, either in: the air orin the water, until the land is reached at the bottom of the stream; and, as already stated, if this is the delocality,' the admiralty jurisdiction does not attach. I think, also, that the case is ruled by Johnson v. Elevator Co., 119 U. S. 3881'7 Sup. Ot. 254. The injury there was done by the jib boom schooner that was being towedjn the Chicago river. The boom strock-an elevator upon the shO're,and did some damage to the building J. but the principal injuty wascaiIsed by the flowing out of corn into the river, and its consequent loss in the water. It was decided that a court otadmiralty had no jurisdi'ctiori; and, although it is urged by counsel for the present libelant that the decision is distinguishable, because !injuries were also sued for there that were clearly injuries done upon the land, the loss of the corn following as an dent, I am unable to sustain this position. It is no doubt true that damage to the building was sued for as well as the loss of the corn; but the injury to the building was and the value of the corn was by far the most significant item in the libelant's claim. Moreover, there is no sign, either in the record or in the briefs, all of which I have had the advantage of examining, that any such position was taken by counsel; and certainly the decision of the court is not put in any degree upon that ground. In my opinion, therefore, this controversy is not within the admiralty jurisdiction, and the libel must accordingly be dismissed.
THE ST. GEORG.
(District Court, D. South Carolina. June 28, 1899.) L
SHIPPING-INJURY TO CARGO AFTER DISCHARGE-CARE REQUIRED 011' CABlIIER. ,
The, every contract of affreightment is the engagement to dellver the goods to the consignee in good order; and prOVisions of a bill of lading' that the goods shall be' received by the consignee as fast as the " steamer' ,can deliver them, and that they shall be "at consignee's risk after they leave the ship's deck," cannot be so construed as to relieve the carrier from the duty. to exercise reasonflble care to protect the goods from 1njuryunder illl circumstances until their actual delivery, and until tlJ,8