95 FEDERAL REPORTER.
master's report and the authentic.ated copies of the decrees already iuevidence, the fact that all the profits are due to the patented inis. conclusively established. I permit complainant to file this additional evidence, both fOr the purpose of ending litigation, and, secOnd, because the question .of the admissibility' of the New York recOrd does not seem to ha've'been definitely settled before the master filing of the other parts of the New York record can hardlybea prejudicial surprise to defendant, and the question of its effect, if ,admitted, has been fully argued upon, the briefs of courisel.Even in the failure of 'detendant to make proper proof of the New York record for purposefi' \)f relying on res judicata as evidence, the authority of'the decision of the New York'circuit court and the circuit court of tippeals, derived from the official reports upon the point in issue, would be ofc6ntrolling weight in, this hearing, both on principles of comity and also as adjudications. entitled to the greatest respect. Duplex PrinTing-Press Co. v, OampbellPrinting-Press '& Mfg. 00., '37 U. S. App,' 250, 16 C. O. A; 220, and 69 Fed. 2,50; Grahd TrunkRy. 00. v. Central Vt. R. 00.,84 Fed. 67. . Interest will be allow.ed on the amount found due from January 1, 1893. The, defendant had full notice of complainant's rights, and chose deliberately to run'tb,e chances of the validity of the patent. I see no reason, therefore, for not including this usual element of damages in the
In re' LOUISVILLE & C. PACKET CO. (District Court,S. D. Ohio,'W. D. May 22, . No. 1,767.
SHIPPING-Loss OF BAGGAGE-LIMITED LIABII,ITY ACT.
Baggage-delivered by the purchaser of a ticket for passage on a. steamer to the agent of the vessel to be lllace(i on board, and which had been placed oua wharf boat to which the steamer was moored, where itwas destroyed, together with the wharf 'boat and steamer, by fire, caused without the privity or knowledge of the owner, had been "shipped," within the meaning of Rev. St. § 4283; and the 10SB is covered by the limitation of liability therein provided for.
This was a proceeding :in admiralty by the Louisville & Oincinnati Packet Oompany for limitation of liability on account of losses sustained in the burning of the steamer Big Sandy. Stevens & Lin,coln, for Louisville & C. Packet Co. Prescott Smith, for Danforth. THOMPSON, District Judge. F. N. Danforth, an intervener, moves the COurt to confIrm the report and findings of the clerk heretoforefiledhi'this case, and that. the restraining order heretofore made in this action, restraining Danforth from proceeding in an action agaip.stthe libelant in another court for loss of baggage S'ustained by hiInin the burning of said steamboat be dissolved. The master's ftndings are as follows: . . ,
"I find that on the 5th day of August, 18l;l5,said steamboat Big Sandy, while ly1J;ig at the wharf at the port of Cincinnati, Ohio, was destroyed by fire; that
the fire originated in, a wharf boat lying just helow the wharf boat to which said steamboat was moored; that the value of the wreck of said steamboat aLter the fire was two hundred and eighty ($280) dollars, and the value of the pending freight was nothing; that the property of the said cross libelant, F. N. Danforth, was on the wharf boat to which said steamboat was moored, and was destroyed by the fire which consumed said wharf boat."
rfo which was added the following agreed statement of the parties, to wit:
·"It is also agreed by counsel, and is to be considered a part of the above report, that Danforth, the owner of the baggage in question, had purchased his ticket for the Str. Big Sandy for Louisville, and had delivered the same to the agent of the Str. Big Sandy for being placed on the boat, and taken with the passenger on the trip to Louisville that day, and was destroyed in the same fire that destroyed the steamboat and wharf boat. This finding to be without prejudice to either party in the suit pending in the state court if it be held that the limited liability act does not apply. "Chas. H. Stephens, of Counsel for Packet Co. "Prescott Smith."
The libelant opposed the motion upon the ground that Danforth's loss is one covered by the limitation of liability provided for.in section 4283 of the Revised Statutes of the United States, which reads as follows:
"The liability of the owner of any vessel, for any embezzlement, loss, or destruction, by any person, of any property, goods, or merchandise, shipped or put on board of such vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity, or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner in such vessel, and her freight then pending."
Upon the findings of the master and the agreed statement of counsel, I think it is clear that the baggage had been "shipped," within the meaning of the section quoted, at the time of the destruction of the vessel, and, there being no evidence to show that the fire was caused with the privity or knowledge of the owner, the owner is not answerable for the loss over and above the value of the wreck of the vessel after her destruction and her freight then pending. The motion therefore will be overruled. Dill v. T'he Bertram, 7 Fed. Cas. 698 (No. 3,910); Constable v. Steamship Co., 154 U. S. 51,G2, 14 Sup. Ct. 1062; 2 Gould & T. Notes Rev. St. U. S. p. 535; In re Goodrich 'fransp. Co., 2G Fed. 715; In re I.ong Island K. S. Passenger & Freight Transp. Co., 5 Ff:d. 599.
POHTLAKD I·'LOl:lUNG-MILLS CO. v. WEIR et a!. (District Court, D. Oregon. July 28, 1899.)
SHIPPING-CONSTR1:CTIO;jf OF CHAHTER-CO}HnSSTONS.
A charter party provided for the payment of a commission on the estimated gross freight to the charterer and the brokers, balf each, "on the completion of loading, or should vessel be lost." The vessel was described in the charter as "now reported as per list Kew York March 2nd for ShanghaI." In a suit to recover the cOlllmissions it was shown that she arrived at Shanghai, discharged bel' cargo, and started in balrast for the designated port of loading under the charter. Held, that the commission could not be considered as merely a rebate from freight, since half of it