13 F. 394 -

894

FEDERAL REPOBTER.

I am of opinion that the only persons who can be held for damages are those who should have taken a license, and that they are those who own or have some interest in the business of making, using, or selling the thing which is an infringement; and that an action at law cannot be maintained against the directors, shareholders, or workmen of a oorporation which infringes patented improvement. The plaintiffs are to have 30 days to exoept to this ruling. At the end of tha.t time the order will be, judgment fOJ: the defendants.

a

TBllI

JOHN

W. HALL.-

CD/,tria OO'U'I't, E. D. P,nn'yloania. July 21,1882.)
ADHmALTY-CBUSItJNG 01' BARGE m DOCK-BuRDEN 01' PROOF.

A schooner at high water went into a dock, between a loaded barge and another schooner. There being insufficient room at low water for all the vessels, the barge on the fall of the tide was crushed. There was evidence that the superintendent of the dock had ordered the barge to drop astern of the entering schooner, but the testimony left it doubtful whether the barge could have moved, and whether there was room for her to lie astern of the schooner. Held, that the schooner having entered where there was insufficient room, was prima facie liable for the injury, and the proof having failed to satisfy the court that the barge could have moved, the latter was entitled to a decree.

Libel by the owner of the barge Halsey against the schooner John W. Hall, to recover damages for the crushing of the barge. The facts were as follows:
()nJune 26, 1878, the Halsey was lying at Pier 1, Port Richmond, loading. On the opposite side of the dock. at Pier 2, was the schooner Mellon. The John W. Hall, having been ordered to Pier 1, attempted to enter, the dock, but grounded and lay' RcrOilS the entrance. Late in the afternoon the Halsey finished loading, and about 9: 30 in the evening, the tide having risen sufbauled in between the Halsey and the ficiently to float the Hall, the Mellon. When the tide fell there was not enough space in the dock for three vessels to lie abreast, and the Halsey was crushed. On the part of libelant it was claimed that after the Hall had entered the dock the Halsey had not room to move out, and that, even if she' could have moved, there was not sufficient lengt,h of pier to have enabled her· to lie astern of the Halt On the part of the :J;espondent it was claimed that, by the rules of the port, the Halsey bEling loadlfl. was bound to drop astern of the Hall; that there was
*Reponed' by Frank P. Prichard, )l:eq., or the Philadelphia bar.

'l,'HE JOHN W. HALL.

895'

enough space between the vessels at high water and 8ufficiEint length of pier to have enabled her to do so; that she was ordered to do so by the dock superintendent, and that her captain promised to do so at the time the Hall entered.

1. L. Wilson and John G. Johnson, for libelant. Curtis Tilton and Henry Flanders, for respondent. BUTLER, D. J. The dock afforded insufficient room for respondent, in, under and the vessels there before her, to lie abreast. the circumstances, she is prima facie liable for the injury sustained by libelant, and must justify herself or be held responsible. She seeks justification in an effort to show that libelant should have moved out. Unless the effort is successful she is defenseless. Should libelant have moved out? She finished loading before 6 o·clock. Conceding it to have been her duty then to move out, if nothing prevented, it is a sufficient answer that respondent was in across and closed the. channel, and so the way. She had remained until near 100·clock. At that time,-when afloat,-she did not open the passage and invite libelant out, but, changing position slightly, crowded in. To expect libelant to go out, into the river, at that hour, was unreasonable. She was without motive power, and pared to lay outside the dock. Blame is not imputable for this want of preparation,-the nature of the craft, and the usages of its clas8, being considered. It is unreasonable to suppose that respondent could imprison her until such an hour and then order her out. The reason assigned,-that respondent woulU otherwise lose a tide,-is entitled to no weight. She had already lost a tide, and if she lost another it would be the result of her folly, or misfortune, in grounding. It did not entitle her to keep libelant in or drive her out at irrespective of circumstances. The regulationsof the port and orders of the superintendent or master, do not affect the question. The regulations must be reasonably interpreted. Theyno more required libelant to go out into the river at such an hour, than they did to go out when penned or wedged in. The orders of the superintendent or master will not justify encroachment upon another's rights. If libelant could have moved back and still laid within the dock, she, doubtless, should have done so. Whether she could move back after respondent entered, (she had no opportunity before, as I understand the evidence,) and whether there was room thus to lie in respondent's rear, is open to serious doubt. The testimony respecting both these points is in direct conflict. I deem it sufficient to say that in my judgment it was not proved either that libelant could move back, with the force at command, or that she could safely lay as suggested. The
   

396

REPORTEBt

testimony of Capt. Young, of the Mellon, a disinterested witness, who saw the situation and is competent to form a reliable judgment, is flatly against respondent on both points. It is possible, and I think probable, there were a few more inches space than the vessels occupied, at high water. From the situation when respondent entered, however,-the crowding, and necessity for removing fenders,the inference is justifiable that the unoccupied space, if any, was very small. With the vessels afloat and a few inches thus to spare, they would doubtless bind,-resting against each other in places, and in other places against the piers,-rendering considerable force necessary for the removal of either. Without speculating on thtl subject, however, it is sufficient. that the evidence does not prove the respondent's allegation in this respect. Did libelant promise to move out, as charged? If she did, it was not until respondent .was nearly in; and if therefore she was mistaken ability to get out, the promise was unimportant,-as it respecting did not mislead. But did she so promise? Capt. Hudson and his mate say Capt. Gallagher promised to move out when they should get in, as they were crowding by. This is distinctly and positively denIed by Capt. Gallagher; and when his situat.ion and conduct, at the time and after, are con:;Jidered, the probabilities seem to be with the denial. Capt. Young says he heard Capt. Gallagher tell some one on board respondent, that he could not go out that night, that his men were all gone. Capt. Hudson's conduct and conversation, when forcing his way in·and after the accident, seem to show consciousness of wrong. More than OI:\ce, as he entered, he alluded to the danger of "squeezin,g,rand after his fears had beell realized, Capt. Young says, "he asked me, about an hour. after the boat was sunk, if I thought he was to blame ; and I told him that in case of a lawsuit I thought it would .· pretty hard with him. He said he thought he was not to blame; I said I thought he was. · · · He did not say the captain of the barge had said he would go out." The libelant must have a decree for his damages.

'rHE BESSIE MORRIS.

897

THE BESSIE MORRIS.(DiltTiee Goure, E.])., PennlyZfJania.

July 21,1882.)

1.

ADMIRALTY-COLLISION-BuRDEN OIl' PRoOF.

Where a vessel having the right of way is injured by a collision, the bur. den of proof .is upon the other vessel to show proper care; and if the testi. mony of her witnesses is contradicted, and is in conflict with the probabilities of the case, a decree will be entered against her. 2.
SAME-LoOKOUT-STEWARD.

It is doubtful whether a steward is a competent lookout, but he certainly is Dot when Ws attention is divided between such duty and the duties belong. ing to his employment as steward.

Libel by the owners of the schooner William Marsha]l against the schooner Bessie Morris to recover damages for injuries cause'dby a collision. The facts were as (ollows:
About noon on August 6. 1881, the Marshall, bound to Boston with a cargo of coal, was beating down the Delaware river, and when on a port tack about mid-channel collided with the Morris, which was sailing up the river light, with the wind free and directly astern. On the Morris the only man forward of the wheel was the steward, who was about half-way between the foremast and mainmast and between the cabin and forecastle, in which the officers and men respectively were at dinner, he being in that position to answer th,eir calls and wait on the tables. Libelants Claimed that the collision was caused by the fact that there was an insuffi!Jieht lookout kept on the Morris; that the approach of the Marshall was not reported until the vessels were close together; and that then the Morris, instead of passing under the stern of the Marshall, ported her wheel and came across the latter's b<;>ws.The respond, ents claimed that the collision was caused by the Marshall, when;on her board tack in mid-channel, and only about 200 feet from the :Morris, SUddenly, and without necessity. tacking and coming across the latter's bows on the port tack.

Edward F. Pugh and Henry Flanders, for libelant. Edward S. Sayres, Alfred Driver, and, J. Warren Coulston, for respondent. , Bu':t'LER, D. J. That libelant had the right of way, and respondoff,-unless ,the by disent was consequently bound to regal'ding ordinary rules of navigation, impropel'lyraninto is not only plain, but conceded by counsel. The. burden proof therefore, on respondent,-a very important fact in view of the conflicting character of the testimony. She allegeB that libelant prevented her keeping off, by suddenly and improperly coming-abQt.t,

of

-Reported by Frank P. Prichard, Esq., of the Philadelphia bar.