814
FEDERAL REl'ORTER.
ing particular liquids, but is for apparatus for storing and drawing liquids in particular modes. As to that part of the patent which covered apparatus for the waters and was held to be valid, the defendant infringes it, although he does not use the other part. The sixth claim of the patent is for a (lombination of parts. It would not be infringed but by use of that combination. The parts drawing syrups enter into the comthere the same office that the bination in the same way, and corresponding parts drawing "vaters do. The use of either is the use olthe combination, without the use of the other. The defendant, by using those parts for drawing waters, has used so much of the pat· ented invention. He must, therefore, on this showing as be adjudged guilty of a contempt. The act does not appear to have been at all willful or defiant, but merely the exercise of a supposed right under advice, taken and given in good faith, and is not considered to deserve punishment as such. He should merely make the orator whole. .The defendant is adjudged guilty of the contempt charged, and is sentenced therefor to pay the damages sustained by the orator thereby, to be ascertained by the master, to the orator, with the costs of these proceedings.
THE PENNSYLVANIA.-
(DistriCt Gour', E. D. Penns.lI/vania. Februl\ry 14, 1883.) 1. ADMIllALTY DIVIDED. l'RACTlCE ApPOR'rIONMENT OF COSTS WHERE DAMAGES ARa
Full costs in admiralty proceedings do not always follow a judgment for partial damages. 2. BAME-LrBELFOR COLLISION-JOINT NEGI.IGENCE.
Where a collision resulted from joint negligence and the lijlelnnt recovered a judgment for half damages, there being no cross-libel, or allegation of damage in respondent's answer, the costs may also be divided.
Motion for Allowance of Full Costs to Libelant. The owners of the schooner S. B. Hume recovered a judgment half upon a m;lel for collision against the steam-ship Penndecree reserved the sylvania, reported in 12 FED. REP. 914, question of costs, whereupOn the libelant moved for an allowance of full costs· . "Reported by Albert B. Guilbert, Esq., of the Philadelphia bar.
THE PENNSYLVANIA.
815
Alfred Driver and J · Warren Ooulston, for libelants. Full costs should be allowed where a recovery of damages is had and there is no cross-libel and no allegation of damage in respondent's answer, (Rathburn v. Steam-tug Thompson, unreported,BRowN, J., U. S. Dist. Ct., S. D. N. Y., second circuit; Sapphire, 18 Wall. 51; Rival, 1 Spr. 128; Denike, 3 Cliff. 117; Ma1'y Patten, 2 Low. 196; Baltic, 3 Ben. 195; Paterson, ld. 299; Avid, ld. 434; Oity of Hartford, 11 BIatchf. 72, 290; Vanderbilt v. Reynolds, 16 BIatchf. 85; Mason v. Steam-tug .lfurtaugh, 3 FED. REP. 404; William Oox, ld. 645; 9 FED. REP. 672; Syloester Hale, 6 Ben. 533 ; David Dudley, 11 FED. REP. 52-2; Excelsior, 12 FED. REP. 195; Abby Ingalls, ld. 217; James M. Thompson, ld. 189;) and also for printing brief, (Ne.ffv. Pennoyer, 3 Sawy. 335.) Morton P. Henry, for respondent Costs should be divided where partial damages are awarded and no equitable reason exists to the contrary. Vanderbilt v. Reynolds, 16 Blatchf. C.C. 90; Amer.ica, 92 U. S.432; Farnley,8 FED. REP. 629. The Sapphire, 18 Wall. 51, in whieh half damages and full costs were recovered, is not inconsistent, sinoe costs may be given for equitaible reasons. BUTLER, J. The the question to be one fot the court's discretion, determinable on equitable considerations"""that costs may be given a libelant who fails to recover, and withheld from another who succeeds-'-asks an award of full costs in' this 'case, on the ground that it is equitable, as he asserts, to do so whenever, as here, from collision-the result of concurrent, fault of .both parties-are sustaiued by the libelant's vessel, alone, and apportioned by the court-(in the abs6nce of special circumstances;) and that this is so' fully recognized in admiralty that such a disposition, under such circumstances, has become a rule of uniforin application. That no such rille until within recent years, I under;stand to be admitted. An el.pression in The Mary Patten, 2 Low. 196-9, is cited as the starting point of this departure,andseveral subsequent cases, in Massachusetts and New York, are referred to as -evidence of its general adoption. Whether such a rule has been adopted in Massachusetts and New York need not be consideted, in the view I entertain of the question. The expression in 'Ph'6'Mary Patten, cited as the foundation and reason of the is 'as follows:' "There is one aspect of the case [the question of .costs] \vhich does not appear to have received sufficient attention. If the loss is suffered by olie gel alolle, anu her owner lJi'ings his Huel, [lJeing gu: ity of COJlcunen't faUlt,] he'
816
BEPOBTER.
will recover half damages; and there is no reason why he should not, in gen. eral, recover full costs. It is the ordinary case of the prevailing party recovering less than he asks for, and if there has been no tender or offer of amends. and no equity peculiar to the particular case, it is according to sound and reasonable law, in all courts, that he should recover full costs."
With the highest regard for the learned judge who said this, and the consequent bias in favor of whatever he may say, I am unable to discover the justice of this position. The analogy invoked is drawn from proceedings at law, where the rule respecting costs is unbending, and its operation, frequently, inequitable. Were we to follow out the analogies on this line, the libelant, under the circumstances.stated, would recover nothing whatever-either of damages or costs. It is only by reason of the equitable principles on which admiralty proceeds, thatone guilty of contributory fault can recover any part of the resulting loss. The law, unable to gauge his just share in the responsibility, leaves himto bear the entire burden. The analogy invoked is, therefore, inapplicable, if not unfortunate. Because it is equitable to allow a recovery of half damages,under such ciroumstances, it by no means follows that it is also equitable to allow.a reooveryof full costs,-a large part, of which, generally, if not invariably, results from the libelal,lt's unjust and unsuccessful effort to recover double the amount of damages due. In every contested oollision case, wherein mutual fault is found by the court, each oontestant is in part, and to ex.actly the same ex.tent, suocessful, each establishing the fact of fault in the other, and thus escapiughalf the loss. Every such case contains two distinct issues,each involving precisely the same amount. What support, therefore, can be found in equity for requiring the respondent in such cases to bear all the costs-those re.sulting from the issue found in his favor, as well as those from the other found against him? If the respondent's vessel be also injured, it is conceded that such a requirement would be· unjust. But what possible relation does this circumstance bear to or injustice of compelthe question? How does it affeot the ling the respondent to bear the costs of an issue in which he has suc. eessfully resisted an unjust demand? If the respondent's vessel is injured, this additional loss is also divided. If it escapes injury, his loss,nevertheless, equals that of the libelant. In either event he bears half of all sustained. This half is what be is presumed to have inflicted. When he pays it, and the costs occasioned by denying his share in the fault, the demands of justice are fully satisfied. Ex.what proportion of the costs resulted from this denial and the
817
issue formed upon it, and what from the other, cannot genera.lly, if ever, be ascertained,-any more than can the exact proportion of injury resulting from the respective faults of the parties. The court does not attempt to ascertain it, but infers the amount result· ing from each to be equal, and therefore divides it, as it does the damages. The opposite view, urged by counsel for the libelant, would, in my jndgment, not only be inequitable but mischievous in other respects. It would tend to encourage unjust claims, by allowing the claimant to experiment at the expense of his antagonist without risk to himself. The libelant may usually know wh he is ln guilty of contributory fault, and doubtless does. If he may deny and conceal his fault, and demand and sue for the damages resulting from it, as well as from the respondent's, with immuriity from risk of disadvantage respecting costs, it is not too much, I think, to sa.y that the average libelant will do so. Nor do I think the alleged rule is any better grounded in authority than in reason. The uniform practice in this district has been against it; and I do not find the practice to have been different elsewhere,-unless, indeed, in Massachusetts and New York. Without citing other cases-(lIay v. Le Neve, 2 Shaw, Scotch App. Cas. 395; Foster ·v. Miranda, 1 Newb. 229; The Monarch, W. Rob. 21; The Rival, 1 Spr. 128; Lennox v. JVinisimmet Co. Id. 160; The Favo-rita, 4: Ben. 134; Vanderbilt v. Reynolds, 16 BIatch£. 80, 81, 86,90,91,) -in which this practice has been pursued, it is sufficient to mention The America, 92 U. S. 432, where this question of costs was before the supreme court,-aslately as 1875,-and where all the conditions necessary to the application of the rule here invoked, were present. No cross-libel was filed, nor did the answer or testimony suggest any injury to the respondent's vessel. And yet the supreme court,-(reversing· the court whose decree awarded full damages and costs,)--finding both parties in fault and awarding half damages, divided the costs. It is true the question is not discussed in the opinion, but the court was called upon to consider it; and the case therefore shows the court's understanding of the practice, and a decision bas·ed · upon it. The earlier case of The Sapphtre, 18 Wall. 51, decides nothing respecting costs; nor do I understand the general observations of the judge, dropped in passing, to be inconsistent with the practice sub· sequently followed in The America. The only question before the court was whether its mandate, previously issued, had been obeyer!. v.15,no.1l-52
818
REPORTER.
This mandate was to divide the damages. Nothing was said respect. ing the disposition already made of costs. The subsequent observations of the judgeon.this subject were mere suggestions in justification of the disposition made,-manifestly with no thought of passing on the question, or deciding anything. The circuit court, having determined in the first instance that the respondent alone was in fault, doubtless was still of opinion that he was mainly so, at least, and there. fore, probably, allowed its former disposition of costs to remainwhen entering the decree for half damages, as ordered by the mandate. Precisely what is meant by the expression in the opinion, "doubtless they [the costs] generally follow the decree," is uncertain. Is it that the disposition of costs, generally, follows the disposition of damages, -the former being divided between the parties, where the latter are, thus following the principle or rule of the decree? Or is it that full costs are generally awarded a libelant who recovers half damages? It must be. further observed that the judge points out a special and controlling circumstance in favor of the disposition there made. "The costs allowed libelant were incurred in his effort to recover what has been proved to be his just demand," says the judge. Certainly, if the costs were all incurred, as is here found, or assumed, in establishing the respondent's fault; and consequent liability to half dama,ges,-(no part in resisting the unjust demand for double this amoi.mt,-foundedon the false allegation of blamelessness in libelant,)-no other disposition of them could be made. In any view, however, that may betaken of The Sapphire, the force of the decision in The A merica must remain. unimpaired. I do not find in the case before me any special circumstance calling for a departure from the usual practice. The suggestion that the principal fault was the respondent's; that the libelant's was slight, and virtually unimportant, cannot be accepted. The libelant was guilty of willful disregard of the law, in a matter material' to the collision that followed. It was not the case of oversight, imprudence, inad vertence, or other ordinary negligence; but was a deliberate disregard of the statute. No .torch was on board; no provision had been made it. As seems to be too common with such vessels, this provision of the law was, doubtless, esteemed unreasonable and unnecessary, and th.erefore unworthy of regard. In recovering one-half the damages sustained and one·half the costs of ascertaining the controverted facts, the libelu.nt gets all he can justly demand.
TIm KETO.
819
THE
NETO
and Cargo.
(DiBtrict Court, S. D. Florida. March 2,1883.) L BALVAG:e-AYoun AWARDED.
Measure of reward in cases of salvage where the peril to the salved vessel was great depends upon the circumstances of the casll and the award is in the sound discretion of the court; it is not to be measured positively by the value of the property in peril, yet this may always betaken into account in determining the amount, as the owners are benefited in that proportion, and a small that are frequently percentage assists in compensating salvors performed where the property is so small that adequate remuneration cannot be given without a hardship to the owner. 2. BAME-PRECEDENTS.
Although each cause is disposed of upon its own merits, the discretion of the court should· be guided by general. principles, and in applying thom should, as far as practicable, where circumstances shOW a similarity of reasoning and c9DlDlon point of agreement as to amount, consider precedents ot adjudicated cascs. Amounts awarded in cited easel.
In Admiralty. Jeff. B. Browne, for libelants. G. Bowne Patterson, for respondents. LOCKE, J. This steam-ship laden with a valuable cargo of bound from Galveston to Liverpool, went ashore on Pulaski reef, a small rocky shoal, the most north-easterly. of the Tortugas group, the evening of January 30th. and when boarded by.the libelants, with two vessels and eighteen men, the next morning, was hard ashore on a rough and rocky bottom with the wind and sea pressing her further aground, with 16! feet of water under her bows, 17 \lnder her stern. and from 12 to 14 feet amidship. A ridge of rock with from, 12 to 14 feet, extended across at a short distance from her . stern, and there was a shoal with 15 feet off her starboard quarter, and another, with about the same depth, a little forward, oft the starboard bow. She was drawing before going ashore 18 feet 8 inches. She had struck. the reef at about right angles swinging around, and IIlUSt have surged backward and shoreward until she was in a very dangerous position. .The weather was bad, with a strong breeze and high .sea, and the libelants were unable to do anything the first day to assist her. She thumped somewhat heavily,and at times the sea broke over her. The next day, the wind and sea having somewhat abated, the libelants carried out a heavy anchor with chain, and an ll-inch hawser into deep water, took one load, 80 bales of cotton, about five miles t"
