M'FARLAND
v.
SELBY SMELTING & LEAD (l0.
253
what broader than the claims in the original patent, but as the patentee did 1;ot sleep upon his rights, but returned his original ptltent to the patent-office inside of foal' months from the time it was granted, and askerl for a reissue with these claims, I think that the reissue with its broader claims is valid, under .1!iller v. Brass Co. 104 U. S. 350, and all of the later decisions pertaining to the subject by the supreme court. Reissue No. 8,025 is the other division of original patent No. 101,656, and is for a pumping d3vice intended to inject air into a receiver. It doe3 not appear from the record that this patent has been infringed by the defendant. A decree may therefore be entered for the complainant on original patent No. 10B,8DS, and reissueJ patent No. 8,0;30, and for the deto fendant in reissue patent No. S,025, and the case will a master for the statement of accuunt. '.
MoFA.RLAND
and others v.
SELDY SMELTING
&
LEAD
Co.
! nistrict Court, D. c..'Zlijornia. :May 28. 1883.\ 1.
A small stern-Wheeler, after giving the usual prelimin'lry signal, a long whIstle, WI\8 moving sloWly and ca: efnlly out fro:n her slip, ahout 2 o'clock in the whe:l her stern eame into cOllision. about 90 feet from the wharf, with a steamer tl1:It was pr,)c"edin" at a m .derate rate of speed, hut With n IOJ feet of the wharf. ll",d, that the steamer W,IS in fault in procet'ding so near to the wharf, and in not noticing the sh'ual of the stern-wheeler and aVOIding the collision.
Too
NElut \VIIARF-I"AUT,T.
2.
RUlE-FAILURE OF SMALL STEUN- ·WHEELER TO HAVE LOOKOUT AT STERN -D.UIAGE3.
It wa3 not l\ fault on the part of the stern-wheeler not to have a lookout at her slem, and, as no other fault is allcgeJ, the whole damage for the c,ollisioll must be borne uy the steamer. .
In Admiralty. lV. S. Goodfellow, for libelant. Chas. Page, for claimants. J. The facts upon which the libelant relies for a relief for a recovery are substantially as follows: On the twelfth of May, 11;82, about 2 o'clock r. n., the small stern-wheeler Pilot was slowly and carefully backing out from her berth on the north-westerly side of Jackson-street wharf, in this city, on a trip to Black Point. She had given the usual preliminary signal of her intention to come out by blowing a long whistle. She had proceeded down the slip until her storn was about 80 or 90 feet beyond or outside Jackson-street wharf, when a whistle was blown, to which bel' master at once replied by blowing bis own whistle, and ringing the bell.s to stop and reverse his engine. Defure lier stern-way was entIrely
254
FEDEnAL .REPOnTER..
overcome tbevessel was struck by' the steamer Bullion, and the .damage for which this snit is brought was inflicted. The master of the Pilot states tlultwhen he first saw the Bullion she was about 50 feet off, and that the collision oecnrred abonta minute afterwards. The libel avers that the Bullion was going at the rate of about miles an hour. .. . These statements are obviously inconsistent. The testimony shows, I think, very clearly that the speed of the Bullion previously to blowing her whistle did not exceed three and one-half miles an hour; probably it was less. She is represented to be one of the slowest boats on the bay. Her bottom was very foul, and she had a young flood against her. This latter circumstance is stated as the reason or excuse for her pursuing a course so near to the ends of the wharves. C. J. Young, a deck hand on board the Bullion, states that the collision occurred about five seconds after he saw the Pilot with her pilot-house opposite the end of the wharf; and although little reo liance can be placed upon estimates of minute intervals of time made under such circumstances, his guess is probably much llearer the truth than that of the master. As the collision occurred between two steamers, and in open daylight, it is obvious that one or both of them must have been in f a u l t . ' . Capt. Young, master of the Bullion, describes the accident as follows: He first sa'\' the Pilot when "he was about one-third north of Washington street, between that and one-half to Jackson street." Looking through the large doors in the shed, by which Jacksonstreet wharf is covered nearly to its outer end, he saw a wheel turning, and at once knew thr.t vessel was coming out cf the slip, the month of which he was approaching. He at once blew bis whistle, rang his hells to stop and reverse, and put his helm to port. rrhis tell,"-"inside of three seconds." was clone "quicker than it talws The boat obeyed the helm slowly. "She probably fell off to starboard between two and three points." The Pilot continued to back out of the slip, and, still retaining stern-way, struck the Bullion a little ahaft the foremast. Capt. Young asserts, with greatpositiYeness, that she stopped, but did not reyerse her wheel. In this statement he is contraclicted by e\'ery witness who was on board the Pilot, and I think is not corroborated hy any witness for the respondent. The statement is, moreoyer, intriilsically improbable. '''hen, on discovering that a vessel was coming out of the slip ahead of him, he blew his whistle, the master of the Pilot must huye known that a steamer was passing along the ends of the wharves, and that a collision was to be apprehended. The obviolls mode of avoiding it ,\"as to stop and reverse. This, he and all on board his \"essel say he in fact did; to suppose him not to have done so would be to attribute gross and inexplicable negligence. But Capt. Young's account of the accident is obnoxious to g.raye criticism. He states that "hen he first saw the Pilot's wheel tumina he0 _ \Vas one-third or one. ' . .
M'FARLAND V. SELBY
LEAD CO.
255
half the distance from Washington-street wharf to Jackson-street wharf. This places him, perhaps, 80 feet to the southward of Jackson-street wharf. The latter is 100 feet wide. The slip down which the Pilot was backing is 175 feet wide. The Pilot was about the middle of it. But assuming she was nearer to the Jackson-street than the Pacific-street side, and within 60 or 70 feet of the former, the collision must have been at least 240 or 250 feet to the southward. The Bullion was also, her master states, 100 or 115 feet out from the end of the wharves. If, then, she instantly stopped and reversed, as the captain states, it is difficult to see how the accident occurred. With regard to the speed of the Bullion, her master states that with a clean bottom she will go five knots. "In the condition she was in when the collision happened I don't believe she could go four." "With the tide against her, only one and one-half or two knots. Her bottom is now over two inches thick with mussels from end to end." 'It is difficult to see how a vessel not capable of making over one and one-half or two knots with the tide against her, could have faiied against a young flood to stop and acquire stern-way in a distance of 240 to 250 feet. And in this computation I hav9 not included the distance between the Pilot's stern and the end of the wharf when first seen by the master of the Bullion, and which, by the latter's account, must have been considerable. Nor have I taken into account any deflection of the Bullion's course caused by her putting her helm to port. The statement of the master of the Bullion, that the latter vessel was struck a little abaft her foremast by the corner of the Pilot's fan-tail, is corroborated by the testimony of his deck hands. It is contradicted by everyone on board the Pilot, and particularly by a young man who waS standing on the after-part of the Pilot's promenade deck and within four feet of her taffrail, and who observed the occurrence. But in the determination of this point we are not left to a comparison of the credibility or opportunities for observation of the witnesses on board the steamers. Immediately after the acci. dent the Pilot was inspected by the United States inspector of hulls and the inspector of boilers for this district. They found a deep indentation or gash in the port timber of her fan-tail, which they unhesitatingly concluded must have been made by the stem of some vessel strising her at nearly a right angle. The frame of the fan-tail seemed to haye been pushed over to starboard, and the large axle on which the wheel revoh"ed was so bent that the inspectors ordered it to be removed and straightened. The corner of the fan-tail which t!:J.e respondent's witnesses say struck the Bullion was found to be unin· jured. If to this we arId the fact that the Bullion sustained little or no injury,-"not two bits worth," as respondent's witnesses ad. mit,-no doubt can, I be entertained as to which vessel struck the other. It is contended on the part of the libelant that the course of the
256
FEDERAL REPORTEr..
Bullion was laid too near the line of the ends of the wharves, and especially to that of the J ackson-.:ltreet wharf, which is covered nearly to its extremity by a shed. Much testimony was taken as to the prevailing usage of steam 31'S, running along the city front, with respect to the distance from the wharves at which they commonly or may safely go. There seems to be no settled rule or practice on the subject, and the experts differ in estim'1te of what should be consirlered a safe distance. Steamers, it appears, frequently run by the wharves at no greater distance from tuem than from 20 to 50 feet. They seem in the habit, as one of tllem said, of taking their chances, and to be managed in many instances in an imprudent, if not reckless, manner. In the recent case of The Monticello, 15 FED. REP. 474-476, the court observes: "The state statute which re-quires steamers to proceed in the middle of the stream, the loeal rules, anLl repeateLl decisions of the cuurts. all unite in condemning navigation so neal' to the slips as dangerous al1llunjust.itiable. The matter II,IS been so repeateJly discussed, anll the ubligation of flteamers to keep away 1'ro:n the ends of wharves and ferry-slips so forcihly stated, that it is wholly to repeat it here." The Relief, Ole. 104; l'he Fa'vorita, 18 Wall. 591l, 601,002; 8111atchf. 539, 5H; 1 Een. 3U-39.
It is not necessary in the present case to attempt to determine the minimum distance from the wharfs at which vessels may safely proceed. 'rhe collision occurred-Unless the Pilot omitted some precaution she might have taken, such as reversing her wheel, on hearing the Bullion's whistle, or failed to keep a proper lookout, (a point which will presently be considered.) the Bullion was in fault, either in omitting to take means to avoid the accident when the Pilot was first observed, (an omission of which she was not guilty, according to the positive statement of her master,) or in being too near the ends of the wharfs. If she was, as the answor alleges, between 100 and 150 feet distant from them, then the result proves that between 100 and 150 feet was too nea.r. But it is extremely improbable that she was even as much as 100 feet from the wharfs; certainly not 150. If, as is established, I think, by the clear preponderance of testimony, the Pilot's stern projected beyond the end of the wharfs 90 feet when she was struck, it is clear that tho Bullion must have been within that (Estance from the end of the wharf. And even if at the moment of collision the Pilot's bow was nearly even with the end of the wharf, the Bullion's stern must have been within 123 feet of it, for the Pilot is only 123 feet long. The Bullion's midships was, of course, somewhat nearer, and this position the Bullion must have asilUmed after putting her helm to port and falling off to starboard some two and one-half points, when sho was 210 feet to the southward. I have already endeavored to show that this distance is overrated by tile master of the Bllllion,-a conclusion confirmed by the test:mony of the enGineer of the vessel. He states that he heard a blast
M'FAULAND V. SELDY
257
fmm a whistle, and immediately afterwards he received signals to slow, stop, and back which he obeyed, and that "immediately" afterwards the vessels came togetller; that after the wheel was reversed it did not make "more than one revolution,-not more than two;" "had not time to get stern-way on her." It is obvious that tile Bullion could not have made 240 feet before her wheels could turn over twice. I am satisfied that the Bullion was not 100 feet from the wharves, although the Jibel, somewhat incautiously, admits that she was at that distance from them. But whetber she was or not, the fact of the collision pl'Oves her to have been too near, unless it appcars that the collision was caused by this fanlt of the Pilot. In tht case of The 18 Wail. 60:3, the supreme court observes: "There is a gooa deal of testimony hearing on the point of the distant'e of the Favorita from the shore at the tillle of the collision; uut it is IInnect'ssa,ry to consider it, for the estimate of witness:>s in times of slldden peril, Ull such a subject, is mere conjecture, allll, necessarily, inconclusive. That the out of the path she should hrwe ocr:npierl, 11II./t improperly r;lose to the Bl'Ooklyn shore, is evident enOftflh, ber;a1tse buth ve,sels were in perilolls proximity the moment the ,lIanhass:tt emerged (rom her sUp. Had slle been at a suitable distance fro 11 the shore, or going' with a lIl"ltr'rially lessenml specJ, the collision WOLlld not hale 1H1iJpelltJll, a.d the in'l,tiry ari"es whether she alone must suffor for the lo"s that occlllTed."
These observations apply, mutatis mutrlndi3, with much force to the case at bar, except tllat no suggestion is here made that the speed of the Bullion was too great. Tile Pilot" belure starting, gave the usual signal that she was about to move out of the slip by blowing a long whistle. This signal, which should have given timely warning to the Bullion, and, if noticed, have enaLled her to avoid the acciuent, was not heard by the Bullion. No su.Iicient explanation of this apparent inattention and carelessness is ofJered. It may be considered to have caused the accident, even more directly than improper course of the Bullion. The only fault of which the Pilot is accused is the omission to station a loolwut on the after-part of the hurricane deck. That this is a useful, prudent precaution, and that it is generally taken by the larger boats, seems to be established. But the practice can hardly be considered general-certainly not universal-with the small sternwheelers which navigate the waters of the Lay. The distance between the pilot-house of the Pilot and the point aft, at which a lookout could llave been statione.l, was about 60 or 70 feet. At the rate at which the pilot was going this distance would be traversed in about 11 or 12 second5. In the larger boats, where the distance from the pilot-house to the taffrail is more than twice as great, an officer is often stationed at the stern when the boat is hacking out of her slip, e>lpeci,tlly at night or in thick weatller. Dut this lookout is v. 17,no.3-17
258
" FEDERAL REPORTER.
either tl{e captfLin, or other officer having authority to give orders directly to the engineer, and for this purpose a bell-handle is provided on the after-part of the deck, the wire of which leads directly to the engine-room. With the usual equipage of stern-wheelers the lookout would necessarily be an ordinary deck hand, perhaps of limited experience and intelligence. I am inclined to think that in practice the Pilot would not instantly and blindly obey any signal given by the lookout, but would wait the few seconds necessary to bring the approaching vessel within his own line of vision, and to enable him to judge for himself what measures to adopt. However this may be, I am clearly of opinion that the respondent has failed to establish such a generally recognized rule, with respect to lookouts at the stern of the smaller steamers on this bay, as would justify the court in apportioning thedamages for a failure to observe it. And especially is this the case when it does not appear that its observance would have had any material effect to avert the aocident. There was a lookout or a person looking out on the afterpart of the promenade deck-a position in some respects more favorable for observation than the corresponding position on the hurricane deck. Fj'his person noticed the Bullion at, at least, as early a moment as a lookout on the hurricane deck would have done. He at once notified the captain of the Pilot. The latter, therefore, had as early information of the approach of the Bullion as a lookout stationed by himself on the hurricane deck could have given. The master of the Bullion states that if the Pilot had had a lookout he could have seen the Bullion as soon as he (the master of the Bullion) saw, through the openings of the sheds, the Pilot's wheel. But he also says that he immediately blew his whistle. The captain of the Pilot had thus almost instantaneous notice of the approach of the Bullion, and nearly, if not quite, as soon as he conld have received it from a lookout aft on his own vessel. To this it may be added that the reproach of not having a lookout aft comes with an ill grace from the Dullion, for she herself had not a lookout stationed forward. The deck hands were on deck, but engaged in thr- performance of their general duties. I am, therefore. of opinion that the Bullion is liable for the whole damages sustained by the Pilot. A reference will be had to the commissioner to ascertain and report their amount.
TUllO
11M· .IlUn'l'AGU.
259
THE
MURTAGII.
(Distrz"ct Court, S. D. New York. . 3une·19, 1883.) 1. TUG Tow-NEGLWENCE-U:;;SEAWORTIIY BOATS. Where boats in a tow, hy their condition and their are obviously unfit to encounter the perils of a proposed trip, the owners of the tow and of the tug, Loth concurring in the trip, should be held liaLle in case of loss or d:.lInage.
SA)!E-TuIPS OF EXTI:A II.\ZARD.
The aL"ve rule does not necessarily apply to all trips, anout New York nay, of open-Lleck cOlll-Larges, but only to trips under circumstances of .wirlent hlvard. The owner of goods is l<>gallychr.rgeahle with knowledge of the ohvi()lls gen. eral character and description of the vessel in whieh his goods are shipped; and if he employ a boat obvionsly unfit for the trip, and loss happen thereby, as ag,linst third persons also char:!eable with negligence, he can rccover but half his damagcs.
3.
S.UlE-OWNER OF GOODS CHARGEAllLE WITH KNOWLEDGE.
4.
SAME-SHIPPER OF COAL.
An owner of coal, shipping it (In board an open boat, l1as a rIght to assume that necessary care and caution will bp, exercised, hath by her owner and by the tug, in 1I0t going out in hazardous weather; and if the latter do so, and the owner of the coal is not privy nor consenting tuereto, he lllay recover of either ·his whole damage. 5. SA)1E-HHODIAN LAW.
under the Rhodian law tIle shipper put gOOGS on an ala vessel at his own peril, by modern law he is protected by an implied warranty of seaworthiness; and, as against third persons, he can recover his full loss, unless her unfitness were actually known to him, or was a matter of such general notoriety that his knowledge or neghgence is presumed. SAME-ACTION FOR D.UfAGES-FomIER SUIT ARm.
The owner of a vesst'!, in case of injury to the vessel and cargo, may maintain an action for damage to both against another vessel causing. the injury; and after the latter has been once arrested, and given bail for the whole damage, if the owner of the cargo afterwards cause all claim on his account to be Withdrawn from the he cannot, ordinarily, again maintain an action against the same vesscl in rem, and arrest her a second time for the same damage. :KOT TO SUE-SECOND SUIT IN RE)!.
But where an agreement was made with the owner of the cargo that be would not hring suit, but that his elaim should he settled according to the event of 8 suit of the owner of th<> vcssel injured, and pursuant thereto he withdrew his claim as soon as he discovered that it was embraced in the other snit, held, that he miglIt afterwards maintain a second suit in rem pursuant to the agreement.
In Admiralty. Beebe, Wilcox & IIob7Js, for libelant. E. D. JIcCarthy, for claimants. BROWN, J. The libel in this case was filed by the owner of two cargoes of coal, on board the barge J. Stackpole and the barge A. J. Ser.is, to reco.er damages for the loss of the coal through the sinking of the barges on the twenty-ninth of November, 1879, on their way · from Port Johnson to New York, in tow of the steam-tug William Murtagh. The two barges were part of a tow of 10 boats which left the "Stakes" near Port Johnson at about 2 o'clock P. M., forming