THE BATTlE M· SPRAKER.
457
"The design for an easel herein shown and described, tbe same consisting of the upright standards of an easel cr()slling each other near their upper ends, and:representing the stems and flowers of the cat-tail plant Or flap'. " Ea8 made of natural cat-tails crossing each other near their upper ls ends are old. In view of this, the Crocker design must be limited to the modeM crossing the stan.dards described in the patent. In defend. ant's design the standards are not crossed,but they are held together near the top by a band, from which point, by bending, they are spread out so all to present a fan-like appearance. If Crocker had been the first to design an easel made of cat-tails crossing each other,it might properly be held that the defendant's design infringed from the general resemblance between the two. In view, however, of what was old, we have grave dOUbts whether the claim of the patent constitutes any invention; but, assuming the patentability of the design, we are clear that it must be limited to the mode of. crossing 'the standards found in the specification and drawing,and,the defendant not using any form ,of crossing the standards, there can be no infringement, and the bill must be dismIssed. .
THE HATTIE
M.
SPRAKER,1
STEBBINS 11. ,THE HATTIE
SPRAKER,
etc.
(Diatrict Oourt, B. D. New York.
December 27, 1886.)
1.
COLLlSION-EAST RIVER NAVIGATION-Two TUGs-TUG AND PIER-STATE STATUTES:""'FAILURE TO KEEP INMm RIVER-OVERTAXING BOAT-CLost!: APPROAOR TO OTHER STEAM-VESSEL-SHEER-CROWDING.
The tug S., up the East river with a car·float in tow along-side, sheered to withm 100 feet of the New York piers, preparatory to rounding to on the Brookly sh.ore against the tide. The tug N., which was also coming up river nearer the New York shore, had followed the sheer of the S. towards New Tp;rk, and, when close to the latter shore, found herself in a pocket, betwee.I1 th!l. S. and the piers; and, being unable to back, for fear of being thrown 'against the piers, went ahead full speed, and ran into the end of Pier 42, Whereby both the tug herself and the tow were damaged. Held, that the N. was in fauIt for violating the state statute, which required her to go as near mid river as may be; and also the statute which forbids a steam-vessel under way from approaching and passin? another nearer than 20 yards. Held, fwrth&r, that the S. was in fault for unJustifiably sheering, and the N., without even a warning whistle. The damages were therefore divided. ;The settlement by a tug of her tow's claim for damages is evidence of fault on her part, in a subsequent suit by her against another vessel. Without fault or liability, there would be no subrogation on payment of the tow's demand. Being held liable, as in fault, she is entitled to recover half of the tow'lJ dl£mages.
2
EVIDENCE-SETTLEMENT OF CLAIM-SUBROGATION.
In Admiralty. A. B:' SteWart, for libelapt. .' .Mosher,· foJ.' clahnarite. 1 Reported
by Edward G. Benedict, Esq., of the New York bar.
458
... nDER.l\.L REPORTER.
BROWN) J ·. On thA October, 1885, the steam-tug Hattie M. with a car-float about 200 feet long, lashed on her port side, was going up the East river, with a strong flood-tide, bound for Adams street, Brooklyn.' She had .passed under the Brooklyn bridge about onethird of the distance across from the New York shore, and, as she did so, sheered tdwards the NewYork shore, until at about Pier 36, she had run up to within 100 feet of the,piers, when she put her helm hard a-port, for the purpose of rounding to on the 6ppositeside of the river, against the tide. The libelant's tug, the D. K. Neal, had taken a canal-boat along-sideat Pier 6, for the purpose of towing her to NewtQwll creek, and came up river at the same time as the Spraker) but a little nearer the New Y01'kshore. She hadfollewedthe Spraker's sheer to the westward, and, when abreast of Pier: 38, partly lapping the Spraker, and within some four feet of her l andbeing also very near the. New York piers, she found herself unable to back, le8tshe might be thrown against the piers with the strong set of the tide; and, in attempting to go ahead full speed,. w.hile th,e Spraker was rounding) ran against the end ·of Pier 42, which projected further into the river than the piers below it, and by the force of the blow parted the lines which held the. tow, in consequence of which the latter drIfted ahead, and was damaged, as well as the tug. The owner of the tug subsequently settled with the tow for her damages, taking a receipt ·in fun,and claims' to' recover for both against the Spraker. ", '. ' . . '.. ' . . The eviden6lfpresents an entire coiltradiction between the witnesses of the two tugs.:.asto whether, below the Brooklynbridge,th,e Neal, or the astern, and was the boat. The circumstance, Spraker, how6ver,tha(th,El£prakerslowed shbrtly the Brooklyn bridge, which the.pleadings as well as the witnesses assert, and the testimony of witnesses that the slowing was caused by a Brooklyn ahead oftheSpraker towards the New York slip, in the absence of any other explanation ot' her slowing, satisfies me that the claimants"contention inthis respect is correct,alld that the Spraker tha,tbeen ahead, and thllt the Neal ca.meup so as just about had to reach the Spraker's stern while the Spraker was slowing; and that the Neal's did not remeniber anything about the ferry-boat, because she did. not interfere with the Neal, which was further astern, and the circumstance would therefore not be recollected by the Neal's .witnesses. Upon this finding of facts, it is impossible forme to hold the Neal . She was bound for Newtown creek. The state statute without required her t,ogo as neat the middle of the river as may be. There was. nothi.l;lglW prevent her doing so.. Instead of that, she continued from Pier 8 up nearly to the Brooklyn bridge, as her witnesses say', only about 200 feet from the New York shore, and, as I find, probably not exceeding 400 feet, at most; and when theSprak:er sheered towards the New York shore, instead of moving towardS the centeroftheriver, as she might and should have done, she kept upcin the inside of the Spraker, and. graduaJ]y overha\ll.ed her, but verysJ.owly, until she was. in a pocket,
459 whence she could not escape. Her going near the piers and violating the statute led directly to the a:ccident; and, sHe must therefore be held in fault. She was further in fault, also, for violating the state statute which prohihitEl a steam-vessel under way. approaching and passing another nearer than 20 yards. There were no special circumstances to render · this statute inapplicable. When the Spraker's continued sheer brought the Neal first within that limit, there was still time and room for the Neal to stop and obey the statute. The s,ettlement by the Neal, moreover, of the tow's claim for damages, is a, strong practical admission of her own fault. The libel alleges an assignment and subrogation oithe tow's claim. but no assignment is proved. The evidence does not show a purchase of the claim, but simply a settlement, with a receipt in full for all claims of damages. There can benosubrogation in favor of amere volunteerj but only in favor of one wbopays under some legal liability, and there could be no liability of ,We Neal unless there was fault. The U. S. Grant, 7 Ben. 337 j Acer v. Hotih1cWJ,97 N. Y. 395. The multof the Neal does not, however, excuse the Spraker from her own clear faults. From the time the two passed under the Brooklyn bridge, the Neal was somewhat lapping the starboard quarter oithe Spraker, and gradually gaining upon the The Neal was in the the situation of an overtaking and passing vesselj ,and,while the Spraker was entitled to keep her C011l1$6, she was prohibited from crowding. She continued her sheer without any attention to the Neal; so as to come unjustifiably and unnecessarily near the New York shore. The Neal could not have anticipated such a continuance of this sheer. I am entirely satisfied that the Spraker could have rounded to perfectly well, without occupying practically the whole of the river to make her tum. It is quite possible, as suggested by libelant's counsel, that the Spraker went nearer to the piers than she intended tonn consequence of the strong set of the flood-tide towards, the New York shore. She ,is answerable for any such miscalculation. It is not admissible that a vessel may swing in this way across the river, without paying any attention to other boats on her quarter; and, had she intended to go so near to the New York piers as to make'it dangerous to other boats inside and abreast of her, it was at least her, duty to give some signal of danger to other vessels thus put unexpectedly in jeopardy. No signals were given by either vessel, and no steps were taken by either to avoid danger until too late. Both were in fault, and the libelant is therefore entitled to half the damages to the Neall!ond her tow, and a reference may be taken to compute the amount.
460
THE Tmil (Di8trict. (JOU1't, REVERE.
1). ¥aasachuseUs.
December 28,1886.)
t.
a.
The ferry"boat R. started out of her slip when the steamer V. was directly opposite. '.{'he speed of the steamer had been checked by the stopping of her engines,but her headway had not entirely ceased. Her ability to maneuver was further diminished by the presence, close aboard, of one or more vessels Which itwas her duty to keep olear of. When the ferry-boat started out of her slip, her bow was astern.of the steamer. When clear of the slip she proceeded to cross the steamer's pows in a course, at full speed, Witll the exception of the startin/S whistle of the ferry-boat, no signal was made by. either vessel. "Both vessels, when a collision became imminent, endeavored to avoid it by reversing'their engines. Hiitd, that the steamer had done all that devolved upon her under the circumstances; that, as the ferryboat was a following vessel when the situation first opened, the steamer was not boun.d to foresee that, by a violation .of the rules of the road, the ferryboatwou14.become a crossing vessel; and that no duty to signal the latter as a crossing' vessel devolved upon t)le former. SAME-STEAMER AND FERRy·BoAT.
AND FERRy·BOAT-CROllSING AND FOLLOWING VESSEl, DISTINGUISHED-FAILURE TO SIGNAL.
A ferry'boat must not cross a steamer's path, when the latter is abreast of her slip, an,d is hampered in her ability to maneuver. If, upon starting out of the slip, the ferry-boat's bow is astern of the steamer, and if she SUbsequently crosses the bGWS of the .latter vessel, she will be considered as a following, not as a crossing, vessel.
.
Collision. Cross libels. L. S. Dabney, for the Venetian. T. M. l!abson, for the Revere. NELSON, J. These cases were cross-libels for a collision between the British steam-ship Venetian, of the Leyland line, and the steam ferryboat Revere, owned by the city of Boston, and employed on the East Boston ferry, of which the cityis the proprietor. The Venetian arrived in Boston on: the morning of March 25, 1886, from Liverpool. At half past 6 A. M. she was proceeding up the channel, between Boston and East Boston, in charge of a pilot, on the way to her dock in CharlestoW!}. Her courfle lay on the starboard or East Boston side of the channel. Her speed through the water, against an ebb-tide, was then about four knots. When abreast of the Elevator dock, which isthethird dock below the ferry slip, on the.East Boston side, her engines were stopped, and, by the time she was opposite the ferry slip, she was moving slowly, though her motion ahead had not entirely ceased. Another ferry-boat had just before crossed her bow, coming from the Boston side. A ship also lay at anchor in the channel within a hundred feet of her, on her pqrt bow. While she was in this position, just opposite the East Boston ferry slip, the Revere started out of the slip on a trip across the
lReported by Theodore M. Etting, Esq., of the Philadelphia bar.