BJORKQUJST VI'OERit'U!f STEEL RAIL CROP ENDS.
111'
But, if I am light in'my construction 'o{the patent, this no answer. Such a cistern; if made since the patent,would have been clear infringement on the patent as I have conIt. Having been made prior to' the 'plaintiff's inven'vention, it must, of course, be held to have anticipated it, and compels a decision that the patent is void for want of novelty. . This view of the case renders it unnecessay to consider any other of the various questions presented. The bill is dismissed, with costs.
is
a:
BJORJtQUIST
v.
CERTAIN STEEL
RUL
CROt>
(District Court, D. Marl/land. September 7, 1880.) : 1. CHARTER-PARTY-
DEMuRRAGE,:'-A l'The Cargo to be loaded and' discharged with all 'quick dispatch, 'as fast as the captain can .recelY8 and deliver." Dela, tJiat the charterers were liable for demurrage where the ves,sel W\l<S, fj:0U!the crowdeqcondition (he port, delayed in a berth. '.' . . . " . ,\ I ,
jInAdmiralty,' Libel for Demurrage' Brown <X Srnith, for libellants. 'Cowan'<X Cr088, for respondetits. ;MORRIS, D. J. The Russian bark' Bacchus, of which libellant is master, was chartered to bring a. cargo of' steel rail ends from Antwerp to Baltimore. She arrived in the }Jort of Baltimore on the fourth of December, 1879; and was ready to discharJe on the 5th. The Baltimore & Ohio Railroad Company was to act on behalf of the consignees in receiving the cargo, and notice was given on the 5th to its foreign freight .agent, who said that he already had information that the vessel had arrived, and had notified the holders of the bill of lading. The railroad agent referred the master to the company's wharfinger, who said there would be some delay, but that he would do the best he could, and would send a tug for the bark as soon as the berth for her was ready. The impor-
718
FEDERAL BEPOBTBB.
tation of iron had then recently very exceptionally increased in the port of Baltimore, and there was such an unusual number of vessels arriving to be discharged at the railroad wharves that berths could not at once be provided for them. The railroad company promptly leased additional wharves and laid down tracks upon them, but could not give the Bacchus a berth until the ninth of December, and did not commence receiving the cargo until the afternoon of the 10th. The libellant frequently, from the first day of the detention, notified the consignees, protesting against the delay, and now claims in this libel demurrage for four days. The charterparty under which this cargo was shipped appears to have been prepared with unusual care. The parties would seem to have well understood the contingencies which might arise, , and to have endeavored to provide against many of the disputes which do arise when such contracts are carelessly entered into. The stipulations with regard to discharging the cargo .are as follows: "The cargo to be loaded and discharged with all quick dispatch, as fast as captain can receive and deliver. If the berth at the railway pier at Baltimore is obtainable on vessel's arriving, the captain has no objection to discharge there-the freighter to have the option of keeping said ship 10 days on demurrage, over and above the said lay days, at £15 per day." This makes a very different case from one in which the charter-party is silent as to the discharging of the vessel, or only provides for usual or customary dispatch. The charterers expressly agreed that the vessel should have quick dispatch in discharging, and that they would receive the cargo as fast as the master could deliver it. They took upon themselves the risk of being able without delay to provide a suitable berth, and they cannot excuse themselves by showing that they have used reasonable diligence and have discharged the vessel within a reasonable time, considering the crowded conditio:t;l of the port. They made a definite and express contract, and they must show that they have complied with it. The respondents have endeavored to show that even admitting the delay of four days in giving the vessel a berth, that
o'IURE 'V. STEAM-TUG :BRILLIANT,
the improved and pecnliar facilities of the railroad for dis. charging iron into bonded cars, by which the delay of weigh. ing it in smaller quantities by custom-house officers is obviated, fully made up the four days, considering how long it would probably have taken to have discharged the cargo at an ordinary dock. As to the facts on which this defence is based, I am not satisfied; and, even if I were, I doubt if it could be properly maintained without showing some consent by the master to wait, in order to obtain the advantage of the improved facilities. No such consent is claimed. On the contrary, it appears that the master from the first, and almost from day to day, protested against the delay and urged his right to be at once discharged. He was entitled to have the iron taken away as fast as he could deliver it, and the fact that the consignees did fully comply with the contract as soon as they gave him a berth. is no justification of the delay in procuring one. I pronounce in favor of the libellants for four days' demurrage. at the rate of £15 sterling per day.
O'fuRE 'V. THE STEAM-TUG
BaILLuNT. July 16. 1880.)
(District Oourt, E. D. New York. 1.
NEGLIGENCE-OANAL-BoAT IN Tow OF Tuo-MEASURE OF DAMAGES.
A canal-boat, while in the tow of a tug, was negligently run upon a sunken wreck, without any fauIL upon the part of the canal-boat. Held, that the liability of the tug was limited to the cost of pumping the canal-boat from the time of the accident till she was taken to the dry dock, the value of any personal property on board the boat, and belonging to the libellant, that was destroyed by the aCCident, and demurrage for the boat from the time of the accident till the time she was let off the ways, after being l'epaired, at the rate of four dollars a
day.
T. C. Oampbell, for O'Hare. <t Hobbs, for the steam-tug Brilliant. BENEDICT, D. J. After examining the evidence in this case I have arrived at the following conclusions: The tug Bril. Beebe, Wilcox