shape and color of the bottle, the shield,illnd !tppel\rlj:l1.cl;fiof the label, are well and designedly adapted to deceive the ordinary pur. ordinary courseofpurchasillg in a sllil!ll qp,an· tit)'1 for immediate use. ,',{'he general effect ·is to mlilke suppose that hl:lis drawing his supply from a I,Iostlltter bottle, while SOllie of the details, of the label differ thC\se, of the genuine Jabel. If the oral admission of Theller was not in the case, it would be difficult: to conceive why the peculiar the shield anq of the label were used, unless the object was to imitate the trade-mark, and so deceive the pqrchaser, while at :the same purchaser is enabled upon, careful inspection of the bottle to see that it I is an imitation of ,the genuine article. From the admission of Th,elIet;;, it is obvious ,that his purpose was to deceive, thep1,lhlic, and the m0p.y shows that the resem1;>lance was adequate to accomplish the pose. The exoeptions takell to the testimony at folios 45,137 ,145, 14;7, and 364 are sustained. The record and decree, dated lSn, in the case of Hostetter & Smith against Arnold ThelIer and others,ill the circuit court of the United States for the district of Nebraska, Were offered only for the purposes named in fqlio ,257, are, (lxc!udf¥!, upoIl' the ground that the fact that4rnold Theiler was engaged in 1870 in manufacturing imitations of the goods, labels, and tm<l.e-marks now manufactured and pwned by the complainants, and was succes\lfulIy sued therefor, is not material to, the issues in this case. .Let there be a dec;ree which shall enjoin Arnold ThelIer and Cornell ThelIer against the use, of any labels or trade-marks made in colorable and deceptive imitation of the labels and, trade-marks of the complainants" and from' the use .of any bottles made in imitation of the bottles made or, used, by the complainants to which shall be attached labels or trade-tnarks made in colorable and deceptive imitation of the labels and of the plainants.
THE HENRY BuCK. STOKES'll.
THE HENRY BUCK.
(DilJtrtct Oourt.. D., South, Uarolina. April 9. 1889.) TOW.GE-NEGLIGENCE-RAFTS.
, A tug which undertakes to a raIt to a certain and whIch ,leave. it before it arrives there. without Ilscertaining whether the raft is made fast or not, and without giving any order in relation theret\), is negligent, and ia .. " responsible where the raft is carried away by the tide,an.d wind.,
.
In Admiralty. Libel by W. E. Stokes against the ages for negligence in tow.ing a raft. J·. P·. K.· Brya,'(/,'J' for libe1llillt.
. Henry· Buck,(!or
4am·,
FEDERAL :REPORTER,· vol.
38·
. J. N. Nathans, for respondent. SIMONTON, J. This libel is for negligence in towing a rrtft oflumber. Whatever doubts the older cases may have created with respect to the jurisdiction in cases of this character, the later cases have removed all of these. The F. & P. M. No.2, 33 Fed. Rep. 511. In dealing with the question of negligence, the tug cannot be treated as a common carrier. Negligence inust not be alleged, but proved. The Webb, 14 Wall. 406. The libelant was under contract to furnish lumber to E. L. Halsey, in Charleston. He sent a raft consisting of 41 bulls from Ool1eton county, on the Edisto rivet. The raft having; been delayed, the agent oflibelant, on 6th December last, sent the tug Henry Buck to look for it.· The tug returned,not having found it. On the 15th of December the agent of libelant called lip the tug's master by telephone, and, telling him that the raft had been heard from, requested him to go for it, and bring it to Charleston. On the 17th of December the tug went, and found 'the raft at Church flats,-a part of the coast inland navigation,abolit 15 miles from the Stono river. The raft was in charge of an experienced pilot and five hands, two of whom, at least, had large experiencein the business of rafting lumber from the Edisto river to Charleston. Reporting to the pilot that he had been sent for the raft, and tak· ing it in tow, thetug-inaster and the tug proceeded down the stream to Stono river, crossed the river, and stopped at the mouth of Elliott's cut, a navigable stream connectillg Stono river with Ashley river. Owing to reasons of ho importance to this opinion the ebb-tide sets from this entrance of Elliott's cut on the Stonotowards the Ashley river. Rafts passa tow enter the cut on the early ebb-tide, and float uutil they reach near the Emtranceinto the Ashley. There they wait until the very 'last of the ebb, go out into Ashley dver, and take the tide up. On the present occasion the tide was near dead low water.: The tug-master ordered the hauds to tie upon th(;> bank, and then left to go to town. The men on the raft say that he informed them that he would return at high water. He says that he told them that he would return the next day. At all events, he didfcome back at high water, because, as the master says, the wind was high, and he was uneasy about raft at high water, about 7 P. M., the location of the raft. the tug pulled it off, and allowed it to drop down with the tide in Elliott's cut. The taft proceeded down the cut with the tide, the tug following until it reached a point known as Quigley's, where the tug passed it. .The tug-master and his mate say that the raft had stopped. Whether it. was rpade fast or not they did not know. The fireman says that whiffl the tb.g was passing the raft continued to float. The three say that the tug·master informedtheraftsmen that he would come back the next day for them. All the raft-hands say that the tug-master told them to keep on down, and that he would meet them, and take hold at the entrance of the cut into the :Ashley river. ThiswRs about half past 8 P. M. The tug went on to Charleston. The raft proceeded to Ashley· river. The tide was ebb, going out fast to the sea.· The,raft could not
613
stop. The tug not being there, it proceeded rapidly on the falling tide, aided by a strong west or north-west wind, towards the bar. Wben off the Battery, two men in a small boat were sent ashore to inform the agent of libelant of the disaster. The rest of the men on the raft went on, and in response to their cries for help were rescued just before reaching For! SUrnter. The raft was beached on Sullivan's island. The larger part of it, with labor and ex;pense, was saved by libelant. The news of the disaster was pnblished in the daily papers of the 18th. The tug made no effort to go after the raft, or to save any part of it, and no report was made to libelant or his agent. The tug-master explained this by saying that he heard Mr. Halsey, agent for libelant, say through the telephone on Tuesday, 18th, that he had had enough of the Henry Buck. Mr. Halsey says that he did say this, but that it was on the Friday following, just a half hour before he hired the tug Maryland to tow back the raft. The weather on the 17th began with a gale early in the morning,; followed by a heavy fog and a south-west breeze, with westerly and northwesterly wind pretty high in the afternoon and evening. A raft lying in the cut ahead of this raft, waiting tor the tide, as has been described, passed over safely after the ebb-tide had run out. These are the facts of the case set out in the testimony. It is full of direct conttadictions on material points. The most material of these is as to what occurred when the tug passed the raft in the cut. All the raft-hands were on the raft. Three of them had large experience. in these waters. They dropped down the cut on the ebb-tide not half out,; with a strong west ,wind blowing. Unless they expected to meet the tug at Ashley river, they must have expected the result which followed, drifting rapidly to sea at the risk of their lives. It is impossible to be-. lieve that they did not expect to meet the tug when they reached Ashley river. On the other hand, the tug-master, his mate, and fireman, deny that the master said that he would wait for the raft as they state. Fortunately it is not necessary to decide this conflict. It is clear that the tug passed the raft, and left it; her master, who had undertaken to tow it to Charleston, and·who was in full charge of it, not knowing or atop· ping to know whether the raft had been made fast or not, and not having given any order to this effect. He left it, also, without giving his orders in such a way that they could not be misunderstood. This was. negligence, for which the tug is responsible. As to the amount for which it is responsible, counsel will be heard on this point, and especially as to the liability of the respondent for the demurrage paid by libelant to Mr. Halsey under his contract with him.
,
614 · >
FEDERAL BEP(!)RTER, '".J
vol. 3.8.
d
fL'l
i'
AWINAFlDRR1!"CO. ",.THEIMPERIAL AND THE , .': .! ... . , .. - ',' ,
S.
G.REED.
n. 1 ,
: ;
"
March28, 1889.)' . '
B.
, , A .tug, employed llya ship to Jl1.ove her fromheranohorage in the Wallamet river to a do'ck in East Portland, 'under the direction and control of the p.ilot ,in charge of ·the ,ship, is not liable for, injury caused by ii. collision of such vessel wJth anQ,ther, In such case the tug and tow are but one vessel, and , ' that oIle is the tow. NAVIGABJ,E, WATERS-OBSTRUCTION.
TOWAGE....,..COLLISION-.i...LIAilILITY OF 'I1UG. "
A wire cable. used as a. guide across the Wallamet river by the ferry-boat of the .Albina Ferry Company, when beld up within 111' fe.et of the surface of the water, at 18 feet from the end of the boat all,d 150 feet from the shore. in water over, SO feet in depth, in the vicinity of the approach of eea-going vessels, to the Irving; dock 'in -East Portland. is a material 'obstruction to naviga" "tion, all,d unlaw;ful,unleS8 sanctioned by the legislature. (l3yllabU8 by the. C/ourt.) . " j
, In Admiralty. , P. L. Willis, for libelant. Cyrus Dolph, for the S. G. Reed. Edward N. Deady, for the Iir),perial. DEADY, J. This suit is brought by the libelant, the Albina Ferry COmpany, to recover damages in the sum of $500, alleged to have been, caused bya collision of the ship Imperial1 while' being towed by the steam-boat S. G: Reed, with the ferry-boat Veto No.2. The facts appear to be as follbws: .Between1 and 2 o'clock in the afternoon of September 14, 1888,Albert Betts, a Wallamet river pilot, was 'employed to dock the Imperial at the Irving dock, in East Portland, and for that purpose obtained from the claimant, the Oregon Railway & Navigation Company, theuse,ofthe steam-boat S. G. Reed and crew. The Imperial was lying at anchor in the river some distance below Montgomery dock, in Albina, and to the west side of the river. Her length is 198 feet, and her beam 38 feet. She had just arrived from Wilmington,Cal., in ballast, and was 15 feet out of water and 13 feet in. At the time of the collision the Veto No.2 was being run by the libelant,acorporation formed under -the laws of Oregon, under a license, as a ferry-boat between her slip or landing on the east side ofthe Wallamet, in Albina,; Just!louth of river lot J9, and her landing on the west side of the same, on lots 26 and 27, in> the Couch addition to Portland; the between such IntJ dings being about 1,200 feet. North width of of the ferry-slip the river frontds.occupiedfor about 1,000 feet by the Allen & Lewis warehouse and the Montgomery dock. About 100 feet is about 350 south of the ferry-slip is Shaver's wharf, and Irving's feet south of the same. In the space between the ferry-slip and Shaver's wharf is a small floating wood wharf or pontoon, with a waiting-house on it. The ferry-boat is run on a steel wire cable three Rnd a half inches in circumference, and fastened to the shore at either end. The cable is supported by and pas8es over a sheave or block held in a hanger 18 inches above the wa-