DDERAL REPORTER,
voL 52.
THE ROSE CULKIN. THE
A.
C. NICKERSON.
ELDRIDGE 11. THE ROSE CULKIN. CULKIN ,11. THE
(Dtstrlct Court, S. D. New York. JUly 22, 1892.) 1.
'24:
COLLISI()N'-8TEA.J4 AND
'
SAILING VESSEL TO AVOID STEAMER-RuLE
, that a steamer must avoid a sailing vessel presupposes an ability, to, keep, away, and a relative' freedom of motion in the steamer as respects the iailiiill'vesssL When' these ,conditions, are mainly reversed, the exceptional tbatis prOVided for by rule 24. Accordingly, where a tug with a tow was oroBslng the mouth of the 'North river, diagonally, at the rate of about two , mileS an hQur; ,and a sailing vessel ca.ttledoWn the river before a strong gale at the tate hetd. it was tbe duty of the sailing vessel seasonably to shape 'Iuir 4;lourse so as to avoid the tug. The sailing vessel having at first luffed to gO'$8t6rn of,:the tow, arid then paid off again, when close up, in an attempt to cross tb,ebows of the tug,8l1dtllelatter not being able to do anything thereafter to,keep out of way, heZd. that the sailing 'vesssl was solely liable, for the collision which e6suoo,;', ' " " ' , 2. LIMIUTiolkOl' "LIA:BII,ITY..... OF VESSEL-I'REVIOV.s' STIPULATION FOR ' V ALO'E..".Ii!fT!!RM!£DIATE VOYAGES, WHEN NO BAR.
,
."
of ,the ,vel.l¥l herself in tqat I1roceeding; and though the vessel may have made several short'voyages after' the giving of 'such stipulation, and before the surTender,sbemaystill besUrrendEired ,exoneration of liability, prOVided her value has not in ,thel'n.ean time beco,me impaired, and the circumstances show that no waiver the right of surrender was intended. Foreign authorities considered. -z '.,
to asnbs!JqUMlt ,proceeding iQlimitation of ,liability, nor any bar to the surrender
,The giVing,' 0,'f" a stiPUIBti,Oll f,or, the value of a vessel, on libel in co,llision, is n6bar
In: Adiniralty; Libel by Alhert B. Eldridge, owner of the steam tug Rose Culkin, for Cross A. C; Nickerson. against the libel by Catharine A. Culkin, owner of the Culkin, against the Nickerson. Immediately after the filin,gof the libel against the Culkin, her owner gave a stipulation for $3,500 as the .agreed value of the vessel, and thereafter reparred and used hcr inVQyages between New: York and Rockaway. Subsequently her OWner filed 11 petition for limitation of liability , and, offereij, to'surrender the vessel. , . Carpenter &JMosher, for Nickerson:. Alexander, &l Ash, for the RoSe Culkin and petitioner.. ,,'!
, BROWN\<:IDistrict Judge. Between 3:30 and 4 P. i.1. of October 27, 1891, as the schooner" Rose Culkin," bound down the bay from the Erie Railroad dock at Jersey City, was approaching Ellis island, she came in collision with the steam tug Nickerson, striking with her stem the port side 'of the 'tug: at an angle of from five: to eight points. Both received :libeLand yrosslibel: w:erefiled. .The wind was blowing such a gale from the "northwest, or west northwest, that a lighter came down to the westward of the schooner sailing under bare poles. The schooner was light, about 74 feet long, and E}ailing under a jib, foresail and two reefed mainsail, and she was going through the water at the rate of about 10 knots, or against the flood tide about 8
THE ROSE CULKIN.
329
knots by land. The tug had taken the barge Kodiak in tow on a hawser of 18 fathoms from the anchorage ground south of Ellis island, and was heading about east for the Battery nearly across the tide, and going at the rate of about 2 knots through the water. The place of collision was near the edge of the anchorage ground a little to the northward and eastward of Ellis island, probably about 200 yards below the permanently anchored barge above Ellis island, and less than 100 yards to the ward of that barge. The witnesses for the schooner contend that the collision was brought about by a sudden turn of the. tug to starboard across the bows of the schooner, when the latter was 100 feet distant. The tug's witnesses deny this, and contend that the collision happened because the schooner. after heading so as to pass to the westward of the tug and tow,paid off to the eastward in the attempt to cross the bow 01 the when very near. 1. The schooner had come down about one-third the distance across from the Jersey shore,and, asher witnesses say, was heading toward'S Owl's Head. Butin her three different pleadings it is stated that her course was southwest, which is three points more tothe westward than the course for Owl's Head. If instead upon a southwesterly course, she WR!J making for Owl's Head, without any change of course, as her witnesses contend, she must have gone at'least 300 yards to the eastward of the place of the collision.' .., The ordinary course down the bay is south by west one-half west; 'and that course also would ha.ve carried the schooner considerably to the eastwardofthe place ofcollision. To account for the collision at all, therefore, I must find that she was not heading as her witnesses say she wasj but more nearly towards the southwest as her pleadings allege, and as the tug's witnesses also statej and such a general course would have carried her to 'the westward of the tug and tow as the latter's witnesses allege. The tug's course was necessarily about due east, interrupted but II. short time by a little starboarding in accordance with a signal of two whistles given a few minutes before this collision to a large steamer which came down the bay and passed to tbe eastward. As the tug was bound for the East river and previously heading about due east, there is' probability that she at any time, with no apparent motive or necessity, turned from four to five points to the northward, so as to head to the westward of the schooner's south'festerly course. It is difficult to make out what Capt; Woglan means to testify to. He first saw her about 900 feet off, he first says; afterwards he says about four lengths off, or less than 300 feet. The tug, he says, was then heading for the Battery, and if she had kept her course she would have passed under his stern. Yet that course was nearly due east, and no further swing to the eastward is claimed in the schooner's pleadings. The claim that the collision was caused" by the sudden porting of the tug when only 100 feet away , whereby she threw herself across the schooner's bow, is absurd. ·Going only about one fifth as fnst as the schooner, the tug could not in any such space have materially changed her position. The apparent change of the tug was caused, I have no doubt, by the real change of the schooner's b!eading, as the: other witnesses state. The whole case on the partoHlie
830 presents such a.nd incoQsistencies as to make it, jmpossiQle to place on their testimony concerning her . . :, .'. . navig4tioQ. pO,siti,on to judge of the course of the .schooner, Thepl1rsQns in the of t4e behind the tug, and the perwere tha RaYUlonda}(mgside the barge. They all testify that the /l.I,tsome was heading towards or to· the westtbe 'Wg and luffed up somewhat in. passing the so as tl) go v,eerDTf'J;leRr to it, and thl\t had she continued that lutflshe""Olild have pallsedthe, tug and tow without difficulty to· the but thatin,steado( Qoing this, she paid off again when the bow.of the near thus broug4t,about the coUisiop'. The account givlJnby the schooner is so inexplicable and unreliable, that I am compeP.ed to adopt the above as correcti sO,tbatjtbecomes unimportant to determine yawing,or,what:,,()hanges of heading before that had ma,deby the schoon,er, (Jr.\Yhether her course when from one founhto mile such as to go to the eastward. or to of the t1;1g: 8,nP: i,tmv, ,about which, the witnesses differ. The 'act that she got so neaJ:;,tQ, Ems island from.1,' position one third acrossthe,N.grtb river, !Pat she was all the time working to windward of the usual course down the bay. She was probably unmaster, loolwut, and ,cre.w saw SteadYi and Ith,e 'fact that and only saw the tug when no steamer go down waa 8pd rT()used by her whistle$, pro.ves ligencean,d illattentiQn in c mivigation at i high spee<,l, and in confusion -anp in tb.eir testimony. But the tug'!! nafJ.ll;l.tive and the testimonY of disinterested leave no doubtthatafter having approl'\,ched near the .t,ug and uponll course to the westwa.rdof the tug, the sohooner broughton collision by a sudden change pf pEjrcourse and 4n attempt to cross the tug's bow. This was at h,ero-wn risk and fixes the blame on her l because there was uncourse to the westward of doubted rop1:nto continue on her . the tug and tow. 2. I do. no;t/ think, under the circumstances, any fault can be ascribed to the tug. ,l'h()ugh bound, under 11;11e 20, to she could to keep out of the;wa.yof the schooner,she was not do more than was possible. But what ispossible.toa tug and ,tow going at the rate of two knots through the water, as respects a schooner. coming down near the at. the rate of tel;lknots? The, ordinary rule presupline of het. poses an ability to keep away,and: a relative freedom of motion in the steamer as respects the sailing ve!¥,el.. When .those conditions are mainly reversed ,the exceptional, .casearises that is provided for by rule 24. The A.·P. Cranmer, 1 Fed. Rep. 255j'J!heO. F. Ackerman, 9 Ben. 179. Under such circumstances, when the tl,lg h:;ts comparatively small power to make any change in her position, in respect to a sailing vessel at high speed, it is .the duty of the sailing vessel seasonably to shape her course with reference to the situation of the tug and tow, and not to rush blindly into,danger, or into s'!1ch qlQlile quarters that it ,is practically. imi
TIll: ROSECUI,KIN.
331
possible for the tug to avoid accident. The general testimony on the part of the schooner indicates that her master, /i'om the time he saw the tug, intended to· acton . this principle; but' that from miscalculation through not observing the tug and tow seasoriably, or by undertaking to run too close, Of at the last 'by some vacillation or change of purpose, he brought about the collision by attempting to cross the tug's bow. Both the master and the lookout of the schooner ascribe the collision to the change made by the tug when not over a hundred feet off. This apparent change as I have already said, was the schooner's change; not the tug's; iNothing the tug could possibly have done within any such small distance could have contributed anything material either to bring on, or to avoid, the collision. And before the schooner's change, so eel'· tain is it that she was working up close to windward towards the southwest, that I am satisfied the bE'st the tug could do to keep out of her way was to pull off 'to the eMtward, as she did, as fast as she could. The courlle'when heading for the Battery was about east by north, instead of northeast by east as stated by the captain. But this error is imma" terial. I must, therefore, hold the collision to have occurred by the fault of the schooner. 3. The alllount of damages sustained by the Nickerson being in excess of theamonnt in the registry realized from the sale of the Culkin, viz., $888.05, it has been objected both in the answer to the petition and on the argument, that the petitioner cannot limit her liability to that sum, through a surrender and sale of the vessel, because immediately after the filing of the Nickerson's libel, the petitioner, as owner of the Culkin, gave a stipulation in that cause for $3,500, as the agreed value of the vessel; and having afterwards repaired her, thereafter employed her in making a number of voyages between New York and Rockaway during about seven weeks prior to the filing of the petition to limit liability, with the offer to surrender the vessel; this being nearly four months after the libel was filed. The stipulation for value in the sum of $3.500, seemS on the evidence to have been given unadvisedly, and in ignorance of the right to limit liability under the statute. The petition was not filed until after a substitution of proctors. But aside from this circumstance, the stipulation in all such cases is only to abide by and pay the decree of the court. The proceeding to limit liability under the statute, however, if lawfully taken, stays further proceedings in pending suits. This would prevent any enforcement of a prior stipulation, even though a decree were obtained before the petition was filed. Such was the express adjudication in The Oity oj Norwich, U8 U. S. 468, 489,6 Sup. Ct. Rep. 1150. In the present case the proceedings to limit liability were taken before decree or trial. If rightly taken, they, therefore, supersede the prior stipulation, because the court cannot make any order for its enforcement. Providence, etc., Co. v. Hill, etc., Co., 109 U. S. 578, 3 Sup. Ct. Rep. 379,617. The only question, therefore, is whether the circumstancesabov6 stated are sufficient to debar the petitioner from proceeding to limit her
332
FEDERAL REPORTER,
vol. 52.
lia:biJity by a surrender of the vessel, .instead of giving security' for the value and freight at the close of the former voyage. For the latof procedure wOQld hltve been sustained by the express adJudication of the supreme wurt in The City of Nor'l.JJich, which is a much in its .circumstlj.nces. both as regards the difference between the,l1nJount of the original stipulation, and the fund distributable, and &8 ,the time during which the vessel was run upon subsequent voyages before the proceeding to limit liability was commenced. , 1 have not found any reported case precisely like this, in which after of the vessel on a stipulation for value and the prosecu.tion voyages, she hits been offered for surrender in a subseto limit the original liability. The proceedings have oeeJ;l, qsually taken by giving security, with reappraisements if necessary, tpecases of The City of Th,e Doris Eckhoff, 30 Rep. 140. Such cases have been frequent. The: only case found ,any analogy to the present is that of The Alpena, 8 Fed. Rep. 280, wpere, the petitioner to grC\up together, under one surrender, the claim.sot" Iil6veral creditors arising ,out of different voyages, viz., that of one creditor for collision damage, who had sued the owner in personam, and the claims of various other damage claimants arising out of the stranqing ofthe vessel on a v()yagefive weeks after the voyage on which the;f:}oUision occurred; and the petitioner surrendered the wreck, strippipg8; and freight upon the last voyage, claiming a discharge from both sets of creditors. Judge BWDGEWT held that this could not be done; and".th,at the former collision claimant was not bound by the proceeding. can be no doubt, I think, of the correctness of that decision, for the reason tha.t the owner had there disabled himself by his subseqpent the vessel and by her stranding, from effectively "trllnsferring hisinterest in the vessel " as it existed at the close of the. {orOler voyage. statute (section 4283) limits the shipowner's liability tE? "the value of his interest in the vessel and pending li"eight;" and this means as they exist at the close of the voyage. City of Norwich, 118, U. S. 468,491-493,6 Sup. Ct. Rep. 1150. And see Gokey v. Fort, 44 ,Fed. Rep. 364; The Abbie C. StiWbs, 28 Fed. Rep. 720; The Anna, 45 ,Fed. Rep. 900. To teJJ,der afterwards something ,of materially less value, is not a compliance with the statute. The "transfer" required by section, 4285 is a transfer of the s!\ll1flvaluable "interest" which section 4283 prescribes as the limit of liability. If by the owner's acts or laches the "value of his interest in the vessel" is substantially diminished, he is no longer able by a surrender of the vessel to "transfer" the interest or value ",hich the statuteC9ntemplates; the creditor in that mode of proceeding would not get,,,the value of·the owner's interest" (section 4283) at the close of the voyage. The shipowner's right to proceed by .surrender must, such. circumstances, therefore, be held lost, though the right to proceed py either of the other three methods pointed out by the supreme court, including that by giving security for value at the close the former voyage, might remain. . The Scotland, 105 U. S. 24, 34,35. Upon those grpunds, therefore, although the mere subsequent naviga-
or
THE ROSE· CULKIN.
333
tion of the vessel cannot be treated as a personal assumption of the debt such as· to exclude all right to limit liability afterwards, or "perhaps so long as any damage or loss remains unpaid," (per BRADLEY, J., in The Benefactnl', 103 U. S. 245; The City of Norwich, 118 U. S. 489, 6 Sup. Ct. Rep. 1150; Gokey v. Fort, 44 Fed. Rep. 364,) yet if the Rose Culkin had been stranded, or otherwise so damaged, or so depreciated in her subsequent voyages, as to be of substantially less market value than immediately after tbis collision, I should have held that the right t6 proceed by surrender was gone, and that the owner must resort to some one of the other modes of proceeding to obtain the benefit of the act. But the schooner in this case was herself damaged by the collision; she was then repaired and improved, her navigation afterwards was for seven weeks only; no accident is shown to have happened to her; and the petition aVers that when tendered she was in as good a condition as at the close of the prior voyage. Meantime her liability was not certain, butstrenuously contested; the owner was but imperfectly at least informed of her tights; and when the surrender was offered, her responsibility was still unadjudicated, and her liability denied. If the value of the vessel was unimpaired, and the creditor in no way prejudiced by the use .meantime. 1 cannot perceive any. sound reason why, under circumstances like these,·the right of 8W7'render, which the statute expressly gives. should be refused; In the absence of any time limit,. the only limitations upon the statutory right of 8urrender, are such as are to be deduced from the general principles of law, or from the manifest purpose of the act. Every privHege, no doubt, may be waived, or lost by laches, or forfeited by the voluntary act of the party incompatible with its exercise. Mr. Justice BRADLEY, in The Benefactor, 103 U. S. 239, 246, intimates that the pro{Jeedings to surrender must be taken "within a reasonable time;" and Mr. Justice BLATCHFORD says the transfer is to be made before"anything has intervefled amounting to a waiver or forfeiture of the right to make a transfer." Thommasen v. Whitwill, (Great Western,) 12 Fed. Rep. 891, 902. But the time is not unreasonable if even the liability is in doubt, and not yet adjudged (The Benefactor, supra, 244) and if the delay and use of the vessel before the surrender have been short, and not such :as to diminish her market value. Unuer such circumstances as exist in this case there is manifestly no intentional waiver; nor should any forfeitureof the owner l s right, under such circumstances, be adjudged, if the creditorl a rights and interests remain substantially unimpaired, and the owner's dealing with the vessel has not been designedly such as to prejudice or embarrass the creditor. These views are in accord with the construction given abroad to similar provisions in the ordinance of 1681, and in article 216 of the French .code of Commerce, which embody the long prevailing law of the maritime countries of Europe,and from which the surrender provision of the ftct of 1851 was drawn. The ordinance of 1681 (liv. 2, tit. 8 ,article 2) provided that the owners might be discharged from responsibility for the .acts of the master, "byabandonmeut of the ship and freight," (en aban-
884
FEDERAL· REPOBTER,'vol.
52.
doriantleut' stlefret.} The Code:ofCommllrceprovides (artiele216) that as respects .obligations for the acts and of the master relating to the ship·and voyage. owners may in:aB cases discharge themselvesby.surrender of the ship. and freight," (parl'abandon du na'l.'ire et du fret.} As the law prescribes Qeither time nor condition, says the snrrenderHmaybe madein any manner whatsoever * * * and in: any and avery case," (dU'iguelque maniere que ce 80it * iI' *. en tout etatde caU86. . Traite de Contrat de la Grosse,c. 4, § 11, su 6.) Bedara general rule the abanride says, (1 Corom. duOom·. Mar. § donml:'nt may be made atanjr time (en toutetat de cause) so long fiS the owner has not expreSSly renounced it. This ·determinationmay be inexercise.of the right/' Goirand ferred from acts (Oode ofCbmmerce,§ 216) says, "the owner may abandon . * * * so long ashy: bisconduct he has not shown that he intended to make himself.:resporisible for the liabilities of the captain." In this general proposition. all seem to concur. As regards a renunciation .or waiver of the right, De.sjar.dins BRYS: "It suffices, but it is necessary,. that it· result from acts implying on the owner's part the intent to pay thedeht persommy," which the judge of the facts is "to determine upon the circumstances." (2 Droit Com. Mllr..§ 295.) Valroger (1 Droit Mar. § 274) says: can be made in all cases, provided it has not been clearly renounced, and there has been 110 judgment personally condemning the :Owner." As respects: subsequent voyages, he says "the owner will-not be presumed to have waived the right to abandon so long as no claim has been made upon' him." And in this alUext writers and decisions seem also to agree... If new voyages are undertaken after suit, 'continuesValroger,(§ ,274,) the owner "ought in general to. be presumed t01:Jave waived bis<right as'respects that creditor, whose rights upon the ship he should not be aJlowedto compromise; but the voyage must be .one: that implies the intent. to waive the right of surrender." ,In the resu?ne of this subject. given in tberecent supplement (1890) to Jurisprudence Generale,. by Dalloz, it is said: "The right to. surrender the ship can no longer be exercised when the owner has done acts implying that he has renounced the use of his right; Such is the case where after suit the owner has employed the vessel on new voyages, in consequence of which :shehasbeen damaged; [citing the case of: The RochelaiB, infra] but not where judicial notice of the claiin was not delivered to him until after signature of the.cbarterpaTty, from which it was sought. to infer an implied renunciatiionof his right; nor if, after departure upon B new voyage, the owhermakes declaration of abandonment, when sued by the creditor; and the abandonment may be first made on appeal. ". Sup. 6 Droit Mar. p.93 1 §§ 328, 329. In the case ofLe RochelaiB,ithe court the the court below, denying the :owner pfthitt vessel the right of abandonment where ilie owner' had employed the vessel in various voyagesiin the fishing business; for more than sixIDoDths Bftersuit, J until she was wrecked by stranding, and then offered to surrender her in that condition. The surrender was refused on the ground, that the wreck II no longer represented
THE ROSE' CULKIN·. "
335
the veMel as of the time when the owner's liability was fixed, (ne representent plusle navire deal0et 11 Fevr.1B75,) being "no longer in condition, or entire, but damaged anew by the owner's own act, and the nature of her condition changed," (dbnatur Dalloz, 1877. part 2. p. 70. .) III the later case ,of The Alfred, in the court of appeals of Cnen, (Feb. 15, 1888,) it is said "The right of abandonment continues until the proprietor has renounced it; and renunciation, if not express, canresuIt only from acts or facts implying on his part a fixed determination (valente with knowledge of the facts (en cannaisRance de cause) to renounce his right; and that the right was not lost by new voyages in execution of a charter made before suit, and when in executing them the owners hudnot intended to accept indirectly the consequences of a responsi. bility, the whole extent of which they had llotup to that time understood." 5 Revue Int. Droit .Mar. 189; 4 Revue Int. Droit Mar. 398. In a note to that case the editor of the Revue observes that "the .continued,navigation of the ship before suit constitutes no obstacle to the right of abandonment; but if continued after suit, it is, according to Desjardins, a question of fact and intention; and is still permissible, according to De Conrcy et Lyon-Caen et Renault. Questions. etc., 2d Serie, p. 175." The tribunal of Amsterdam, 10th January, 1873, under a similar provision of the Netherlands Code, (section 321) held that "the right of abandonment is not lost, in principle, though the ship, equipped, undertakesa new voyage; but if the new voyage is commenced after suit. the rights and duties oithe owner are modified;" and in that action the right was disallowed. Jour. Droit Inter. prive, 1875, p. 146. In the brief notice of the case last cited, the circumstanceR are not stated, as respects the duration of the navigation, or whether the vessel sustained any injury, or depreciation, thereby. In the projected r.evision of the French Code in 1867, additional sections were pl.'oposed giving the right of abandonment" at any time before suit in the tribunal of commerce; " and requiring that "after such suit the owner desiring to abandon must give notice thereof through the marshal within eight days at the latest after suit brought against him." The projected revision of 1867 was not, however, adopted. But provisions to the same effect were inserted in section 492 of the Code of Italy, adopted in 1882. The Code of Chili allows abandonment of the ship" even after her departure, under whatever condition she may be, provided the owner has not formally renounced that right, and the abandonment is made before judicial sale." 2 Desjardins, Droit Mar. § 296. These citations show that in the foreign practice under a surrender provision like our own, a surrender of the vessel is not barred by her subsequent navigation even after suit, unless the vessel is damaged, or an intent is found to waive the right of surrender. After suit, the situation of foreign creditors under the foreign practice is somewhat different from that of creditors under our own practice. The former have no suit in rem, and do not in the first instance ob-
336
for their claims, as is common with us. Consequently, the navigation of the vessel after·suit there, is more at the risk of the creditor tbsnit is here; because if the vessel is lost, and the owner is not otherwise responsible. there the claim will be lost, though no attempt to surrender be made; while here the security usually obtained by the creditor will rE'lmain. . In holding the surrender to have been lawfully made in this case, the delay' having been without prejudice to the creditor, I do not intend to sanction anyJong-continued navigation of the vessel after suit in ordinaryoases.: On. the contrarY"that, in most cases, must result injuriouslyto the.oreditor, not only through the loss of the interest on the fund,:wlaichiB timely surrender arid sale would produce, but through the ,nattlral depreciation' in i·tile vessel itself. If the owner sought to make.good this depreciation by:subsequent repairs, then the sufficiency of the ,restoration would be'.Liable to become an additional subject of litigatioh;arid it would be unjust and impolitic that any such tiona1 burden,af litigation should be imposed upon the creditor. Vari. ous 'cil,icumEitanoes·mayafl'ecta.n owner's right to surrender. If the've&' sel, for instanCe" had been kept .purpClsely out of tbejurisdiction, so that the creditor could only sue in personam, and the vessel was· mellnwhile deliberately used ,for. the owner's profit, so that ifshe were lost the creditormust rely <:m:theddubtful personal responsibility of the owner alone, suchaots. of, deliberation and, of speculation on the chances of navigation, to the creditor's'prejudice, and at his risk,might weH be held to be'a forfeiture of the 'owner's right of surrender. . The owner in short ought to.behel!l,t(dhe.exerGiseof good faith and fair dealing'with the creditor. AIL subsequent navigationaf the vessel must in any event be wholly at the owner's risk; if the vessel is not of equal valneto the creditor when tendered, the right to surrender should be held lost. On the bther 'hand , the owner's obligations and necessities may be such as to makean:immediate surrender specially injurious to him; and where thelif.!.bility itself is doubtful and not yet adjudged, it would be Ulueasonable the owner to such loss by requiring an immediate surrender before his liability was determined. Every case must .be determ.inedupon. its· circumstances. "Each," says Mr. Justice BRADJ,EY, "will ! suggest the proper course to be pursued therein." The Benefactor,lmLU. S.. 245. No objection having been made at the tin'le ofthe·surreodeD,of the vessel, or on the motion forher'sale, that she was not bfasLmuch value to, the creditor when surrendered as she was after nosu'cha'Verment being found in the answer, I excluded at the hearing some evidence offered for the petitioner that she 'was of equal vaJua, supposing that question not to be in issue; but under one of the [general denials of' the ariswer, I think the evidence should have been received. Either party' may, therefore, within 10 days take evidence by deposition on that point,. and be further heard thereon, unleSs the averment in the petition in that regard be admitted by stipulation; in the latter case, decrees may be entered in accordance herewith.
COI,UMBUS WATCH CO.
v.
ROBBINS.
337
COLUMBUS WATCH CO.
et al. v.
ROBBINS
et al.
(Oircuit Court of Appeals, Si.'!:th Circuit. October 10, 1892.) No. 46. APPEALS-JURISDICTION-CmCUIT COURTS OF PATENT CASES. INJUNCTION IN
A decree .sustaining the validity of a patent, declaring iufringement, directing au injunction perpetual in form, and referring the cause to a master to take an account of damages and profits, is not appealable in its entirety; so as to give the circuit court of appeals jurisdiction to. fiually determine the questions of validity and infringementi for the decree is not final in its nature, and appealable as such uuderprior laws, out is interlocutory, and on an appeal therefrom, under section 7 of the act creating the circuit court of appeals, the court is limited to the question whether the injunction was prOVidently ·granted in the exercise of a legal discretion, and it can have no jurisdiction to render a decision on the other questions, even at the request of both parties, Jones Co. v. Munger Man'Uj"g Co., 50 Fe,d. l'tep. 785, 1 C. C. A. 668, disapproved. .
Appeal from the Circuit Court of the United States for the EasterI' Division of the Southern District of Ohio. Statenlent -by JACKSON, Circuit Judge: On. application of the parties to have this court, under the appew from order of the lower court granting an injunction, hear f!,ndfinally uetermine the merits of the controversy relating to thll validity of the patent in suit and the infringement of same. James Watson and M. Leggett, for plaintiffs. Lysander Bill and Geo. S. Prindle, for defendants; Before JACKSON and TAFT, Circuit Judges, and HAMMOND, District Judge. JACKSON, Circuit Judge. The appellees, as assignees and exclusiVf owners of reissued· letters patent No. 10,631, dated August 4, 1885, fot improvements in stem-winding watches, brought this suit in the ordinary form against appellants for the infringement thereof. On the hearing oi the cause upon the pleadings, proofs, exhibits, etc., the circuit sustained the validity of the original and reissued patents, adjudged that defendants had infringed certain claims of the reissue, ordered the usua' account as to damages and and granted an injunction restraining them, their officers and from making, selling, or using watches or watch movements embracing and embodying the invention or improvements described in and covered by the claims of the reissue which were held to be infringed. See 50 Feel. Rep. 545. This decree was passed in May ,1892. The defendants filed an assignment of errors, and prayed an appeal from the entire decree, and for a supersedeas of the injunction. The circuit court allowed an appeal from so much of its said decree as granted the injunction, but denied it as to the balance of the decree; the order of the court upon the prayer for appeal being as follows: "And now upon the filing of the assignment of errors and petition for appeal of the defendants by their solicitors for an appeal in said cause to the . v.52F.no.4-22
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