71 F. 527 -

627

Dot limited to a specific Improvement upon a pneumatlcdrilling tool, but cap be fairly construed to be a broad claim, without limitation in regard to details, for a new part of an engine for general use. If the premise is true, the conclusion would follow that the supposed invention of the claim had closely-related predecessors. But in our opinion the defendant's construction is erroneous. Upon the question of infringement, the Bates cylinder is surrounded by a case, and the air channels were entirely formed upon the outer surface of the cylinder. In the defendant's tool, the cylinder has no case, so far as the part which covers the piston is concerned, but has a casing upon the part which covers the valve chamber. In the part which contains the piston chamber, the air chan'11els extend through the solid sides. This modification is immaterial upon the question of infringement. The decree of the circuit court is affirmed, with costs.

.

THE FLORENcm. THOMAS v. 'l'RE FLORENCm.

(Circuit Court of Appeals, Second Circuit.
ADMIRALTY APPEALS-SALVAGE AWARDS.

January 8. 1896.J

The amount of a salvage award wlll not be changed by an appellate court, except in an exceedingly strong case of abuse or palpable mistake in the exercise ot discretion.

Appeal from the District Court of the United States for the South·1 ern District of New York. This was a libel in rem by William Thomas, master of the steamship Parkmore, for himself and others, against the steamship Florence, to recover compensation for salvage services. The district court made a salvage award of $8,500, with an additional sum for expenses. See 65 Fed. 248, where the facts will be found stated at length in the opinion rendered by Brown, District Judge. From this decree the libelant appeals, claiming that the award was not sufficient in amount. Evarts, Choate & Beaman (Treadwell Cleveland, advocate), for appellant. . Wing, Putnam & Burlingham (Harrington Putnam, advocate), for appellee. Before WALLACE., LACOMBE, and SHIPMAN, Circuit Judges. PER CURIAM. We should have been better satisfied with a somewhat larger award in this case than was allowed by the court below, but cannot find that it was so manifestly inadequate as to justify its revision by an appellate court. It did not proceed upon wrong principle or any misapprehension of the facts, and different minds could reasonably reach a different conclusion upon the mat· ter. We cannot interfere with it without violating the salutary' rule

J'EDEIW.LRIllPORTER,vol. 71. there is an exceedingly strong case made out of abuse or palpable mistake in the exercise of its discretion. It was considerably more , liberal :to the salvor than the decrees in two recent cases in the English courts presenting a striking similarity to this in all the elements which constitute the basis of an award. The Ulysses, London Shipp. Gaz. Lloyd's List, July 19, 1895; The Julio, ld., March 22,1895. The decree is affirmed, but without costs.

not to change the decree of the court below in salvage.causes unless

THE AGA'l'HE. MARTIN v. THE AGATHE.

(DIstrict Court, S. D. Alabama. January 10, 1895.)
No. 685.

VOLUNTARY PAYMFJNTS-c-SUIPPING-GENERAL AVERAGE CLAIM.

Money paid by the consignees of the cargo to the master upon a wrongfUl claim for general average, and, reimbursed to the consignees by theconsignor, cannot be recovered by the latter from the ship, If the payment by the consignees was voluntary. But it may be recovered if the paym.ent ,was made for the· purpose of getting possession of the cargo.

This was a libel by William H. Martin against the bark Agathe to recover money alleged to have been illegally exacted from libelant's consignees upon a wrongful claim for general average, and for which he had reimbursed them. . , 'J L. & H. T. SmIth, lor claimant. PiUans,Torrey & Hanaw, for' libelant. TOULMIN, ,District Judge. It appears from the libel that it is filed to ,recover damages for breach of contract; the contract being a charter parity and bill ,4;lflading thereunder, made by the owners and master of the vessel, in which contract it was stipulated and agreed tlIat vessel was to transport ,and deliver the cargo provided for to the consignees, at Dundee, Scotland, on paYlilent of freight. , The :breach alleged is that the master of. the vessel failed to faithfully perform his part of the said contract, in that he wrongfullY extorted from ,a large sum of money upon a Claim of geIiefal average;' It is al1eged'that the cargo was sold to the consignees at Dundee, and that the burden of paying all costs '(uid chargeg its carriage and delivery rested upon the libelant, ,r ahd' that tbe'master of 'the' vessel was' informed Of' this before he ::gailed froon'the' port of Mobile,"-the port of loading., It is furtheral· Iegedtl1atthe"Claim of general average was unjust and wrongful, an-dthe'circulns'tiu1cestinder which' said claim'arose are shown, to have been unjustandw'rongful.It also appearsfromtae libelthat' at the time the' cargo was delivered to the