only the particular devices described in his patent, and their equiva;;, lents for' performing the samefuD.ctions.::· Aparticnlar descripiion of . these is their is such that when the end of the' hod shank rests in the floor socket the bowl and shank of the hod at and near their junction. will be a;upported by the cross-bar, and be so ftl,r inwardly out of perpendict1lar with the floor socket that they will be be kept in place by the weight of the hod-bowl and its contents, the center of gravity being ·onthe inward side of the cross-bar. A practical disadvantage results from the principle of thecQmplainant's invention, whereby the opeI1'·,endof the hod-bowl is prasented to the workm.an when remove the hod, ana,'he is required to ll"everaethe eud,of the bowl, and.the,(lontents of the bowl are thus liable to..fa.ll out. Upon the proofs the conclusion is reached that the a.pparatuS!actullIUyuse/l by the whicll is alleged toinfDinge the compltloinant's described:-in letters' patent issued to the defendant, No., 231,021, bearing ,August 10, 1880. The devices in the hod elevator patented by-the defendant ate not the equiv.alents of the complainant's, but perforln a,different function. Their oftjQe. is hod,in: :80 -:vertic!!:l position, and resting on its shank instead Q'! on the ·the defendant's devices the closed end oftqe'hod.bowl,ma.y be on the outer side of the cross-bar, and when it is thus presented to man he /loes not require to reverse the end of; tlw bowl, and ·thet.e is no liability that the contents of the bowl will escape. The defendant does not infringe, and the bill is dismissed, with costs.
FISHV. DOMESTIO SEWING. MAcmNE . "; · '''/ C
.
Co. j;;
(Circuit Oourt, S. D. New York. May 13, 1882.)
FOR INVllINTION-DELAYIN APPLIOATION' Jl10It . REISSUE.
The numerous, patents obtained by the patentee between the time of his alleged in ven tion and the time of his application tends strongly to refute his theory for delaying to make sueh application.
2. REISSUE-REFERENCE TO FORlolER Al'PLICATI01i.
The fact that a patentee failed to refer in a former application to a feature to and used for the same purpose as subsequentlypaten,ted l,y him the former, allege.d,tohave been made by him ppiQr the one first patented, is very improQable,:as,the·mention of suchwoul.d1llave been.a mostimpllrtant contribution to the value of the former. .
496
pgnBBAL REPORTER.
a.
SAME-PRELIMINARY INJUNOTION DENIED.
Motion for preliminary injunction denied where patents have not been elltablished, and complainants show only a limited acquiescence on the part of manUlacturers, and defendant for years openly asserting their invalidity. '
In Equity. T. O. Woodward, for John Dane, for respondent. WALLACE, J. I am not satisfied that complainant had pede'cted the invention described in his patent of 18, 187'2,; ,any' considerable length of time before' his application for that patent. The numerous patents obtained by ,him between 1859 and the' application tend strongly to refute his theory for. delaying ,to make application. It is vety improbable that he had invented his locking device at the time he applied for the patent of 1872, as that patent-does not hint at any such feature, and it would ,have been a most impOlltant contribution to the :value of thitt patent. In this viewoi' the1!ase,J think the defendant has succeeded casting sufficient doubt upon the originality of the invention to defeat an application for a preliminary injunction. The patents have never been established. The 'complainant'shows only a limited acquiesce'nce on the part of manufaoturers, while the defendants for several years seem to have openly asserted their invalidity, and the right to appropxiate the improvements. The'motion is denied.
in
THE ALICE
(District Court, 8. D. Florida. 1.
June,1882.)
SHIPPING-BILL OF LADING-DAMAGES FOR NON-DELIVERY.
Where but a portion of the cargo stated on a false bill of lading was actually shipped, and the owner of the vessel is not shown to have been a party to the fraud, the only damages to be found in an action in rem against the vessel are for the non-delivery of the cargo shown to have been put on board. 2. SAME-FRAUD-LIABILITY OF VESSEL-QU&RE.
Where the testimony of thdibellant shOws fraud orithe· part of the owner of the vessel in using false bills of lading, and also conclusively that but a small part of the cargo stated was ever shipped, can the vessel in an action in rem be held for the non-delivery of cargo more than is shown to have been received on board t (Juan·e.
THE ALIOI. S. BAME-PRESUlIPTION OF CONDITION OF GOODS.
497
Cargo is presumed to be shipped in good condition; and where the delay and dampness of the hold of the vessel are shown to have been sufficient to cause the damage found, if such delay has been unjustifiable, it is presumed to be the cause of loss and the vessel held liable. 4. NON-DELIVERY-MEASURE o'F DA:MAGEB.
Where the voyage has not been completed and but scarcely commenced, .and the cargo ruined by delay, the measure of damages for its non-delivery is its value at place of shipment and not at place of destination.
In Admiralty., Contract 'of affreightnient.>j , G.J3Ji1Jne PattersIJn, fotlibe'1lants. . Noclainiant. LOCKE, D.J.,· This is an action for damages ance of a contract of a.ffreightment, in not carrying to theit:d!lstination and, delivering 524 bales of tobacco, appearing bY'a)biU o£ lading to have been shipped on' board this vessel at Santa Crl1z;Cuba, for carriage. 'to 'Falmouth, England, consigned ,to whoMvanced $11,662 upon it. Although due notice'hase·been given 'by pu.blication,' no claimant has appeared, and the case has been' heard ex parte. The master of the vessel, although present, has put in ;no answer; but has been called by the libellants and testified,' but there has been no defence to the allegations of the libel other t.han from the testimony introduced ,by them.' . The master testifies that soltle time in October the brig, with a cargo of lumber, cleared from New YorkforCienfuegos, Cuba, consigned to Roca &00., of Manzanillo. The only document which she had showing her ownership or nationality was a sea·letter, purporting to have been obtained from the Costa Rican consul at New York, in which B. J. Wenberg was represented as,owner, and'which certified that if said vessel visited a. Costa Rican port within 12 months she would be entitled to documents asa vessel of such nation.. After discharging at Cienfuegos she went to Santa Cruz, where Roca & Co. loaded her with a cargo COIlsisting of mahogany, lance.wood,fustic, granadilla, honey, and and she cleared ostensibly for Falmouth, England, for orders. Before sailing, R. B. Pender, who had been master from New York; resigned his place, representing that he was not well, and T. T. Partridge, former mate,wasappointed ,master by the acting United States consul, and finally.signed the 19i1ls of lading and cleared the vessel. He states that he did not know the contents of the bills of lading, as they' were in spanish, a which he did not understand; but that ,he inquired of Mr. v.12,no.5-32
Roca if they were all right. and, upon being told that they were he sigIled 'them. He says'he had no knowledge of that'part of the cargo taken on .board after 4e was apppinted master, put presents a :'cargo book of that received by him while mate, lihowing a' very much greater quantity of different kinds of wood than the bills of lading call for. He says he had rid knowledge of the alnount of tobacco received on board, but states that none had been removed from the vessel after she was loaded at Santa Cruz until discharged in this port. He further before sailing Roca",the cODsigQe:e of the vessel and shipper of the cargo, told him he wanted the brig sunk; that he would put augers on board, and wanted. 'him, ;Partridge, to sinkthe;Y6aselont at he should have,13,OOO from his agl'lntsin New York if he didit. A made, for ,the purpose, El£red cedar, about three feet long,andthreebYf91U' ino.1l.es, securely nailed and lashed, marked "Mr.. ,Pender, Sallta Cruz," ;Which has been o,pened, inicourtand fonndtQ contain two large. augers;, is shown to have"been Sent on board by. a gentleIQ,an ill. 'Elanta who had been· On hoard the brigseverll.l :P.adridgetestifil'lS that Roca had been on board the brig several but none of tlJ,e crew who saw the party bring the .box .to thepoat &uew either of the parties by name. It. by.thetes·timo.ny of tho ,crew that it was brought to the brig's bo,at, then lying at the dock one ;the gentleman personally, passed into it, an.d, taken on board by Capt. Pender. The augers are pa<lked with: a large,numbet. of: Q@tom-house blanks of an importing house at Map,zanjl1Q., , Partridge, the master, aaysthat he replied to Roca,iwhen told to \Sink the brig, that ,"it couldn't be done;" but Roca insisted thJttdt mast be; thatrhe ,did not want the cargQ to go to EurQpe,. Pa:rtr,.iqge further:aaysthat he had no mea:Qs' to get.home,.and 'dflc;idetlho remaininthe'veBsel, take'he:!; to New York, and deliver herAio.the agents of Roca & Co, there; that he believed that 'Roca& Co.:werce her owners, although he.hadnopxoof of it; thttt he to Capt. Pender once tkat they had deposit,ed, $25,000 in, and. th:at was about all and, at another time, either that "he ,wa;srUQt owner/'or that "he did not want to be known aB owner;" ho. not say which. R-e had no other evidencll.as to who was ow:ner()f the vessel. After leaving Santa Cruz, the brig was .;1.9 reaching this portl where she ca.ma in for water on: the fourteent!,l dllY of ,Jan·uary.. T-he master Jl0t being able to obt;ain funds to pay QY 4j,s application to Wenberg, ,at New York, to· he i f ( ·
-'j
THE ALICE.
rettlained,incnrred expenses, had a part of hiseargo sold, and finally, the term of shipment of his crew having expired, advised them thai he could not pay them and that they would have. to resort to the vessel, which they did, by libel. She has been sold, the crew's wages and other liens paid, and this action now stands against a residue in the registry of the court. It appears, upon a final discharge ·ofthe cargo" that of the 524 bales of tobacco receipted for on the bill of there have been found but 62 bearing the proper marks, and these in a damaged and worthless condition. Portions of cargo upon other bills 'of lading have been found equally deficient. I have been thus particular in stating the case fully as it is admitted by libellants that their position is sustained rather by circumtaniial evidence than by any positive proof. There is no direct evidence of the number of bales of tobacco which went on board, as the testimony of the mate who took account of it as it came,olilboard has not been obtained, any further than the testimony of the entir,e , crew, that it cl1me along-side in a small lighter, and, together with 40 barrels of honey, was taken onboard'in between two a,nd three hours; that the hatches were then fastened and battened down,and so remained until opened here in port; and that nothing,was remove,d until it was ,regularly discharged here; thaldhey;neither.iwent into any port nor spoke any vessel from the time of leaving'Santa. Cruz Q-ntil they arrived at Key West. The statements of the BDtire:crew, respectable and reliable appearing, company:of men, agree in this" and there is not a qnestion or doubt in my mind of their 'trnthfulness. '" E:lperts have measured the vessel, and eomputedtbedimensions of: the cargo required to fill the:, bills of lading, and testify that in ,their opinion it would have been impossible for the vessel to have contained all the cargo that was in her, together with that which was shown on <the bills of lading but not found. There was on board in the bottom of the vessel. :398 .anee-wood (spars, 241 logs of mahogany, 60 logs ofcadar, 'and 133 pieces of ganadilla more than is stated on: any bill of lading; and these qua.ntities,together with those on the bills of lading, correspond with the amount shown by the cargo book of Partridget6 have Deen received on board; 1,139 bales of tobacco, 12 pounds of turlle·,shell.,45 tiercee .afharlay, and 160 bales of matting,covers"oalled,fof1;by the bills of .laqing, are ,not' to be fonnd. ,Either, this· quaatiity'iQfillargo never ,Went on ,boa.rd, or it was taken out ;and·r.ep!ace<L:by,ani
500
PEDERAL REPORTER.
ent class of merchandise between the time of leaving Santa Cruz and arriving in Key West. The cargo found in excess was also found in the very bottom of the vessel. Had the cargo originally corresponded with the bills of lading, to bring this excess in the bottom of the vessel would have necessitated a discharge of the entire cargo and a reloading. The probability of this would, be very slight, even putting the positive evidence of the whole crew a.side; but, when considered in connection with their testimony, it cannot for a moment be believed that the cargo appearing on the bills :of lading was ever on board the brig; and that the bills of lading are fraudulent cannot be doubted. The story of Pa;rtridge, that :Roca desired the sinking of the vessel, while it might be doubted ·ifstanding alone and uncorr()bol'llited, when taken in connection 'withJthe discrepancy of the 'cargo, hoiili explains>and is explained by it." AbiUof lading is always prima:facie evidence of flhelshipment of a cargo, but in ,this case the presumption oUts truth is entirely overthrown,andliri the absence :of positive proof to the contrary,the necessary conclusion is thatbthere 'was only the amount of tobacco shippeaunder the bill of ladirig,inquestion that was f<lundon board having the corresponding marks,. viz., 62 baleS'.· The libellants in their libel halVe alleged a cont1"actbetween Roc.a & Co. and the master of the brig, and the shipment of .theentire number of ·bales of tobacco as charged; but they have by their testimony shown.eonclnsiv.ely that but 62 bales were shipped. They now claim, nevertheless,.that Roca & Co. ,were owner.s of the vessel, and parties to the false bill of lading; that the deficiency in the amount of, cargo shipped unde:dt cannot be considered as'in their: favor,and;·th&,general owner being a party to the fraud, the damages for the- non:delivery of ithe524 bales of tobacco Should be found against the: vessel. The,geners,lrnle that ofthecarg9, under 'a bill ofJad. ing, is necessary to give it! validity, and support an action in rem, iii! well established, '(The Freeman v.Buckingham, 18 How. 182;- VtuJde. wa,ter· v.Mills, 19:How.82;,Pollard,V. Vinton, 11 FED. REP, 351;),and until thequestioll: 6f owDership.is determined it is not naeBB8ary tq inquire hOWl far tl;le fraud :of.theiowner, where proven by, the libel. lants, maygiV:9'JfIi lien upon his vessel, which will support an action in rem, :or ho:wfar' :sheh genera.!. rule is ,changed or va.xied' by the withta8 issuing of the bi1ls ofJading. Thig,vesselpwbile, in' NewYork,appeMS to have been ,Wenberg's. Partridge testifiesJh9.t· hewaa hired as ship-keeper and afierwards
501 as mate by him, and was paid by him for his services on 'board before sailing. The only document which the vessel is shown to have had, represented him as owner. On the-other hand we ha'V6 only the belief of Partridge, which he seems' to find difficulty in tracing to any foundation in fact more than random remarks of Roca. It seems that when in need of funds he first applied to Wenberg, and although the reply, which directed him to draw against his freight or on his owners, might raise of the ownership heing in some one else, it is not conclusive; Nowhere do we 'fi.na that· Roca & Co. assumed control. as owflers; the new master wasappointed by the· consul, appar0ij.tlywithout their knowledge, as Partridgestates that he tdok'the information of his appointment'to them by'a note from the COllSl'll. This would be proper and necessary in the way of business, were; Roca & Co.':but consignees;and·thefinal approvement of the appointment would in no manner prove ownership. " It is also aligned attempt to>have thervessm:'8unk as alleged would prove his' ownership; but wht}n the amounts which are shown to have been obtained on' ,false bills of ladingi'h.nd,the chaN acter of the attempted fraud, taken into.consideration;,jt can readily be believed that the pr6perty'in the vessel would :bo.' ,but a matter of small importance .to one entering upon such a soheme. A subsequent suit for wages8.s'matebrought by Partridgeagltinst them, in which it is alleged, that tPEly were,owners both of the brig and the unclaimed portion of oargo,. shows that it iBforhi$ interest that both ve{lsel be Jfound to belong;to the' same' party. Considering the entire case, I am not satisfied that the:proof of Rooa &, Co.'s ownership has blren'sufficient to justify suoh oonolusion, and this view a.way with, the necessity, of considering' the question of the result of fraud in the owner. ' :,. In every case where the goods have been shown noe to have been put on board; tke bill:of ladingrhas been held to be;vdid; and'although I have found..11Q pointcb'as been decided"there a.ppears to be no reasonable question but what the ameunt recei"-Eld}.whena oargo shown by a bill of lading has been but partially laden, should be the measure of the liability of the ship; and the question is as to damages for the non-delivery of the 62 bales shown to have been received on board. It appears that the tobacco was taken on board the twenty-fourth of Deoember. When examined here March 16th it was found damaged, and when examined again after being disobarged, May 8th, utterly worthless. The several experts who have
502
FEDEBALBEPOBTEB.
testified to its. condition agree that the length of time that it had been in the. hold of the vessel has been sufficient to cause its present condition. Cargo, when received on board, is presumed to be good until the contrary is shown, and this presumption is strengthened where the circumstances and time. of its .detention have been sufficient to produce any existing damage found. In this case, although no unsea· worthiness of the vessel has· beoo.. shown, yet that. is not sufficient gJ:ouniUo find that, had the vesselpursuE;ldher course to the declared destination,the cargo might not have been delivered in due time in good order.; ;The lapse of time",dampness of the hold, and heat of climate have combined.to ruin it. The delay of the vessel in· this port gave opportunity to two ofthesE;l elements of destructi<m, and it must be held to have been the cause. of loss. The present condition of the tobacco is shown to be such that no consignee could be obliged' to receive it, and the true measure of damages is its actual value or prime cost at.-the place of shipment. .The voyage had in no respect be,en comple.ted, ,or its and uncertainties passed. The supreme court has held in several cases that, in considering the measure of damages for marine torts; probable profit on merchandise should not be takeninto account,(The Amiable ,Nancy, 3 Wheat. 546; La Ami8tad de BuiB, 5 Wheat. 385; The Appolon, 9 Wheat. 362;) and such rule will apply ,with equal reason to a. case ,of brench of contract against the propertyo£ ostensibly innocent parties. This cost appears by the testimony to have been after paying export duties, shipping- charges, etc., about $22 per bale, or $1,364 in all, forwhic4 amount the decree. will f o l l o w . , The prayer for allowance of agent's expenses and proctor's ftles be;rond .the statutory, amount, although ,apparently just in ,amount, must be disallowed, in accordance with the ruling. of the supreme court. All of theo8Jses referred to and relied upon on this point have, been overruled since: the enactment, of the gener.al fee bill. Vide The Baltimore, 8 Wall. 392 ; Oelrichl v. Spain, 15 Wall. 230; Flanders v. Tweed, ld. 453.
603 'LINDSAY, GRACIE , (Ojrcuit (Jou1;t, .E.
& Co. V.CUSIMANd.-
n. " ·
1;
CHARTER-PARTy-CUSTOlURYDIBPATCH.,
c,
, 2.' EVIDENC1l: op"Tiili 'WEATHER-UNITED STATES SIllNALOFFICElRIS RECORD,' As againSt' aU :testimony given by 8S,t(), IUIUlU!1t,¥J:iq1il}faU, ,speaking of the weather without mmnoranaam,ade, 4t" tl1etime, the official,rec.ord of the "ignal officer at this ,station, kept. as a part,of his official duty, 'is undoubtedly the best evidence on theaubject. ,,:: f) "
The construction and eXill/lonation of the words in ,s, customary dispatch," as set forth in the opinion of the district "' judge in 10 FElJ: REp. 302, followed and adopted. J:
Admiralty Appeal. Joseph P. Hornor and Francis W. Baker, for libellants. Oharles B. Si:ngleton and H. Browne, for defendant. PARDEE, C. J ." Th'e'decision of this' ,ill theaistrict court, as reported in 10 FED. REP. 302,on thElquestions of law involved, is clear and, in my judgment, perfectly As, ,to the charterers, arising under the stipu.lations of ,the .ch/U'iier-pll.rly, "to discharge with customary dispatoh/, I concur fully andadopt,·that ',' :" r ,: , "'J ,,,: : ' :, On the facts I come to a different conclusion m regard to the rainfall, the delays oco&sionedbyrains. ",The cargo sQ.Quld have been discharged in five days. The' ship arrived on Tbursday,Janu21th. CountiJ;lg .Slst, Tuesday, February 1st, and Wednesday, the ,time for discharging had expired. The evidenceoffer4l'dbythe respondents shows, outside of loose as Hit rained tisai'lyaU the . "there was muoh rain," before Thursday, the third of Feo.ruary·. ", ", , ' ' , f l ' , 'discharging clerk respondentiwhokept' &'memorandum of th:edischarging, speaks'ofno'fliin:to Asagaiust all testimony given afterwards by wit:neases.speaking althe weather, without memoranda made;aLthe time, ,the official record of the signal officer at this 'station is offered." The signal station is not over a mile from t1ie Ship landihg, and the record having been kept bN:aiscientifie officer ;aB a part. ofhis:pffi,Qiald1lty, is undoubtedly the best evidenceattaiooble pn rthe subject. '; Thisrecol'd shows 11.29 of;an in'ch fall of' ra;i:n on Tttesd,ay"li'ebrultrY.,lat.'Jtnd -otherwise no rain at all from Janua.ry 27.th, to- ]J'ebrv-al'y (S'Ul; in9lusive. i , :, '{
-ReportediSjrJosephi!i. Iiofnari,r]jsqJ,' bf'tne 'Ne""Orlelhisblir," r f l '
504 Making, then, the most extreme allowance for rain, of one day, and it is clear that the cargo should have been wholly discharged, if "customary dispatch" had been used, on February 3d. AU delays after that date were the result afthe negligence of the respondent, and whether it "rained or shined," was Sunday or week·day, he should pay'demurrage for every day thereafter until the ship was discharged. Libellant should have judgment for eight days demurrage, at 30 pounds sterling per day, to contract. Letra j'u'dgment be entere<Hntfavor of libellantS' for the equivalent of: 24:0 pounds ster$97 for watchmen and ,tarling in'Ull;ited 'States paulins, with I'> per' cent. from February 15, 1881, and costs of Buit. >
f.,'
.".
"'''.
& Co.
>
,<,,..:\!,'.
'V.
,
'., " '
'{Oircuit Oourt, E.lJ.lLouigig,na. May 27,1882.). j
2.
l,,"t1STOM.
" :; .
To render a custom oruaage of tt!ide valid and binding, it must be known, certain, uniform, reasonable, and to law. An alleged custom of ,the port of New Orleans, by which of a ,f1'\lit vessel is commenced to be discharged for one day upon the wharf, and 'then the further discharging is delayed for one 'dsy to sell that part discharA'ed, aud then, if necessary, is further delayed another day to remove the sawe from the wharf, before proceeding to further discharge the cargo, condemned as unreasonable. 3... (''uSTO}URY DISPATCH IN .. Customary dispatch in discharging" means discharging with speed, haste, expedition, due diligence, accOl'ding'to the lawfUl, reasonable, well-known customs of the port of 'discharge. !tis as " usual custom," but not the same as" quiclt dispatch," wllich latter has been held to exclude certain usages and customs. 4. EvIDENCE AS'TO WEATHER-UNITED STATES, SIGNAL OFFiCER'S RECORD,
The'record of the weather, kept by an officer of the United States signal service, is' better evidence thereof than the testimony of witnesses who, having kept no record, afterwards swear to the state of the weather from memory. "
"
'
\
Admiralty AppeaI. On petition for rehearing. For facts, see,igamecase, 10 FED'. REP. 302, and ante, 503. Joseph P. Bornor/and Francis W. Baker, for libellants. Cha.rle. B. Singleton H. Browne, for defendant. ·Reported by Joseph P. Hornor, Esq., of the New