THE WISCONSIN.
283
requirements of the statute, to assail the validity of the complainant's patents. Therefore the case stands solely on the question of infringement. Both patents are infringed, and there will be a decree accordingly, and perpetual injunction. It mayor may not be that defendant's patent is an improvement; but whether that be so or not, he cannot infringe the plaintiff's patents, the validity of which is undisputed. As to the damages, B. Gratz Brown will be appointed special master pro hac vice.
l'HE 'WISCONSIN. 1
(Oircuit Oourt, E. D. New York.
July 14,1885.)
COLI,IaIONAND BAHK-MrS'rAKE AS '1'0 LIGHTB-FI,ARE- UP-BLUE LIGHT -PILOT BIGNAL.
The decision of thc district court in the same case (23 Fell. Hep. 831) aI· firmed.
In Admiralty. In these two actions against the steam· ship Wisconsin, which were argued together, the court (BLATCHFORD, Justice) made and filed the following findings of fact: (1) .A. little after 1 o'clock on the morning of December 14, 1882, a col-
lision took place between the bark Ella, belonging to the mercantile marine of the United States, and the British steam-Ship Wisconsin, in latitude 40 deg. 40 min. N., and longitude 68 deg. 40 min. W., the stearn-ship being bound from Liverpool to New York and the bark from Buenos Ayres to Boston. with cargo, in consequence of which the bark was injured on her starboard bow, and her cargo was damaged, The bark was close-hauled on her por5 tack, on a course N. N. W.· the wind being W. or W. by N., and had set reefed foresail, foretop-mast-stay sail, maintop-mast-stay sail, and reefed spanker. The wind was blowing strong, and the night, though dark, was clear, and a good night for seeing lights at a distance. The bark was making between two and one-half and three knots an hour. She was of 654 tons burden, and was owned by the libelants in the first suit. She was about 145 feet long. (2) The steam-ship was of 2,386 register tons burden. 400 feet long, was loaded by the stern, had about 15 feet free-board amid-ships, and was about 18 feet out of water at her stem. Her bridge was located about 130 feet aft of her extreme bow. She had two lookouts on the bridge, who were competent and experienced ,seamen, and each of them was carefully attending to such duty, and had no other duty to attend to. The second and fourth officers were also on the bridge. It was the second officer's watch, and he was in charge of the naYigation of the steam-ship. Hoth of those officers bow. were keepi ng a careful watch and lookout. There was no lookout on Only one of the lookouts has been called as a witness or accounted for. The steam-ship, before sighting any light on the bark, was moving at the rate of 11 knots an hour, and wason a compass course of W. by N.l N., which was 1 Reported
by R. D. & Wyllys Benedict, of the New York bar.
284
FEDERAL REPORTER.
a true course of W. She could be stopped from full speed ahead to dead in the water in three or four times her own length. Her half speed was about nine miles an hour. Her slow speed was about seven knots an hour. (3) The steam-ship was upon the crnising ground of Sandy Hook pilots, and the master desired as soon as practicable to obtain the services of such a pilot, and the officers on deck were carefnlly looking out for a pilot's signal. By rule 11, § 4233, Rev. St., it was provided as follows at the time of said collision: "Sailing pilot vessels shall not carry the lights required for other sailing vessels, but shall carry a white light at the mast-head, visible all around the horizon, and shall also exhibit a flare-up light every fifteen minutes." The same provision of law was, at the time, in force by British authority in regard to British vessels. (4) The white mast-head light of the steam-ship was made by the bark a little forward of her starboard beam, and aoout five or six miles distant, about half an hour before the collision happened. After the steam-ship's said light was first seen, it was constantly watched by those on the bark. About 15 minutes later, the master, the first mate, and four seamen being on deck, the red light of the steam-ship was made out from three to four miles distant, and thereupon a flare-up light was burned upon the bark, on her starboard quarter, which was seen by those on the steam-ship, bearing about two point!J forward of the port beam of the steam-ship. The second oJTIcer of tllfl steamship examined this light with his glasses, and thought it was on a pilot-boat, which was headed about N., on the wind, and sent the fourth ofllcer to call the captain. '.rhe captain went immediately upon the bridge, and it was announced to him that tho flare-up light of a pilot-boat had been seen, and the direction it'bore from the steam-ship was stated, and under his orders a blue light was burned on the steam-ship, as an answering signal to a pilot-boat, which is the only boat to which such a signal is given; and the blue light was seen by those on the bark, and it was promptly answered by her by another flare-up light, thus confirming those on the steamer in the judgment they had formed, that the approaching vessel was a pilot-boat. The watch below of the steam-ship was then called on deck, and they got a ladder ready to put over the 'lide of the steamer to receive the supposed pilot when he should corne along-side, and thus all the watch were on deck carefully watching the bark. A white light was also seen on the approaching vessel by those on the steam-ship, and was taken by them to be the white light at the mast-head of a pilot-boat, and the helm of the steam-ship was put to starboard, and she bore away for the approaching vessel, changing her heading from W. by N. iN. to S. w. i W. Her preVious course was such that if it hact been continued she would have passed the bark about four miles to the northward. (5) ·When the steam-ship was at a safe distance from the bark, he1 engines were stopped, and her headway was substantialiy overcome, waiting for the pilot to come along-side in his boat. (6) Afterwards, and when the two vessels were within a short distance of each other, a dim green light on the bark was, for the first time, seen by those on the steam-ship. It was seen through glasses, and sooner than it cuuld have been seen by a lookout on the bow, and as soon as it could have been seen by anyone on the steam-ship. It was an improper and insufficient light to be used as a signal light upon a vessel at sea. Tlw engines of the steam-ship were at once backed strollg, and she had, at the time of the collision, little, if any, headway. As the bark forged ahead across the bows of the steam-ship, the starboard bow of the bark came in contact with the stem of the steam-sbip.
And the court also made and filed the following conclusions of law: (1) The steam-ship was guilty of no fault. (2) The bark was in fault for not having a proper and sufficient light. The bark was also in fault for showing a flare-up light after seeing the
THE TWO FANNYS.
285
Accompanying the foregoing findings was the following opinion: BLATCHFORD, Justice. Concurring fully in the opinion of the district judge in these cases, (23 Fed. Rep. 831,) I can add nothing to what he has there so well said.
blue light burned on the steam-ship, and thus leading the steam-ship to sup pose that the bark was a pilot-boat. (4) The libel in the first case must be dismissed, with costs to the libelants in the district court, taxed at $335.50, and costs in this court, to be taxed; and the libel in the second case must be dismissed, with costs to the libelants in the district court, taxed at $335.50, and costs in this court, to be taxed. Scudder tX Carter and Owen tX Gray, for libelants and appellants. Wilcox, Adams et Macklin, for claimants and appellees.
rHE
1..wo F ANNYS.
(District Oourt, D. New Jersey. June 13,1885.) SEAMEN'S WAGES-FoRFEITURE-LEAVING DURING MONTH.
A sailor who leaves the vessel because he is told by the mate that the master claimed he was not to receive wages, but was serving for his board only, will not forfeit his wages for the time he has served, where there was no contract ;hat he shoull! perform a fnll month's service before any wages was earned. Hoore v. Neafle, 3 Fed. Rep. 650, followed.
Libel in rem. Bedle, Muirheid et McGee, for libelant. C. F. Hill, for respondents. NIXON, J. This is an unfortunate controversy,-one which ought never to have arisen, and which never would have arisen if the master had more clearly explained to the libelant the conditions under which he was hired. The sailor is generally helpless, and in all these disputes with the master about wages he is regarded as under the protection of the court. When, therefore, the master leaves so much uncertainty and indefimteness about the terms of the bargain with the seaman, he must not complain if all doubts are resolved in favor of the more ignorant party to the contract. There is no dispute between the parties in regard to the time of the service, or about the rate of compensation fOl the first month. The libelant v{as to be paid at the rate of $20 per month while the boat was lying up, and was to board himself. He has received $20 in cash, for his services from January 19th to February 19th while the vessel was idle, and the parties are thus brought up to the nineteenth of February without much controversy. She then started with her crew, and the libelant began his services as cook and before mast. His understanding was that he was to have at the rate of $20 per month and board, without deduction when the boat was idle, and the master claims that when he could get no freight, either the wages or the
286
board of the libelant should stop. The libelant claims in his ··libel that there is due to him $16 for his services from February 1\:lth to March 14th at the rate of $20 per month, and board. The answer denies that respondent owes such sum, (1) because he has paid at least a portion of it; and (2) because the libelant has forfeited all wages by desertion. The proofs show that the libelant has received at different times $24 in cash. Of this $20 must be appropriated to the payment of his dues as keeper from January 19th to February 19th. The master says that the remaining four dollars was paid by him to libelant for grub, which the latter should have provided. The testimony is not clear upon this point, but I think the weight is in favor of the respondent. This sum, therefore, should be deducted from the $16 earned after the boat started, leaving due to libelant $12, unless some part of his wages should stop when the boat was doing nothing, and unless he has forfeited all wages by deserting the vessel. 1. I think no deduction should be made from the libelant's wages after the boat received her crew and started on February 19th. No bargain was entered into, and the libelant was employed by the same master during the preceding season, when no docking of wages was claimed or made when the boat was idle. The libelant had the right to assume that hEl would receive the same compensation for the current year, unless some new arrangement was definitely agreed upon. 2. With regard to forfeiture for desertion, the libelant undoubtedly left without the permission of the master. He did it because the mate told him that the master claimed that he was not to receive wages, but was serving for his board only. Under the circumstances, did he lose the right to claim wages for the portion of the month which he had served? The contention of the claimant is that the hiring was for a definite period, to-wit, for a month, and that if the libelant left before the month expired, without permission, all wages earned to the date of leaving was forfeited. That is unquestionably the common-law rule; but it is not applied in the admiralty, unless the proof is clear that the contract was for a whole month of service, and that the master, according to the custom of the parties, was liable for a full month's pay if he should discharge the seaman without cause before the month terminated. But the testimony shows that such has not been the custom in this branch of the maritime service. The vessel made no voyages, but was engaged in carrying freight in and about New York and Newark bay. 'rhe crew were picked up and discharged according to the will of the master. The !'ate per month indicated the rate of compensation, and not the length of the service. When the sailor chose to leave, or the master wished to discharge, the sailor was paid up to the time of leaving, at the rate per month for which he had been hired. If such a course leads to inconvenience, the master has it in his power to change it, by entering into a definite contract as to the time of service as well as to the
THE
FRANK.
287
amount of wages. The rule must be interpreted to both ways, and while the master claims or exercises the right to discharge when he pleases, the sailor must be allowed to go when he pleases. The subject was carefully examined by Judge CHOATE, in Moore v. Neafie, 3 Fed. Rep. 650, and I see no reason to doubt the correctness of the conclusions which he reached. There was nothing in the con· tract in the present case which required the libelant to perform a full month's service before any wages were earned, and there must be a decree in his favor for $12, and interest and costs.
THE FRANK. (Ditltrict (JOU'l't D. Min1l&ota.
November 8, 1885.)
TOWAGE-LIEN-LACHES-BoNA FIDE PuRCHASER OF VESSEL.
A lien for towage must be enforced without undue delay, and unless due diligence is exercised it is waived as against a purchaser without notice.
In Admiralty. G. W. Walsh, for libelant. O'Brien, Eller d: O'Brien, for claimant. NELSON, J. Libel is filed by St. Louis & St. Paul Packet Company lor towage of barge Frank from St. Louis to La Crosse. 1. The towage was completed and the barge landed at La Crosse in August, 1883, where the owner of the steam-tug had an agent, or some person to look after its business. At that point she was detained by an agent of the libelant for about two weeks for the towage bill; but it does not appear that any legal proceedings were initiated to enforce the lien. She then left La Crosse for Dubuque; "let go," according to one of libelant's witnesses, Reis, upon promises, or released after being retained by Holmes, agent of libelant, as testified to by Greiner. The libelant had two weeks in the summer of 1883 within which to enforce the lien against the barge at La Crosse, and on her arrival at Dubuque, where another agent of the libelant reo sided, opportunity to enforce it was again given until at least the last of January, 1884, when the sale was made to claimant, Hansel. He did not take any steps to hold the barge. Such negligence is not satisfactorily explained.. The rule is well settled that a lien of this description should, without undue delay, be enforced, and unless due diligence is exercised it is waived as against a purchaser without notice. The towage bill should have been within a reasonable time enforced, so that, if the claimant is a bona fide purchaser, the lien for towage is waived by laches. 2. More than two years intervened bet.ween the towage service and the commencement of this suit. Reis and Greiner were engaged as