746
FEDERA.L REPORTER.
case was affirmed in all respects in 111 U. S. 120,4 Sup. Ct. Rep. 291. It is the established law, and it will require the acuter eyeoJi.a ,circuit judge to .<fisti nguish it from the present case. : l am unable to do so. The case; of. Tuttle v· Gaylord; 128 Fed. Rep.' 97, decided by Judge Con:, tollow.8thisdecision, and is in point here., ' " The ease of Bargent v. Yale"Co., 17 Biatchf. 249, reversed on another question, 117 U.S. 373,6 Sup., Ct. R.ep; 931, is not analogous to this. The case of Mowry v. Whitney, 14 Wall. 620, is undoubtedly established law. But I do not think"that the evidence here shows any, fruits of the advantage framusing the complainant's patent, within the guarded rules which the sup11eme oourt established in, that case. . ' , :Suffolk 00. iV. Hayden, ,3 Wall.. 315, <loes not confiiQt with later cases, such as Garretson. v. CZark, supra, or, Black v. Thorne, III U. S. 122, 4 Sup. Ct. defendimt ,rec.eived' the same adv,antage in the price of its, oils, from the fact thatitheYlwere>llre tested. the·Yacuum Company did. It is not ,certain ·tllat such aD; inference could be dra)VJ'l,butitis immaterial, in the view which I'take of ,thei case. I Itis not worthwhile to occupy time in the of the weight oftlJ,eevidence, and what tinllings it would justify against the defendant. :11nd'0r the authoritieswh.i<lh havl:j cited,l think that only nominal damages can be allowed the complaioant.
Rep.326.,\ ,;: '" " , ," , I have llisoussed this case.as IO.t was necessll.Dily to be inferred that the
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Qf:secti;ou 824, Rjl>v. St., allowing the ·taxationof $2.50 "for ,eacJ:l, d,tlMsjti\?)II.1 .au51 iii. a cause, " ,JI,ot':apply to testimony taken before a commISSIOner to dIstrIbute the !tom the, sale of a . " vessel in the registry of a court of admiralty. '"" '' ' . . 'A bilnltCliscounting a
or making her;a general loan . ' at her home'port, has'no lien against,tlie vessel, :either under the g,eneral mario timeilaw,or the Pennsylvania:aet of April 20, 181>8, xelating to boats navigat· ing,the rivers,Allegheny, or Ohio, '. 8iSAMEL..WAQBS-&rE:A.M-.BoAT,OUIi1RIL, " ',i' "" ,act,gives ,no lien to aderk none of his , du.t,iell'()ll, :1;lflar4),he steam-bpa.t! but Wholly on j,SAJ4E-:-oTRW,AGE-H OMEPOR',I\ .. : ' ':, . " , ,, , give a Hen ,far towing service at the hOme port. j,',
AT IiOME
PORT.
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"One'wliQ boardea hs,ndwhile engaged in taking care of disabled barges whic)J. had been in the tow' Qh'steam-boat, butwhichl!he had left behind her at a'pdtt in· another state, bas neitber a ,maritim.e lien, nora lien under the , , Pennsylvania act; 'against <the stllBIll-Jjoat.: " ,: ", ' , '8.' 'SOO--'M:A.TERLA'L ANI> La:1Jo:n;. "" ' " : One who, the master, provides the material fOI:, ,and does w,Qrlt,o, of f9r ha,s no He,n thereof, , , un,deJ;.theB,enn,SylVanIa, a,ot.;Wher,e th,e chImneys, were not delIvered or com" and. work was done On the b?at; work baving been stopped by or· , ,'" der of the Iiiaster, on account of the stllzure of the boat, by the U mted States :, . marshal. ,:; ',,: ' ,
BOARD. . '
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JAMES DALZELL'S SON ' &: CO.V.'t,1tll: ,DANIEL KAINE.
74,7
'flied May In Admiralty. Surexceptionstb 12, 1887. W. A. Lewis; Albert York Smith, (}; W;Willia1lUl, S. A. Ifill, Barton &: Sons, Knox &: Reed,and Wm; L.· Bifd,for the several exceptants. ACHESON,:T. 1. The disallowance of the proctor's claim to fees is approved. I think it clear that the provisions of 824, Rev. St., allowing the taxation of $2.50 "for each deposition taken and admitted in evidence in acause," does not apply to testimony taken before a COmmissioner appointed to make distribution of a fund in the registry of a court of admiralty arising from the sale of a vesseL 8fJiJrnpson v. Brooks, 3 B18;tchf.456; Nail Factory v. Corning,7 BIatchf. 16., It has never been' the practice ih this district, or (so far as I am advised)elsewhere,tDaIlow the taxation of such fees upon testimony takeii in such collateral prO" ceeding. ' 2. If the Duquesne National Bank, at the request of themasterofthe Daniel Kaine, had' paid the wages of the boat's crew,as was done in the case of The William F. Safford, 1 Lush. 69, the bank's claim tosubrogation to the rights of the crew might, perhaps, have prevailed, notwithstanding the advance was made at the home port. But the proofs, I think,' are' insuffidimt to' bring .the bank's case within the principle yoked. It appears that on the occasion in question, on the application of R. W. Cowan, the master of the boat, the bank discounted a note for $3.25, drawn by the steamer Ben W000 and owners to the order of the steamer Daniel Kaine and owners, and indorsed" STEAMER>DAN't. KAINE & OWNERS. R. W. COWAN, Captain." The Daniel Kaine'kepta running aCcount at the bank, and the proceeds oBhe discount weretpa!3sed to the credit of the boat generally. Mr. Patterson; the cashier of the bank, that when MI:'. Cowan presented the note he stated that the purpose of the discount was to payoff the crew. But Mr. Cowan testifies ,directly to the cohtrary. He most -p()Sitively denies that he made such statement. It seems that all the crew except the engineer, had been paid off three days before the note was discounted; and,in fact, no part of the money realized from the diacotmt was ')lsed to pay the crew, but it was all applied to another purpose. All the surrounding circumstances, then, tend to confirm Capt. Cowan, ahd to show that Mr. Patterson is mistaken in his recollection. 3. The services of Edwin F. Woods, in keeping the books of the Daniel Kaine, Were performed on laud, at. the home office of the boat. He was not a. 'member of the crew, and rendered no service onboa.rd the boat. Certainly, he was not a "clerk" within the' meaning of the:.Pennsylvania act of April 20, 1858, relating to boats navigating the rivers Allegheny, Monongahela, or Ohio. The Short Cut, 6 Fed. Rep. 630. Under this act, only persons employed on board the boat have a lien for their wages. Mr. Woods was not so employed. It has more than once been held that this act is not to be extended by construction so as to embrace claims not within its express terms.
· 7i!ll8,'
FJDERAL,REPORTER.
4. The itowing services rendered by the steamer Twilight to the Daniel Kaine having been performed at the home port of the latter boat, the generalniaritimelaw giveS no liell therefor, nnd a claim for such a service is not within the provisions of tIle act. ,The Bob Connell, 1 Fed. Rep. 218. 5. IUs not satisfactorily shown that the master of Daniel Kaine made the contract with John Robrecht for "hoarding, George Taylor," or for"haulirtgropei" but, if he did, I do not see that the contract was a maritime one. Ben. Adm. §§ 212,213. Besides, Taylor was not then, in the employ of the steam-boat,but was engaged in taking ,care of two disablelibarges which had been in the tow of the boat; but whiohshe had left behind her at Wheeling., Tbeservices of Robrecht; then, were not rendered directly to the steam-boat, and did not ,inure to,herbenefit"J?ossibly, he may have a claim against the owners of the Daniel Kaine, but he cannot proceed in rem against the' boot, or the fund derived from the sale thereof. " ' ,,6., ,mhe. inaster ofthebaniel Kaine ordered from p" W. C. Carroll & Co., Limited, a pair of chimneys for the boat,.and-the wl;lrk thereon had progressedr,aJmost to completion, when it was stopped by, order of the master, on account oithe seizure of the boat by the'Ularshal under the processi>f.this cpurt. No work whatever was done on the boat, and the chimneys have not delivered. A lien for the value of the materials used and work done on the chimneys is claimed under the Pennsylvania act already referred to. But-it-was held by Mr. Justice NELSON that in the case ,of a contract with a material man, or one for repairs, the liability ofthe vessel arises from the actual furnishing of the supplies, or the making of the repairs, and that the party claiming damages from the breach of cQntra,ct by the refusal to accept or permit performance must look to the master or owner personally, and cannot maintain an action inrern; against the vesael. The Pacific, 1 Blatchf. 570; The Oabarga, 3 Blatchf. 7p.These cases, although arising under the general maritime law, furnish a safe rule to for the claim, of D. W. C. Carroll &' Co., Limit,(ld,. is really for damljlges for breach of contract, whereas the lien given .hiY the Pennsylvania ,act is "for and on acc,ount of work and labor done, or materials furnishefi, by boat-builders, * * * boilerbuilding",l'epairing," etc., "of such ships, ateam or other boats or vessels." 1 Punl. Dig. 126.. I alnof the opinion that in rejecting the several ahove-mentioned claims the commissioner committed no error. And now, August 5,1887, the exceptions tp· the -/;laid report are'. overruled, and the reportis confirmed absolutely. . I
TlIE .YOUNU AlU;RIC.\.
749
TlIE YOUNG AMERICA. t GALLAGHER TIJE ,YOUNG AMERICA.
(Oircuit (JQurt,)f D. New York. 1887.)
I, 'TOWAGE-STRANDING OF Tow-NEGLIGENCE OF TUQ--'LJABILITY.
2.
. The tug Y. A:, while ,towiY,lg. a flotilla of canal-boats, which ltbelant's boat, inwro:d bound, through the Narrows, met an ice-field floating on the flood-tide, which caught the tug and tow on the starboard side. alid swept them in towards Staten' island, so that libelant's boat struck upon shore rocks, and. subsequently became nearly a total loss, Beld, on the evi: dence, th.at the strallding was caused by negligence on the part of the tug. '
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SAME,I;EAVING Tow AFTER'b'1,nA.NDINl;.
aC(lHlent, the 'tUg W.,a helper of the Y. A., detached libelant's boat· from the flotilla, and .bellched her at a !lafe place. Subsequently the W., :with the of the li:belant, and withhim on board, came to New 'York' for leaving no one in charge of the boat: On their returu .the boat-was found in possessIon ofa local wreck-master, under'color thority.,·Whorefused yield hllr up to the W. and her wrlleking party,' and took; out the coal,cut up the boat and sold her as old There 'lias 'noallegation in the .libel of negligence on the part of theiY"Al after the/stranding. Held, thitt. the.re was no liabilitY': on part of the bIg for d,ij.mliges after because absence of ,a in,the libel of neglIgence, if it dm not preclude'thil court from permitting' ll. rec'overy on that ground, tended to show the libelant himself did not,consider the, tug negligent in that regard; (2) because the damages arising from the aqts, of the wre<:k-master were not a sequence fairly to be anticipated from the IICt of the W. in leaving the boat with no one on board; (3) because the libelant'acqlIi'esced in the departure of the W.\;and went with her, whereas, if any Qne wall required to remain in charge of the. ,boat, he should mained llimself. . ,
Henry G,. Ward, for claimants. Joffiah Hyland, fQr libelant WALLACE, J. The libelant was the owner· of the canal-boat. Beekley, which, while in a flotilla of 24 canal-boats in tow of the tug Young America, struck upon the rocks on the Staten island shore in the Narrows, near Fort Wadsworth, and subsequently became nearly a total loss,. The libel, filed against the tug to recover damages for the JOBS, alleges Mgligence' OIl the part of the tug by reason ·of not keeping. the tow. further out in the channel, and away from the Staten island shore, and by reason of not keeping a proper lookout, and not having on board the tug a competent and skillful pilot. No other acts of negligence on the ,part of those in charge of the tug are alleged. The answer of the tug alleges tha.t on reaching the Narrows she encountered an ice-field, which came ':lioating"on the flood-tide from the lower bay, and caught.the tug and to\V starboapd side, and swept them towards the Staten island shore; that the tug Winnie, which was the tug Young Arnerfcaasa: 'helper, attempted to break the ice-field, and every effort was hiade to prevent the setting of the tug and tow towards thee>hore, but 'without avail; and the resultwas that libelant's boat touched the shore,
1 Reversing,
26 Fed. Rep. 174.