,.HE A 'fLAB.
54&
but complainant insists that one side of it is a dummy. which does not engage with the flange, and that thus the engaging sur16ce is in fact a cone. Upon all the evidence I am of the opinion that the complainant has not established his contention by a fair preponderance of proof. In view of the disadvantage, however, under which the moving party labors in motions of this kind, should send it to a mast,er to take further testimony on this. point, were I not satisfied that a cross-grain engagement must, upon every application made at the foot of Judge WHEELER's taken as au essential element of the patented combination. Nor is this conclusion modified hy a careful examination of Judge NIXON'S opinion in Mundy v. KendaU. 23 Fed. Rep. 591. The learned judge in thatc!!-8e only indicates what upon the affidavits before him he understands to he the extent of Judge WHEELER'S decision. If the record which is presented here had been laid before Judge NIXON, he would no doubt adopted the same construction as that indicated IfUpra. As to the alleged infringement arising from the furnishing by Mr. Wormer ofl;)t. LouiEl oftwo springs to be used in old model machines sold without them, I do not think his relations to the defendant are such as to warrant . it for his act, in the absence of any evidence from which acquiescence in such act can be inferred. As to his sale of the" two old infripging machines, however, the defendant has not shown the same care .in notifying him of the injunction, and its effect, that it used in the case of its goods on sale in Boston, Philadelphia, etc. This carelessness has caused a violation of the injunction, constituting a technical contempt. A fine of three times the royalty which complainant charges, in analogy to the provisions of the law as to damages, would an l:ippropriate penalty therefor, but the exact amount may be dewrmined upon settlement of the
THE ATLAs. l THE
LIZZIE Wn..80N. 'l1.
CHADWICK et ale
A'fLAS S. S. Co.
(District Court, E. D. New York. March. 7, 1888.) CoUIMON-STEAM AND SAIL-FAILURE TO KEEP PROPER LoOKOUT.
The steam-ship A. was bound down the Atlantic coast on a comparatively clear night, when, some 50 mile/! south of Barnegat, she collided with the schooner L.W.. For the damage the steamer was libeled, and set up in defense an allegeli change of course on the part of the schooner, averring that the :lirst light of the schooner seo.n by her was the green light over her starboard bow, wherellPon her wheel was starboarded; that the Ijght afterwards changed \0 red. oli which the steamer's wheel was ported,_ but too late to avoid the collision.· The schooner swore that her course wits not changed. From the .G. lll\nedict, Esq., of the New York bar.
1 Reported
FEDERAL REPORTER.
It appeared' eithetl that the light seen by. the steamer· wall the Ugh!. of some other vessel than the L. W., or else that tho schooneJ: was never seeu , by.those on the steamer until they were upon her. Held, that the collision was due to want of proper lookout on the steamer.
In Admiralty. Libel for damage. Goodrich, Deady &: Goodrich, for libelant. Cary &: Whitridge and George A.. Black, for claimants. BENEDICT, J. This is an action to recover damages for a collision which oCl?url'ed on the high seas about 50 miles south of Barnegat, on the 18th of August, 1887, between the steam-ship Atlas and the schooner Lizzie Wilson. The decision ()f the case is, by the pleadings, made to .turn upon the question whether the schooller changed her course, and threw herself under the bows of the steamer. The steam-ship at the time was bound down the coast, and the schooner up the coast. There was a fresh breeze.-the schooner sailing from eight to ten knots an hour, and the steam-ship about the same. The night was thick, but not so thick as to prevent vessels' lights being seen at a:considerable distance. The mRsterofthe steamer says a greEln light could bfj seen at the distance (){ a mile. According to the' testimony of the· men· from the schooner the steartler's lights were seell two miles away. I cannot find upon'the vidence that there wasRny difficulty on the part of the steamer in seeing the schooner in time to avoid her. The steamer asserts that the schooner changed her course, and in support of her assertion produced witnesses 'from the steamer who testify that as the vessels approached each other the schooner displayed' to the steamer first her green light, which waS seen over the steamer's starboard bow,-and the steamer'swheel that afterwards the schooner showed her red light, and the steamer's wbeel was at once ported, but too late to avoid the schooner, then crossing the steamer's bows. From the schooner there is positive testimony that the steamer was seen on the schooner's port bow; that the schooner held her course; that when the steamer was near the schooner she suddenly starboarded, and came across the schooner's course, and so ran her down. At the argument it was c()nceded on both sides that it was impossible to reconcile :the testimony given by the respective parties, and this is true in regard to some of the testimony. It seems to me, however, not wholly impossible to reconcile much 'of the testimony by supposing that the green Hght said to have been seen by chief officer of the steamer was not a light of the Lizzie Wilson, but of some other vessel. As already stated, the assertion that the schooner changed her course is sought to be proved by testimony from the steamer tending to show 'that the schooner as she approached displayed W the steamer first her green light, and afterwards her red light. If it be supposed that the ,green light which the chief officer of the steamer says he saw off his starboard bow was not a light on the Lizzie Wilson, but the light of some other vessel at the same time bound up the coast, on a course to westward of the course of the LiziieWilsollj that the attention of those on
·THB ATLAS.
the steamer was fastened on this light, so that, although the red light of the Lizzie Wilson was visible on the port bow, it was not seen until the steamer starboarded to give more room to the green light on the starboard bow,-the conflict of testimony is easily understood. This suggestion is not without some support in the testimony. For instance, the wheelsman says that before the order "hard a-port, "and after his wheel was hard a-starboarded, he looked out of his window, and saw a green lightabo'1.lftwo points on the starboard bow, and a ship's length away. But before this, the master of the steamer,-who jumped from his room to the bridge while the wheel was being starboarded,-when he reached the bridge, and while his vessel was swinging to the east, under a hard a-starboard wheel, saw the red light of the Lizzie Wilson, and she was nea); enough to allow her sails to be seen. If this be correct, the green light which the wheelsman saw after the helm was hard a-starboarded could not have been on the· Lizzie Wilson, but must have been on another vessel coming up to the westward of the Lizzie Wilson. But this Bupposition, if adopted,condemns the steamer for not seeing the Lizzie Wilson in time to avoid her. If the suggestion be not adopted, then the case resolves itself into a question of credibility, and in this aspect the weight of the evidence appears to be in favor of the schooner. I am not able to find ·from the evidence the fact to be that the Lizzie Wilson was at any time displaying her green light to the steamer, or that the Lizzie in presence of a steamer .known to be approaching, without son suddenly threw herself under the steamer's bows, at the risk of total destruction. The testimony from the steamer affords good ground for the belief that no one on the steamer saw the Lizzie Wilson until .they were upon her, and that the cause of the collision was failure to keep a proper lookout. This plainly appears in the testimony of the witness ltube, who was on the steamer's bridge. This witness says that he was the first on the steamer to know of the presence of the approaching vessel; that he sa:wfirst the schooner's sails, then her green light, and that a collision was imminent before any order was given on board the steamer. If this statement be true, no testimony from the steamer respecting the change of the light from green to red would be of any value to show that the cause of the collision was a change of .cOl,lrse on the part of the schooner, for whatever was seen from the steamer was seen after the collision was inevitable. My conclusion thp.refore is that the steamer has failed to show that the cause of the collision was a change of course on the part oUhe schooner, and that, on the contrary, the witnesses from the steamer themselves prove that the cause of the collision was want of proper lookout on the steamer. Let a decree be entered in favor of the libelants, with a reference to ascertain the damages. v.34:F.no.7-35
I'BE BRIT!ANNIA. 1 , TBE13EA,CONSFmLD. ',i
CLEUGH'V. THE BRITANNIA.
LA
COMPAGNIE FRANCAISE COTI'ON
1
VAPEUR V. THE BEACONSFIELD. AND THE
v.
THE
(District O'Durt. S.,n.New York. March
t. ,
BE'l'wEEN ,STEUlER8-6:RoSSING
ARTING MANEU-
2.
A crossing steamer; required by old rule 18 to keep out of the way of, auother vell,sel is bound at her,p/lril to take into account all the circumsta,nces, includhig both the speed and neadingof the other., The latter has Jioright " to thwart the A vessel's stopping is not "keeping'her , course," but is a violation of rulei28, and 'a fault, specially so after an agreement by signals, unless its 'necessity in order to avoid collision is reasonably certain. Till then the privileged v.essel must rely on the other's performing her duty; and the burden' Of proving the necessity is on the former. Mere doubt and 'apprehension are' not sufficient to justify a departure from the rules py,the adoption oIa maneuver. , ' , SAME-PRIVILEGED
Rule 22, in requiring the privileged vessel "to keep her course," is not designed to confer a favor or p:r.ivilege, but to impose an obligation 'in order to enable thll other vessel with certainty to keep out' of the way, After the other's intention is know)}, or, an agreement by signals had, the former is bound upon any challgethought necessary, to give notice of her intention by any available signals, either danger signals, under superVising inspectors' rule 8. or the short blasts provided, by new article, 19, when these would be certainly understood.
OF COURSE-SIGNALS.
8.
SAME-STATE STATUTES-ON WRONG SIDE OFCII4.NNEL-PROXIMATE CAUSE.
Where the statutes require vessels to keep on the right·hand side of the river channel, a colliding vessel will not be held iljl fault merely because she was in the wrong part of the river, if there was, nevertheless, ample 'time and space to avoid collision. Bad navigation is then deemed the only proximate cause. But in case of an unexpected crossing from the right to the wrong side of ,the river, which causes embarrassment to the other, or such reasonable apprehension of collision as leads to erroneous orders by the other vessel, whereby a collision is produced, ,the former's disobedience of the statute should be deemed a contributing and proximate cause, which renders her , liable. . , The Beaconsfield, going out of the East river. came in co11ision off pier I, in the northerly, third of the channel. with the Britannia, which was turning up the East river. They exchanged signals of one whistle when two-thirds of a mile apart, arid when the Britannia was just past Governor's island. Both understood that they were to pass port to port. The latter had to make!, &win/\,of about 6 points to atMPp.ara,. Owing to the ebb tide and the high west wind, her swing to starboard during the first minute and a half was much delayed, whereupon the Beaconsfield, uncertain as to the other's eventual course, reversed when 1,500 feet distant, and came to a stop in the water without giving any signal to indicate ber change of intent. The helm of the Britannia was all the time hard a-port, and she would have gone clear had the Beaconsfield kept on. Her swing to starboard was perceived directly after tha
4.
SAME-NEGLIGENCE.
Reported by Edward G. Benedict, Esq., of the New York bar.