328

FEDERAL .REPORTER,

vol. 40.

EL:tCTRICAL ACCUMULATOR CO· .".

NEW

YORK

& H. R.

CO.

et at

(Oircuit Court, S. D. New York.

October 25, 1889.)

L

PATEN'l'S;FOtt INVENTIONS-INFRINGEMENT-EI,ECTRICAL ACCUMULATOR.

I. BAME.· . f Itappeared that defendants also made eleotrodes by foroing the dry powder into the interstices of the grid by.hydraulio pressure, and then moistening the grid with fluid. 1)ywhich the pOWder is saturated with the fluid; the mixture hardening by the same process as when mixed bY: the other method. .HeW. that this prooess was likewise an infringement of olaim 1 of such patent, which covers any oase where the ll\pplication of the aotive material to the plate, in the form of a paste· . paint, or cement, is completed. so as, to leave the plates ready for use "prior to their immersion in the battery fluid...

On motion for a preliminary injunction. against the infringement of lette1"s patent No. 252.002,issued January 3, 1882. to O. A. Faure. it appeared that defendant's electrodes were made by mixing the dry powder 'of the active material with 2>6 per cent. of fluid. and applying the mixture to the plates under hydraulio pressure, by which preslmre the particles of the powder and of the fluid are brought into oloser .cOhesion, O.f the. partioles of the m.ixture, and ad.hesion to the plate; the ,fluid being an ipdispensableagent. Held, that the mixture at the moment of application, is a true paste, and, as suoh, an infringement of olaim 1 of such patent, .WhiOh is for the applioation of the aotive layer "to the supports, [[electrodes. plates, or grids,l in the form of a paste, paint, or cement, prior to the rimmersion in the battery 'fluid...

In Equity. Bill for infringement of letters patent .No. issued January 3, 1882, toC. A. Faure.· On motion for preliminary in'. ..' junction. '.. . Betts, Atterbury, Hyde Betta,CFredk. H. Betts, of counsel,) for complainant.' , ' , .. ' . , Starr & Ruggles, (Tho8: W. Osbo'rn, of counsel,) for defendants. LACOMBE,]. The question whether or noUhe battery plates used hy the defendants are infringements of the first claim of complainant's (Faure) patent, as it.stands after filing of the disclaimer, is to be determined in view of the constructiongi,ven tQ that patent by Judge COXE in the aotionbrought by the complainant against the Julien Electric Company. 38 Fed. Rep. 117. Under that construction, what Faure discovered was the application of the active layer lito the supp.orts, [electrodes, plates, orgrids,J in the form of a ,paste, paint, or cement, prior to their immersion. in the battery fluid." After hearing the testimony as to the experiments of Brush, and the other proofs as to the prior state of the art, which are again pr'Jsented ·on the present motion, Judge COXE found that the invention was one of more than usual merit, and allowed plaintiff to file a disclaimer, which should save him what he discovered. Defendants' plates have been made in either of three ways: Fi:r8t. By the use of an active material containing over 10 per cent. of fluid. This they concede to be a paste, and assert that they no longer use it. Second. By mixing the dry powder with about 2l per cent. of the fluid, and then applying the mixture to the plates or grids under hydraulic pnsure. The mixture. before application, does not present the appearance of an ordinary paste; but when it is subjected to high pressure, and when

ELECTRICAL ACCUMULATOR CO. "'. NEW YORK &: B. B. CO.

329

the particles of the powder and of the fluid are thus extended, or brought into closer contact, there ensues either molecular or chemical action which produces what is known as "setting," the particles of the mixture adhering to each other, and cohering to the grid. To the production of this action the fluid is apparently an indispensable agent. No other satisfactory reason for its use is shown. Whetherornot, therefore, a mixture of dry powder with percent. of fluid is a paste while in the mixing tub, it seems to be a true paste at the moment ofapplication. Its components are substances by whose combination a paste may be formed, and such mixture acts as a paste' does. Third. Defendants also force an absolutely dry powder into the of the grid by hydraulic pressure. While the particles of the ,powder, thus compacted together, are still in place, the grid is moistened with the fluid, either by brushing it over, or by applying it to a carpet saturated with the fluid; 'being laid fornmoment first on one side and thenonthe other upon the carpet. Sometimes it is also dipped momentarily in a bath of the fluid. The result of these processes (or either of them) is a: saturation of the powder. The percentage of fluid in the mixture thus formed is not stated, but it is probably consiilerably higher than the per cent. of the second mixture. The mixture thus formed on the grid hardens in a few seconds, apparently going through the same process of setting as when mixed in the other methods. The defendants claim that this last process is the same as that used by Brush in the experiments proved in the former case, and, that therefore it is still open to them, despite the affirmance of the first claim of Faure, as modified by the disclaimer. They contend that all Faure did which Brush did not was to mix his paste before he applied it to the plate at all. This, however, seems too narrow a construction of Judge COXE'S opinion. If that is all that Faure invented, it is difficultto see in what respect his discovery merited the encomiums passed upon it in the opinion. What Brush did was to immerse a plate coated with dry material, not only into fluid, but into the very fluid in which it, was forthwith, and without removal therefrom, put to use as a battery plate. If such immersion of Brush's dry material in the battery fl uid did not form a paste because the electrical action to which it was subjected prevented its setting (which is what complainant claims.) Brush's experiments did notahticipate Faure, who did discover, the use of pastP... If such immersion of Brush's dry material did form a paste, it was. .formed after, and not before, the immersion of the plate in the battery fluid. Complainant's however, covers any case where the form in which the layer of active material is applied is that of a paint, paste. or cement; the application of such paste, paint, or cement being completed, 80 as to leave the plates ready for use, "prior to their immersion in the battery fluid.» Whether the paste .is compounded in the mixing tub, or on the surface of the grid, seems immaterial, if the paste, etc., is in factformed t and that process completed, before immersion for battery purposes. The Brush experiments, however, would no doubt cover the defendants t fourth method, as described by their witnesses, viz., where a

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iacompactecl upolltpegrid -by ,pressnre,<8nd no until, the pllLte gOefi into use in the battery· a.ccor-

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TD:, MARCHIONESS.'

14, 1889.,

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SUBn. " , "WOOn a ship is compelled by lltress' of weather to moor 'to B wharf for safety of ,ltillelfand tlm ber raft,' it thereby aubject,8 itBelfto a ohari' for wharfage, ',

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_tn,'be the e,U,sto, 'mary, oharge fOI."Wh,arta,ge. and willnotbe,lIredicated 011 Ute d8ll".
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to

Mnount allinved

la:.AJdmiralty. , Li1J>el, for O.i4wrY, for libl'llant.·, '. ,]Jld:rJ,nt :e.t ,Blw.nt,· for claimants· .... ' I TOUWIN,' J. ' ItappeaIlBthat,the libelant wM th,eowner and operator of a wharf used as a mooring place for vessels and timber at PenS8,cola, I and-that the ship, MarehipnesS was driven by:sev:ere wind or came near andl W88: moored: to: said ,wharf, with several hundred pi'eces of timber·Which.-,the vessel·bad iIicharge,andwbich:weresecured by the vesI sel being :fast to While the p<!lsition in which the ship foundiherself.",t the1imeshem,deJastto thewharf:migbtnothave been voltintarYt' her'malcing fast to :it was a voluntary act, ami, the wharf be)ing 'there ;fei' that purposel' the' law' impl'ied a contract .to pay a reason,able, eompensation Jor, the ,use of' the wharf fQrmooring purposes. ,Plte Rep. 619. The 'Whitbum, 7 Fed; 'Rep. 925; ,Packet . 16 " ,.ir-" ,';: Illallowin,; wharfage case I ,do not think I' &hould ·consider .thll Jdanger lolthewhnd, under thecircumstanoes of theparticul.ar case; but .shotildawarda;reuonable wharfage charge"according'to the usages and ,of:rthis ,port. JshQwn,hy. the: evidence' in·· the' case. I do 'not by the consideration,thaHhe:wharfmight J.hay.&,been grll&tly,dama.ged'ior:booause there .waa:a $tormprevailing at _fthei ti1116" ;:,The tlibelant, p.oea Iiot,'lindeed,. <ioulil claim. in. this .pro"ceadimg,:or,ona!of.like,cbaracter,(lompElnsation,:fQil'-theservicereI)deted . in saving the\!essel qnd timber:Jrom loss ,Of damage, or for, ,damage to .bis whtlol',f, if W8Iil iany",bat oclaims, what in myjudgment he ,:bas a ,:right: to,claiinl'reasolll4ble.odtnpensation in the nature of wharfage. To ': deteJlmk\el ,is, ,reasonable in this cas,e, I must ascertain ,:wbat-oit, ia:'tlSJ1ali to iqrfurnisping a mooring placefor ships.and tim, ber like'tqat,in'CJ,uestioo',; ,.It seems: proofthat-thechafge as to

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theshij:)"is' 6£ theve8!3el i ,lmd th,e charge for is so much per stickjandit seems that"thischatgeis whether vessel is at the wharf one hour, day, one week,onnore;; In this instance the vessel was ID'60red to the wharf less than one My' opinioni8' that, under the' allegations of the libel and on the proof, the libelant is entitled to adedree.· The exceptions to:the libel are overruled,a;,d a leeree will be enteredfor $60.41, and costs.

oM

TIll!: ]OBNG.;ST.V.NS.1 THE R. S. CARTER. G. STEVENS and THE R. S.

LoUD et, al. CARTER.

t1.

TBm·JoIiN

(OircuU Oourt. JiJ. D. New Yor7c. Octo1ler 81,1889.)
Hurrnm LmNB-I'BIORlTY-RBPAIRB-SUBSEQUENT TORT. . The maritime lien, createdbl colliSion takes of liens for repairs and lupplies, although the latter liens arose prior to the collisJOI4

In Admiralty.

Appeal from district court. See 38 Fed. Rep. 515'. GeOrge A.Black, for libelants. ' Alexander Ash and Robert D. Benedict, for interv,enors.

BLATCHFORD,Justice. This is an appeaLbYce.rtain intervenors in this suit from a decree made by the,district court on the 26th of April, 1889. The libel was filedbtlJoud and others, as owners of the schooner C. R. Flint, and carriers of her cargo, and the master of that schooner; against the two tug-boats, to recover for damages'caused to thes'chooner and her cargo" and those suffered by her master,on the 8th 1886, by a collision between the bark Doris Eckhoff, which was at :tbe time in tow of.the Carter, and:the schoonet: Flint, which ,was at the time in tow of the Stevens. The Carter was seized unrler process,and fl, decree was obtained against her by default; for $15,.155.15, as damages sustained ,by the :Fliut t\.nd bercargo,and by her master, for the 1688 of personal effects, that amQunt including interest to December 26, 1888. The Carter was Bold under proce.ss issued in another suit against her,and the proceeds oUhe sale were Qroughti1lJto the registry of the district court. The firms of Jones & Whitwill, Gladwish, Moquin & Co., and Theodore Smith & Bro. filed libels.iuthe'district court against the Carter to recover, two of them for repairs madeupQn her\'and the other one for coal furnished to her··..The claim ofJ.ones & WhitwiU was established at the sum of $962.70, on the 16th of January, 1889, for repairs done to the Carter at Jersey City, Aug\lsU, 1885, and January 17, shebeil1g th.en owned in the, state of New York. The claim of Gladwish, Moquin & was eetablishedat the sum of.$249.40, on the 16th of January, 1889, for coal furnisbedto the Carter at Brooklyn, between Novemberl) 1885,
'.J " , ) ,

I

1 Reported

by Edward G. Benedict, Esq., of the New Yllrlt bar.

832

I'EJ)PAL REPORTER,

vol. 40.

and March 7, 1886, under sucb circumstances as to give a lien upon her" under the laws of the state o(New York. The claim of Theodore Smith ,& Bro. was established at the sum of $187.72, on the 16th of January, 1889, for repairs madew the Carter in New Jersey, between August 1, 1885, and August 22, 1885, while she w,as owned in the state of New York. The proceeds of sale being insufficient to pay the claims for damages growing out of thecolllsion, and the claims for the repairs nnd the coal, the district court was called upon to determine the priorities between the respective parties. It held that the lien of the libelants in this suit for the damages sustained by the collision was entitled to priority over the claims of the three intervening parties for repairs and coal, although the la.tter liens arose prior to the collil:lion; and it decreed that the whole of the proceeds of sale in the registry be paid to the libelants on account of their damages by the collision, such damages exceeding the amount in the registry. That amount is also less than the amount of the claims for repairs coal. i"'Theopinionof JUdge BENEDICT;in this case, in the district court, was delivered in April; 1889, li.hd is reported as The R. S. Oarter, 38 Fed. Ip.5,. Sll:Ys:;", , , ' " · "The question is not between a wages claim and a collision claim, nor be-, tween and a ,claim arising ,out of a ql,asi tort, where the cause of action is a neglect of some dUty assumed in pursuance of a voluntary agreement betweenthe parties. The claim of Loud is for damages caused by coltisioll,-'a torti pure and simple, committtid tiy the R. S, Carter. The claims of the material-men ,are, for repairs done to the' R. S., Carter prior to the collision,which liens 'have not been impaired by laches. The question is question, decided by this court in the case of The PrideQf .the 3.Fed. Rep. 162." . In that CaBe, decided in June, 1880, Judg& BENEDICT held that a fOll dainagescauBedby a collision was entitled to preference over a bottomry loan.made upon the vessel for the same voyage, prior to the happening of such collision. Sf :Judge BENll:DICT, in The Pride of the Ocean, cited in support of his. decision the case of The Aline, 1 W. Rob. 111, decided by Dr. LUSHING:TON in December, 1839, where it 'was. held that, in a case ofdamage by (l()llisio'n, the lien far the damage was, in the event of a deficiency of proparamount to the claim ofa mortgagee or bondholder accruing prior 'to the collision. Dr. LUSHINGTON was of opinion that the mortrJLgee and !the bottomry bondholder could not take any ,right greater than the owner 'of the vessel could confer, natneIy,JiIi lien on her as security against the owner·and all who claimed under him. He said that, if the vessel was 'J1otfirst liable f91: the damage by· the collision, the person injured might be wholly without a remedy, and added: i .. Another reasoh that would incline the In lavor of the per'son slltl'ering· the damage arises from the consideration that he has no option. 110 cailtion to exercise; the creditor on mortgage or bottomry has. He may pOnsidllr all the, W&Sible risks,and advance bis money ornql;, as he may think most advisable for his own interest. He has an alternative; the suitor in a cause of damage h'¥l nonee"

THE 10HN G. BTEVlI:NB.

388

In 'Phs PricU of the Ocean, Judge BENEDICT remarked that it was not possible to say that the prior lender on bottomry had derived any benefit from a subsequent collision, and that" the value of the lender's security cannot be enhanced by a subsequent collision, nor cou1d such a collision in any way tend to preserve the lender's security for him, but the contrary;" and he stated that he rested his decision on the ground "that a lender of money upon bottomry is a voluntary creditor, who, for the advantage to be derived therefrom, and with knowledge of the risks attending the voyage, deliberately enters into a contract with the ship, and, moreover, is permitted to obtain compensation for the risk assumed by exacting a maritime premium, while the relation to the ship of him whose demand arises out of a collision is involuntary. It is created by circumstances over which the creditor in damage has no control, and he can r(lceiveno compensation for the risk." In his opinion in the case at bar Judge BENEDICT says that the question involved is not the same as that decided by him in the case of The Samuel J. Christian, 16 Fed. Rep. 796, in April; 1883; that in that elise the controversy waS between two claims arising ex contractu, (a breach of a contract to tow being the sole foundation of the libel,) on the view that the libelant waived any tort, and relied upon a breaphof the contract, the damage being claimed for the act of the tug in dragging the tow against a, pier; and he !'tates that: the decision was, not only that wages, but claim of a for prior necessary repairs to the vessel,were entitled to priority in payment bver a demand based upon a subsequent contract which had no relation to any necessity (:If the ship,lmd. in no way tended to increase her vlj,lue, and which had been voluntarily entered into by the creditor. , In his opinion in the case at bar Judge BENEDICT also refers to the fact that the precise question involved had been decided in one way by Judge NIXON, in the district court for the district of New Jersey, in the case of The M. Vandercook, 24 Fed. Rep. 472; and in the opposite way by Judge BROWN, in the district court for the southern district of. New York, in the case of The Amo8 D. (hrver, 35 Fed. Rep. 665. This difference of opinion between the judges of two of the district courts in this circuit, on the same question, makes it important for this ,court to establish a rule which shall be one of uniformity in the district courts in this circuit upon that question. ' . In the case, of The M. Vandercook, in June, 1885, a libel against a tug which was towing the libelant's boat under a contract of towage alleged negligence in the tug which caused damage to the tow by her striking a pier. Judge NIXON held that the damages arose ex delicto; that the libel was not for damages sustained by reason of a breach of the towage contract; Ilnd that it was the settled doctrine of the American, as well aa of the admiralty, that the claim ex delicto should be paid in preference to a claim for prior repairs and supplies. In the case of The Amo8 D. (hrver, in June, 1888, Judge BROWN held that a lien on a vessel for seamen's wages, and a lien for necessary repairs and supplies, outranked a subsequent; lien arising from a negligent col..

FED!!RAtJltEPORTEB, vol. 40.

liSidri.;jrudge. BROWN was of"opirii6h: that 8. prior '. lien could not be superseded through a subsequenttort of the vessel, to which the prior 'lienor was jn no way privy, and which afforded him no benefit; and that, the prior lienor not being a: party to the naviga.tion of the vessel, and in no 'Way responsible for the tort, his priority of right should be upheld. Judge BROWN states his views as follows: "The liens created or recognized by the law upon the contracts of ship with seamen,freighters, supply-men, 'or lenders on bottomry, are designed for the of the"par,ties concerned, and are deemed necessary for the conveniencelil of commerce, andin the exigencies of navigatioll' Such.claims, .moreover,are mqstly of beillg conveniently secured in any other way than bYia lien .the Ship, and are therefore, as a rule, equitably entitled .to a superiorprivil,ege. Damage liens, on the other hand, whether for injUries to cargo of 'W vessels, by collision. by stranding, or by other negligent navigation. belong to the perils of the seas. and are, for the most part, otherw,lse secured by the universal praCtice of marine insurance. If this security is neglected, lit is ,by the choice or of the owner. The;same need of curity upon the ahip. as su,:b. perils. does not exist; and hen.ce th/ilY have everywhere been ranked by the maritime law below contract hens for wages, bottomry, lind supplies., The controversy in t.he great majority of cases ia practically With the insurer; (as it is mainly in this, case,} who. having in the firSt instance paid the IOS8, itl 'effect, outof the fund created by the premiums advanced'byall ships..hlsured,seeks to recoverindemuity from the offending ship. The insurer dp6S. have the bene6t of the injured ,party's lien. But to Henors for wages, \JQttomry, and sup,plies to the would and effect. to treat those Henors 8S co-proprietors pro, tanto In .the offending slnp. and, responsible for its navigation ; or as reinsurers pro of the underwriters upon the vessel and cargo injrired,-a relation as fal' as possible removed flom the eqUitable relation of the parties. It' the lienors lOay insure, so may the owners of tbe iIijuredsbip amd cargo, as they usually do·. They stand equal in this respect, and, the superior,llquitable right of.}he prior contract lienors stands unaf· fected." Referring to the Cases thusdeoidedby Judge NIXON andJudge BROWN, Judge BENlilDIC'r,inhis opinion in the case at bat,'says: i ;''In this conflict of opinion. I inclille to follow the aUlllogyof the case of The Pride of the,()cean, above alluded' to. aud give the su,bsequent collision 'Qlaim prio.-ityoyer the prior (\laims. of thematerial-mell. As between such creditors. when one or the otllern;lU!!t 10,se his debt, itseerqsto me more eqUitable that the loss should fall upon the material-man, who voluntarily. and fOr a consider/1.tion, agreed with the ship-owner to give delay in paYment, in :order that:theship-o'wner, by the use of his vessel, might t'arn profits ",here'with to pay''tlie ,material"lIIan.: Thetnaterial-man. for a consideration in the ,price he chargedi voluntarily assumed the risk of a tQtal loss of his security by the of"the ship he l"epaul'ld.in a cpl1isioll. Why, in fairness, should ,J;I,ot the o.f a lien upon the sbi,p he repaired. arising from a collision, be. held included inhis risk? ,Why lDay not a whQgives time, be falrly held to becume'!L'pal'tytQthe employment of the vessel 10 the Which I I;he 'accident since he has a beneficial interest in that employment? I find noUHng inconsistent with such a view in the case ! <Jf'Th'6 F'i'auk : 9.' Rowler, 17 Rep. 653. No, douQtthe maritime law . gives a.lien in pr<!er that the ship may gain time, but the policy of the law is to the time.,of, credit all short,as possible; lind it seems to me that a rule which, in to extend tile duration of liens of material-men, and

, THE; J()HN G. STEVEKS.

335

to increase the amount of liens upon the ship, because, under the rule, they serve to lighteu, and sometimes, as in the present case, destroy, all liability for collision,is a rule of doubtful expediency, and may be rejected 88 contrary to public policy. Upon these grounds. following the analogy of my decision in the case of l'h6 Prid6 ofth6 Ocean, I have determined to direct that the claim of, Loud be paid oU,t of the proceeds in court, prior to the uemands of the material-men. " The case of The Prank G. Fowler, 21 Blatchf. 410, 17 Fed. Rep. 653, decided by me in JU1Yi 1883, in the circuit court for the southern district of New York, does not cover the question here involved. In that case there were two collisions, at intervals of time, caused by the negligence of the same tug in the course of the ex.ecution of contracts of towage. E,ach claimant for damageS arrested the tug at the same time, and, there being no laches, or waiver or abandonment, the court held that the elder lienor was entitled to priority in payment over the younger Henor. The view of the court was that each elaim was to be considered as one sounding in damages for a tort; that the second tort or collision could have no effect in 'reference toa party injured by the prior tort or 'collision, to benefit the vessel or add to her value or preserve her; that there was nothing in the mere fact of the second, tort to extinguish' the lienapsing out of the first torti and that, when both torts were Of the same character, each arising out· of negligence on the part of the tug in fulfilling a contract of towage, and each claimant arrested the vessel at the same tit;ne to respond, there was no prinoiple of the maritime law, 'and De) intetestofcommerce or navigation, which required elder lienor,' not-guilty of laches, and not having committed any waiver or' abandonment, should have his claim postponed to that of the younger .lienor. . The rule ill England is thus laid down in Abb; Shipp. (11th Ed.) 621: lien of damage, in the wrong of the master arid . crew of the vessel in fanIt, andfonnded on considerationa of public policy for the prevention of careless naVigation, takes precedence, within, tl)e which the law assigns to the indemnification of the injured party, even though anterior in.date, of liens excont1"Qctu. It absorbs. in the event of the 1'e8 proving insufficient to meet all demands, the liens of wages, towage, pilotage, and bottomry, leaving them to be enforced by proceedings against the persons of the owners. Were it otherwise. the owners to whom the damage is imputed would be indemnified at the expense of the injured party; the wrong-doer at the cost of him to whom the wrong has been done." As authority, the author cites The Benares, 7 Supp. Notes Cas. Adm. & Eco. 50, 54, decided by Dr. LUSHINGTON in May, 1850, and The Linda Flor, Swab. 309, decided by the same judge in December, 1857, and reported also in 6 Wkly. Rep. 197. In The Elin, L. R. 8 Prob. Div. 39, decided by Sir ROBERT PHlI.LIMORE, in August, 1882, he held that the maritime lien arising out of damage done by a foreign vessel, in a collision for which she is to blame, takes precedence of the maritime lien of the seamen on board such vessel at the time of collision for wages earned by them subsequently to the collision; and stated that it was admitted that the claim for damage took precedence over the claim of the