592
FEDERAL REPORTER,
vol. 43.
WALLACE, J. Theoomplainant alleges/infringement by the defendant of chums land 4: of letters patent No. 228,939, to Lebbtlus H. Rogers June 15, 1880. It is apparent from the specificationthat the essence of the invention patented, as far as the two claims in contro\'ersy are concerned, conslsts.in a die of an appropriate configuration to do the work of ornamentation for perforating and scalloping paper,' orof ornamentation and dividing the paper,-either or both. The configuration of the die m:ust be such as will enable it to punch the paper into the desired pattern of perforations and interlocking scallops, and it may be such as will also enable it to sever the paper along the line of the interlocking scallops. The first claim is for' the method of making the perforated and scalloped paper by the use of the die. The second claim seems to be one for 'a die having only the ornamenting function, but'itmay be capable of an interpretation which will restrict it as one ,fora die having both the ornamenting and dividing functions. Both claims are met and their novelty ovetthrown by the knowledge and use by George Franke, prior to the date of the invention by the patentee, of a'die·essentially in configUration like the die of the patent. The 'silver strips' 'of embossed paper made by Franke with his die show the interlocking pattern and perforations which are substantially those made by tM use'of the patented die; and it is plain, as he testifies, that such die is operative when used upon several sheets of paper, except in the result of the embOSSIng, to accomplish just what is done by the patented die. There ishtHeason to doubt that this die was imported by him and used, ItS he stateS, in 1878. "'In view of this conclusion,it is unnecessary to consider the other defenses which have beellinterposed by the defendant. bill is dismissed, \Vithcosts.
TaJ;:A. 1.
HEATON.
(Oircuit Oourt, D. Massachusetts. 8e-!'tember 0,1890.) A petition to injuries sustained by a seaman, by reason of the alleged negligence of 'the master and owners of the vessel in not providing a suitable gaske,t, f,O,r" th"e fore,sail, c,ann,4)t,be sus,t,ain,ed on the gr,OUnd, of actual personal, negligel).oo it.ltlJpears, that there was plenty of spare rope on board, which ,of"the 'itwll.& the dut;yof the Ipaster to use in keeping the in repair, and there is to show, that the owners seht the vessel to sea 1U an unseaworthy condition, . or were njl,gligent, in the select.ion of a master or otherwise. ,,'
SHIPPING-INJURIES TO SEAMEN-LIABILITY OIl' OWNBR OIl' VESSEL.
\l;SAME__llJVIDENCE., ,.,
, , , The n:(a,te that, bet:oI'e theaccidentJ he the gaskets, "and repol'ted to tl'le master that they were in poor conaition, especially the one in question, and that the latter replied it lasted the last voyage, and he thought it would do this, and that he did not intend to spend much on it, but run it as cheap as he could, because on his return .. .. .. he would be otT, and the ship sold. " HeW, that testimop.y of the master did not reCOllect. being notified of the condition of the gasket, raised no doullt 0'1 the truth of 'the positive testimony of the mate, especially as the master pr4);{essed eq!1l101 torgetfulnell8 olatheI' circum· stances attending the accident.' .
A. 8. SAME-MEASURE OJ' DAMAGES.
!lEATON.
593
A seaman, permanently injured in the performance of his duty on shipboard, in consequence of the of the master in not keeping a rope in proper condition and repairl can mamtain a libel against the ship to recover damages for the injury, beyond hIS wages to the end of the voyage and the expenses of his cure, so far as the injury is susceptible of cure. When it appears that petitioner's left hip and arm were fractured, and that he was permanently disabled from pursuing any calling requirlnl( bodily exertion, Sl,500 damages are not excessive.
L
SAME-ExCESSIVR DAMAGES.
In Admiralty. Appeal from district court. T. J. MO'I"/'i$on, for petitioner. George M. Reed and M. J. McNeirne:y, for claimants. Before GRAY, Justice, and COLT, J. . GRAY, Justice. The schooner A. Heaton having been sold by order ·ofthe district court for $2,150 upon a libel for seamen's wages, and about $1,500 of the proceeds of the sale remaining in the registry of the court, after payment of such wages and costs, Julius Hanson filed a petition, in the nature of a libel in rem, to recover damages for injuries sustained, while servlng as a seaman on board the schooner on her last voyage, by reason of· the negligence of her master and owners in not providing a suitable gasket for the foresail. The district court held that the petitioner was entitled only to his expenses in the hospital, which had been paid by the owners, and to his wages to the end of the voyage, with interest from the return of the vessel, and entered a decree accordingly; and he appealed to this court. The PEJtitioner shipped as an able seaman, at Gloucester, in this district, and thence to the Mediterranean, for a voyage to the British and back to a of discharge in the United States, on the A. Heaton, a .three-masted schooner, carrying a square foresail, the method of .which waS by sliding it along the yard, and making it fast to the mast withbrails, and winding gaskets around it to avoid bagging between the brails·. On the third day out from Gloucester, the petitioner was ordered aloft to take part in furling the foresail, and in performing that duty was obliged to let himself down from the yard, holding the sail between his knees, and. the gasket in his hands; and, while he was so compressing the sail and winding the upper gasket around it, the gasket broke, and he fell to the deck, whereby his left hip and left arm were fractured, and he was permanently disabled from pursuing any calling requiring bodily exertion. The accident happened by reason of the defective condition of the gasket, which by long use had become rotten and weak, and the petitionerhlld no notice or knowledge of its condition until it gave way in his hands. .There being no evidence of any negligence on his part, we have no occasion to consider how far such negligence, if proved, might affect his right to recover. The gaskets are a part of the rigging, which frequent renewal at sea. There was plenty of spare rope on board, which itwas the duty of the masterto use in keeping the rigging in repair; and there is no evidence that the owners sent the vessel to sea .iU!lP,U,DSeaworthy 0r:were themselves negligent, either in the . 'v.43F.no.9-38
594
FEDERAL
'Vol. 43.
·of a master or, <;>thenvise. This,petitioncan\1ot,tllerefore, be maintained on the ground of actual personal negligenceG{ the owners. . '. m,inqs that the acc.identlVascaused by the master's gross, not to say reckless, neglect of the duty which he owed to under. command and care. The mate, distinctly and posthe accident, having been up. in the rigging and examined the gaskets, he reported to the mastel','that .the gaskets, and especially the upper. one, were, in poor condition, and in want of repair; and that the mastbrreplied "that'it .lasted 'the'last voyage and he thought it would do this, and that he did not intend to spend much on it, but run it as'cheap' as he 'could,because on, his return to the United States he would be off, and the ship sold." 'The words" attributed to the by the are in, accord with the. subsequent action of ownefs 'in allowing the'vessel to be sOld to pay tHe wages of the crew. Althotighthenfastel'; 'on his direct· eX'lmlination by the counsel for the owners;l testified that he did not recollect any such 'conversation, yet on ;cross.;e:x:amination hendthitted thatil-might be mate had. called ,his attention tothedefedth"e condi'tiol1 of the gasket; ;aill! it' hnd slipped hie mhid'" ;And the maeter equal:forgetfulnessof"other circumsta.l'l<:ietfatten'ding'the and especially ofthEifact; proved by the concumng testimonybfthe'mate,the petitioner,and'itlireeof the four othetseafuen /Jon 'board; that the p6titioner, when fell, held up the 'HCaptain, this is-your fault." Taking broken' gt\.Sket/ and ,allthls'ili'to 'oonsidergti:onf,' 'the 'master!s' want of :recollection,whethe'r real the previous notice to himofthe'defeetive condition raises; tit) (c{(ill bto!: the; 'tl'Uth of' the ;distinct andpositive .of thE!' testlmofl,Y rof'the1in'a\e'tlpon that lioititi .' , I i 1 " .' ,th 0'$' resolved into the -questibti' of'lawj' whether' a seaman, ,permanently injured' in the' 'performance of, hjg ,duty on ship-board, in .'consequence of of the tn'asrer in fiot keepitig: a 'rope in proper 'cdndition'and l'epair,can maintain alinel ;against 'the ship to recover1daihages fdrtbe injury, beyond,his'wages to the end of the age and' the expenses of his cnre,so'fij}r susceptible of 'cure. ,Thlsquestion,bdth as to the'Jurisdiction and' us to the merits; ap"pears to U's to be substantially deternrltted' by 'the 'decisions of the supreme 'court. In:Englana; irtdeed i itappelli's a libel in rem can' be niltintailied in' admitaltyifol'a 'personal' injary.But on principle, as observed bY'S recent Englisli writer, it ,WOUld seem difficult to deny the justice of the "lew'intt versonal injuries inflicted by a ship might confer a maritime lien,or toformulattlaslltis'faet'ory reason why datl1ages occasioned to a man's property' shol1ldgive; riset<> rights of a higher nature; or-be the 'aubject of a m'Oi'eeffective remedy, than an inJury under the isamecii'cUrilelahceSto his . person. 4 Law by a series of . Qual'. Rev. 388. : In this country,'it has' jUdgrrients'of the supreme court 01 the United States, that a libel in adship' for any pers()na:l injury, for miralty maY' bemaihtained; against whit1h the oWners' ate 'liable under thegen:eraBaw and independently of any loCal statute;, aeco-rdingly passengers' hava 'often maintained libelS,' as well .. . I
,
TIlE· A. HEATON.
595,
against the ship carrying them as against other ships, for personal injuries caused by negligence for which the owners of the ship libelled were responsible. TheNw World, 16 How.469; The Waahington, 9 Wall. 513; The Juniata, 93 U.S.337; The Oity ofPana'TOO, 101 U. S. 453, 462. The sixteenth rule in admiralty, whiCh directs that" in all suits for an assault or beating upon the higb seas, orels\1where within the admiralty and maritime jurisdiction, the suit shall be in per80nam only," do.es not affect libels for negligence. It was argued in behalf of the owners that they were not responsible to the seaman 10r the negligence of the master, because the two were fellow-servants; and a Scotch case was cited, where in an action at law it was so held. Leddy v. GibBOn, 11 Ct. Sess. Cas. (3d Ser.) 304. Bllt, we are unable to reconcile that decision with the recent judgment of the majority of the supreme court in Railway Co. v. R088, 112 U. S. 377, 5 Sup. Ct. Rep. 184, which conclusively binds this court. The point there decided, as stated by Mr. Justice FU:LD in delivering judgment, was that the conductor of a railway train, who commands its lIlqveUlent;!, directs when it shall start, at what it shall stop, and at what speed it shall run, and has the general management of it, and con4'olover the persons employed upon it, is in no proper sense a 1ellowwith the firemen, the brakemen, the porters, and the engineer upon but representsthe company, and therefortl, for injuries resulting from his negligent acts, the company is responsible. 112 U. S. ,Sup. Ct. Rep. 190, 192. The reasoning, upon which itwas there.. heldt,bat the might maintain an action,. the owners of a,raUroad train for the negligence of the conductor, al'plies with greater(ol'ce.to ,11 suit by a seaman against the owntlrs of a vessel for negligence of the master, while ,she is at sea, beyond the reach of the the f1eaman ill subject to, t,he absolute control of the master, and cannot, if be would, leave the vessel or throw up his engagement. No rewon can be assigned why the owners of a vessel should be held less liable to a seaman for the negligtlnce of the master in a court of admiralty than ina c(nirt:ofcornmon law. Courts of admiralty have always considered !leamen to their protection. Seamen may recover hy libel.in per80nam against either the owners or the master, or by libel in rem against the ship. Sheppard v. Taylor, 5 Pet. 675, 711; Brondev.,Hat·en, Gilp,. 592; Temple v.Turner, 123 Mass. 125, 128; Rule 13 in Admiralty. ,Their lien on the p orits proctleds takes precedence of all other claims, 6J1:Cept, claims for salvage, or for damages by collision owing to the fault of their ship. Hen. Adm. § 69, and cited;,Norwich (hov; Wright, 13 Wall. 104, 122. A seaman, taken sick or injured or disabled in the service the ship, has the right to receive his'w,ages to the end of,the voyage, and to be cured at the ship's expense. That right, indeed, grounded solely t!pon the benefit which theflhip ,derives from his service, and having no regard to the question whether his injury has been caused 1;>y the fault of others or by mere ncddent, does,not extend to compeO'lation or allowance for. the effecisQf thein.jury;, but it is in the nature of an additional privilege, and not of a for ora other rights and rewe-
FEDERAL REPORTER, vol. 43. dies; Har(len v. Gordon, 2 Mason, 541; The George, 1 Sum. 151; Reed v. Oanfield, Id. 195,199, 202. It does not, therefore, displace or affect the right of the seaman to recover against the master or owners for injuries by their unlawful or negligent acts. In Sherwood v. HaU, 3 Sum. 127, Mr. Justice STORY, sitting in admiralty, held that the act of the master in shipping a minor as a seaman, knowing it to be against the will of his father, was a tort for which the owners of the ship were responsible in damages to the father, although positive and direct knowledge of the facts was not brought home t.o them; and said: "Constructive notice is brought bome to them by the knowledge of·.their agent, the master. .. .. .. Upon tbe well-established principles of the mar.itimelaw, in cases of this sort, the owners are responsible for tbe torts of the rri'aster in acts relative to the service of the ship, and w.itbin the scope of hili employment in the ship. ..' II< .. In cases. of ,collision, and from negligence and illegal captures, and other torts from the' ,faUlt of master, the owners are, by the maritime law, made responsiblefot'bI!l acts and omissions of duty." Id. 131.132. ' . In "Leathers v. Blessing, 105 n.; S.626,628, a merchant, who had gone on. board a vessel, expecting to find consigned to him, and had been. there injured by the fall of a 'bale of cotton which,a:sthe mastei" knew ,had been insecure] y stowed, .maintained ,a libelagaipst the dwn,ersas well as the master; and it wasasBumed that the would have been clear if he. had been an officer, seaman,' pl,tssenger, or freighter. In the high court Madmiraltyof England, Dr. LUSHINGTON; ina collision cause, while awarding damages to the owners of ;the vessel not in fault, denied them costs, because her master had not ordered out a boat to save'the HIe of a seaman who had faUen overboard 'from the guilty vessel, and was drowned; and'said': .. · : "r must boldhere,and I ever sballhQld. that tbeowners ofa ves$el are sponsible for the whole conduct of the 1l18ster Whilst on· board liis vessel, and in command of that vessel. I do not mean to say that they can be responsi. ble, criminally speaking, for any act hemaybave ·committed, of. a criminal nature, for·.ofcOQTSe;. in that case the rel!poqsilJility and the punisbmfmt attach Oldy to, the wrong-doer; but, civilly speaking, tile owners,are responsible for any deviation from that line of conduct wbich it behooves a master to perlQl'm. not simply in the navigation of the vessel, and inthe care of his own seamen. but in the care of those who maY'be'thrown on board' his ship by an accident of this description. and for the perfonllance of any office of humanity." The St. Lawrence. 7 Notes Cas. Adm. & Ecc! 556. 559. 14 JUl'. 534. For these reasons, and upon these authorities, we are of opinion that the apppeal must be sUE-tained. This conclusion is in accordance with the general current of opinion in other circuits. The Ben Flint, 1 Biss. 562,568; The SeaGull, Chase,' 145; Brown tV.· The Bradish.Tohnson, 1 Woods, 301; The Tulchen, 2·Fed. Rep; 600; TM OlatsopOhiej,'7 Sawy. 274,8 Fed. Rep. 163; The Noddlebum,12 Sawy. 129, 28 Fed. Rep. 855; Olsen v. Flavel, 13 Saw)'. 232, 34 Fed; Rep; 477; The Edith Godden, 23 Fed. Rep. 43; The :G1J,ilkrrno, 26 Fedl Rep. 921. The decisions in The Sea Gull and The Olat8op Chiejwere disapproved and overruled by the supreme courtin'The.Hari'i8burg, 119 U.S. 199, 7 Sup. Ct. Rep, i40,only"because they a.warded damages
\
HpOD tI. THE LEHIGH.
597
for the death of the person injured. In those cases, in England or America, cited for the claimants, which most resemble the case at bar, the negligence which caused the injury waS not shown to be that of the master. But it was either, as in The Bmtina, 12 Prob. Div. 58, and L. R. 13 App. Cas. 1, and in The Queen, 40 Fed. Rep. 694, left in doubt by whose individual fault the accident happened; or else the negligence proved was, as in Halver80n v. NiBen, 3 Sawy. 562, and in The Egyptian llJonarch,36 Fed. Rep. 773, of a mate, or, as in The City of Alexandria, '17 Fed. Rep. 390, of a steward, neither of whom was dominus navi8, but each was employed under the master ina common service with the libelant,. and therefore rightly held to be a fellow·servant. SteamShip.Co. v.Merchant, 133 U. S. 375, 10 Sup. Ct. Rep. 397; Ben80n v. Goodwin,147 Mass. 237,17 N. E. Rep. 517; Searle v.' Lindaay, 11 C. B. {N.S.)429. Considering the extent of the petitioner's injuries, $1,500 is not too large a sum to be awarded to him as damages. Decree of the district court reversed,and the sum remaining in the registry ordered to be paid to the petitioner in satisfaction of his: damages and costs.
HOOD fl. THE LEHIGH. (ctrClif.t CdWr-', N. D.llUn0f.8. October 6,.1890.)
1.
COI,LISIONS IN FOGs-SPEED
op' VESSELS. Respondent, a propeller:laden with grain, while running iIi a fog at night at the rate of about ninemUes an hour, nearly her full speed, collided with and sunl!: libelant, a coal-laden schooner; 'whose speed was four or five miles an hour. Tile regulation lights on respondent were burning brightly, the lookouts properly stationed, the captain and mate on watch, alld her fog-whistle was being sounded once a minute. ·Held, that respondent was at fault in maintaining a dangerous and unreasonablerateot speed in the f o g . , Libelant, the schooner, failed to show a torch on. first hearing respondent's fogwhistle,and made no attempt to do.BO, as required by Rev. St. U. B. 5 4284, in sucb, cases, and it was ilJ evidence that a torch could havll been seen fut-ther thantbe scbooner's lights, and that the display of a tot-ch would pt-obably have' kept tho vessels apart. Held, that libelant was guilty ofcontributol'1 negligence in not displaying a torch and that the damages should be divided. "
2.
BA.ME-TOROHES-CONTRIBUTOBY NEGLIGENCE.
·
In Admiralty. Appeal from district court. W. H. Condon and T. H. Hood, for libelants. Schuyler &; Kremer, for respondent. GRESHAM, J. The propeller Lehigh ran into and sunk the schooner Van Valkenburgh in Lake Huron, off Thunder Bay island, between 12 and 1 o'clock on the night of May 31, 1887. The schooner wason a. voyage from Ashtabula to Manitowoc, laden with coal. Her course was N>:N.W., ::tnd four or five miles an hour; The pro,l)el1er was on a voyage froni Chicago to Buffalo, and at the time of the col-