646 ders,
,"
Jl'll;DElJ,AL .REPORpm,
vol. 49. in which they ;
inJhe sul>stances, o\Ving to the "i;") ('ii.' ,
, be fed lw.itJJ.ollt not liable to the, cas.e)vith the device,whtch Is fOf1l1ed ,choke Of, of lIo aDd stationary'toothed concave. Tlus latter device is quite liable. to and to feed.-diftlcuJtiea which are .' '. avoided by my Invention.' This suggestion of the qfthe double toothed crusbing cyltoothed cylinder and stationary concave Winchell inders over adopted and applied to the Roberts mill, which etubodied the second and third of ,his machines pr improved mill. AnyskilJed mechanic, acquainted the state of the' art relating to crushing and p;rinding mills, ,and ,with and to be remedied in the Rob. erts mill, could and would readily, without the exercise of any inventive faculty or genius, have added the iritergeared initial cylindrical crushers,pfQVided' ,\Vlth teeth or protuberances to draw in the substances to be crushed aqd ground, as shown in the foregoing prior patents. Such carrying forward or application of or devices and their operation, disclosed in earlier patents, does not constitute invention. It is to be noticed thll.t 'the patentee does not seek to patent the means and method adopted for ,l:innging the old devices together. In view of the devices disclosed prior patents referred to, and in the Roberts mill, we that complainant's letters patent, (No. 359,588,) dated are of the March 17, 1887, are lacking in patentable novelty, and are therefore void. While thiS conclusion .renders it unnecessary to consider other questions or assignD;1ents of error, it may be proper to state that, if said patent could be sustained, it would, under well-settled rules, have to be limited and QOIlfined to the particular structure or machine described and covered by the first claim, and that, being thus limited, it is not infringed by the appellee's mill, as the court below correctly held. The decree of the court below,'dismissing the bill, is accordingly affirmed, with costs. .
TIm
IUTA.
UNITJl:D STATES tI. THE ITATA.
TwO THOUSAND
OF
RIFLEB,
etc. Ill-
Court. 8. D. California. March 8, 1892.)
. . ..lJJI'IJl1l .l1Q)FO.nITtTBES-NE11TRALITY LAWS-FURNISJlING ARMS '1'0 FO.1IIGW 111RGENTS-RIIV. ST. 15288.
The steam-ship ltat!l, a vessel belonging to a foreign insurgent party, bnt not being a ves881 of war, came into the territory of the United States, and there received on board a cargo of munitions of war purchased there by an agent of the insurpnts. The was. not for the equipmllnt of the ltata, but was to be transported
THE ITATA.
647
to her country, :for the use there of the said Insurgents. HeM, thllt the vessel WlII Dot liable, nor W&ll l1er cargo .liable. to. forfeiture leotlqn 11283,..Jtev. Bt. U. 8., for violation of theneutralitv lawilo U. S. T. 7'rUnibuU,. 48 Fed. Rep. 911. fol-
lowed.
'
i',
In Admiralty. Suits to forfeit the steam-ship !tata and her cargo for alleged violation of the neutrality laws. W. Cole, U. S. Atty.· and Alexander ChmpbeU andA. W. H'Uttan, Special Asst. U.S. Attys. Page EeUs, Stephen M. White, and Gwrge J. Deni8, for Tejeda, commanding steam-ship Itata. WiUiam W. Goodrich, for Compania Sud Americano de Yapores, owner of the steam-ship ltata. Before Ross, District Judge·· Ross, District Judge. These cases were tried' and submitted together upon ,the evidence introduced in the case of U. S. v. 7htmbull, 48 Fed. Rep. 99, so far as the same is applicable, andnpon certain additional depThe additional testiniony does not 81ter the facts shown in the Trumbull Case furthei' than that it shows that' the !tata, before leaving Chili for Califomia, discharged the four small cannotl,togetherwith, the ammunitiotltherefor, she had theretofore carried. and that the soldiers she took on board did not exceed 12 in number, and were taken OD board, Dot to be used as soldiers, but fur' passing coal and as,stokers. It further shows that when theltata came into the waters of the United States she had on board less than her usual complement of men, and but one small brass gun, used as a signal gun. eight or·ten old muskets, and one small iron gun, for which there was no ammunition. The additional depositions, which inclUde the' testimony of two of the officers of the United States cruiser Charleston, still more clearly show, wha1 was before made sufficiently apparent. that in no just sen'3e could the !tata be regarded as a ship of War at the time she cattle within the waters of the United States, or at any time while she remained within those waters. :My views' in respect to the case are sufficiently stated in the opinion dmivered in the 7htmbull Chse, and reported in 48 Fed. Rep. 99, to which I adhere. It is enough now to state the facts I find from the evidence in the present case, together with the legal conclusions, which are as follows: . In January of 1891 the steam-ship Itata was an ordinary merchant vessel. Early in that month she was captured in the harbor of Valparaiso, Chili, by the people then known as the "Congressional Party,· and whO were then engaged in an effort to overthrow the then established and recognized government of Chili, of which Balmaceda was the head. The Itata was by the Congressional party putin command of one orits officers, and was used in their undertaking as a' transport. to convey troops, provisions, and munitions of war, and also as an hospital ship, and one in which to confine prisoners. Four small cannon were also put upon her decks, and she carried a jack and pennant. Some time prior to the following April one Trumbull came to the United States as aD
FEDERAL
vol. 49.
agent oBhe Congressional party, and about the month of April went to the city of New Y1)rlti and there bought, from one of the mercantile firms of that city dealing in such matters, 5,000 rifles, and 2,000,000 cartridges therefor, with the intention and for the purpose of sending them to the Congressional party in Chili, for use in their effort to overthrow the Balmacedan government., The sale and purchase of the arms and a,mmunitionwere made in' the usual course of trade. Trumbull caused them to be shipped by rail to San Francisco, and engaged one BurMo accompany them, whichhedid. Arrangements had been made by Trumbull with his principals in Chili by which they were to,send a, vessel to the United States to get the arms and ammunition, and convey them to Chili for the use of the Congressional party there. The Itata was dispatched by that party for that purpose, and was accompanied as far as Cape San Lucas by the Esmeralda, a war ship then in the service of the Congressional party. Before leaving Chili, the Itata discharged the four small cannon, with the ammunition therefor, that she had tqetetofore carried, but she retained one small brass gun, which she had always carried and used as a signal gun, and also eight or ten old muskets, and one small iron cannon, for which there was no ammunition. ", At one of Chilian ports the Itata took on board some soldiers, with their arms, not exceeding 12, in number; but they were taken, not to be used as soldiers, but for passing coal and as stokers. At San Lucas the captain of the Esmeralda took CQmmand of the Itata, and the captain of the latter was left there in command of the Esmeralda. The Itata then proceeded to San Diego, really in command of the Esmeralda's oaptain, but ostensibly in command of another, who represented to the customs officers at that port that she was an ordinary merchantman, and was bound to some port on the northern coast. Before coming into the port of San Diego, or into the waters of the United States, the Itata hauled downhe,r jack and pennant; the brass and iron cannon were removed from her deck and stowed in her hold, as were also the arms of the soldiers she carried ; and their uniforms, 8S well as those of the officers, were removed, and all appeared in; civilians' dress. At that port ahe laid in stores of coal and provisions, all of which were bought in the open market; and some of whioh were marked" Esmeralda." Meanwhile Truntb\111 had cbarteredaschooner, called the Robert and Minnie, in San Francisco, to take the arms and ammunition from there to a point in this judicial district, then expected to be near the island of Catalina, where she could meet the Itata, and deliver them on board of her, to be con.,. "eyed to Chili for the purposes already stated. The schooner Robert and Minnie accordingly took on board the arms and ammunition at the port of San Francisco, and, in charge of Burt, proceeded to the neighborhood of Catalina island, where she expected to meet the Itata. In the mean time the suspioion of some of the officers of the United States that the neutrality laws were being violated Was aroused, and the marshal of this district was directed by the attorney general to detain the !tata, if such was found to be the case; and, acting Upon those Itnd certain instructions from the district attorney of this judicial district, he went
64.9
on board the ship at San Diego, and put a keeper in charge of her, and then went in search of the Robert and Minnie, which he did not find in the waters ofthe United States. Communication was, however had between the Itata and the schooner, and a point near San Clemente island was fixed upon as the place of meeting for the purpose of transferring the arms and ammuni'tion from the schooner to the ship. Accordingly, the !tata, on the 6th day of May, 1891. without obtaining clearance Pl\pers, and against the protest of the person left on board and in charge of her by the marshal, weighed anchor, and steamed out of the harbor of San Diego, with him on board, to meet the Robert and Minnieaud receive the arms and ammunition. The marshal's keeper was; however, put ashore at Poinf·Ballast, before leaving the harbor. While steaming out of it, one or both of the Itata's CallItOn were brought on deck, and some pf the soldiers on board of her appeared in uniform. On the 9th Of May the Itata and Robert and Minnie came together, about a mile and· a half southerly of San Clemente island, in this judicial district, and there the arms and ammunition in question were taken from the schooner, flnd put on board the ship in original packages, and the 1891, the latter .at I once left with them for Chili. On September 4, . . . CongressIOnal party was recognized by the government of the United Stiltesas the established and only government of Chili. Prior to that time thete had been no recognition of that party by this other than that, on March 4th, the secretary of the navy cabled miralMcCann "to proceed to Valparaiso,and observe strictneutrality,aild take no part in troubles between parties further than to protect Americah interests;" On March 26th the secretary of the navy cabled Admiral Brown, who had superseded Admiral McCann, "to abstain from proin nature of aesistance to either-that is, the Balmaceda Or Congressional-party; that the ships of the latter were not to be treated as piratical so long as they waged war only against the Balmaceda government." On April 25th, Secretary of State Blaine cabled the can minister: "You can act as mediator with Brazilian minister and French charge d' affaires." On May 5th, Minister Egan cabled this ernment: "Government of Chili and revolutionists have accepted tion of the United States, Brazil, and France, most cordially; those of England and Germany declined." On May 7th, Acting Secretary of State Wharton acknowledged the dispatch of Minister Egan, and "expressed hope that, through combined efforts of the governments in question, the strife which has been going on in Chili may be speedily and hll,ppily terminated." On May 14th, Acting Secretary of State Wharton cabled Minister Egan that "French minister reports tbreats to shoot the insurgent envoys by Balmaceda," and directed that they should have ordinary treatment under flag of trnce· .From the facts found, and for the reasons given in the opinion ered in the case of U. S. v. TrumbuU, BUprq, my conclusion is that libel in each case should be dismissedj and it is so ordered.
650 THE Lon , .' (1)lBtrlct. OOUrt., ..
KEEFER. KEEFER.
w: D. Pn.oTs..
. '
FebruM'Y S. 1892.)
L SBA1lBN-CONT1U.OT POBW,f.GBS-RIVBB
Where a steam·boatboui!.d frotnPittsburgbj Pa., to Louisville, Ky. pfiota ,without the written by Rev. 8t. U. S. 54520. she Is hable, uuder
IleCtion 4621, for the hil{h8sf. wages shown to have been voluntarily paid. at Pitt&burgh to any pilot for a similar voyage during the three months preceding· The of .the statute is to prevent disputes as to the agreement for wages, and ita positive provisions in favor of the seamen osnnot bedeoted by any equities in the case. , ' , ' . .
.. 8.ur....,STATUTOBY PaoVISION....,EQUITIBS.
,IaAdmiralty. LibeCby Werling and Reno against the /Iteam-boat Lnd. K:eefer for wages as, pilots. Decree for M· .,4·. Woodward, for lillehJ.nts. , O. David S. McCann, for claimant· . . : .... ,', Judge.', . ,'Th,e testimony establishes. the fact that when the aftermaking up her tOw at Economy, destination was :LoQisville. She was to leave her. tow at Cincinnati, go to Loqisville, andllring back a towoi empty ba.rgesto Pittsburgh. only change was that ,in pursuance of a telegram from Jutte& Co., the ownersotthe tow, she.took her tow, of loaded barges with: h.er to Louisville, of leaving it at Her destination aport in, thaq an adjoining state, the act of congress SectiQll. 4520 ,qfJ the Revised Statutes provides that So written or printed .agreeplent shall. be made by the master with every seaman on board, and . provides that in the absence of such a contract the, master paY,every,such seaman "the highest price or wages which shall have. been gi'ren at the port or place where such seaman was shipped, for a similar voyage, within three months next before the time ofsuQh shipping, if'such seaman shall perform sucb.voyage." No writtenor printed made w,ith either of the l.ibelants. Capt. Reno without contradiction, .that he was to be paid the highest wages that would be paid on each trip, which. is snbs,tantially what the act provides. NQ arrangement was made with Capt. Werling as to wages. It follows, therefore, that the provisions of the statutes referred to the libelants are entitled to receive the highest wages paid at the port of departure for simiJar voyages. The shows that $250 was paid to one pilot Jor: a similar voyage at. same time from Pittsburgh to .Louisville and return. In caslp $200 was paid to a pilot for a wPete .he left the,b911tand returned by rail to Pitts,burghi;his expenses baclfbeing his employera. The libelants, on the contrary, pe!f'o,rmEld; the additional service of piloting the boat back to Pittsburgh. These rates seem to have been paid without compulsion, and, while higher than the wages paid to other pilots at the time, were