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FEDERAL REPQRTER,
vol. 49.
by the record. Some of such apparatus is strikingly similar to the plain· tiff's; in mode of operation and effect it is substantially identical. The plaintiff,'sclaims must therefore be construed strictly, and thus confined to the specifk devices and combinations described. So construed does the defendant infringe them? It must not be overlooked that the defendant has a patent, also, and consequently is entitled to a presnmption that his patent is novel, and therefore does not infringe the plaintiff's. The office, with the plaintiff's claim before it, and fresh from their consideration. :w,ust be regarded as deciding thllt they did not cover the defendant's apparatus. This decision is necessarily involved in granting the later patent. To overcome the presumption arising from it, the proofs should show with reasonable clearness. that the decision is wrong. On the other hand, it seems in the light of the proofs to be right. The defendant's apparatus does not, we think, embrace the spQCial devices and combinations specified in the claims. Indeed it seems easier to distinguish the defendant's apparatus from the complainant's than to distinguish the latter from some of those that preceded it. The bill must then'fore be dismissed and a decree may be prepared accordingly. .", ,,",
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INPIA.
THE INDIA AND OWNERS t1. DONALD et ". . (.
al.
(OfrcuU Court of .A1JpeaZs, Fifth Oirou't. "
Deoember 7,1891.) ,
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:'The term "weather working day," when used in a oharter-party, means a 'ofl\!,e,Wj.&e a working day, whilUthe weather will reasonably permit the oarrying qn of,the work contemplated. " ,
. ' """Three olear working day,'" notice, required by a charter-party to be given by . to, the shipper lay-days commence, does not begin to run until 'such notIce reaches the shipper. 8. 'SAME-ExOEPTION IN CHARTElt-PARTy-DitoUGHTCLAUSE. :,,4 of a vesllel at J;.imerick chartered to proceed to Ship island, there to lol'd with lumber, provided that the shipper should be allowed a certain number , of'days"to deliver the cargo,'" and that in the computation of lay-days "shall be excluded any time lost by of quarantine, drought, * · · or any extraordinary occurrence beyond the control of .shippers." The. custom of the was to collect aud prepare cargoes at Moss POInt, between WhICh place and ShIP island no drought can affect communlQat!ou; ·E.eZd, that the exception in 'oaseof drought did not apply to previous droughts in the streams down which the lumber is floated, making a scarcity in the market and preventing the securing of a cargo ,. as. re\l:lJirllq.. Paterson v. Da,Mn,31 Fed. l!,ep.682, distinguished.. ,.: '. . .
2.' SAMB:":':'COMPuTATION 011' LAy-DAYS·
4t.meal from the Distriyt Cqurt of the United States for tQe Southern
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Mississippi. '., . . " .· Bros. & ;Co.against the Norwegillnba.rklndi,a for <4tn:Hi,ge$ for failure of her master to give a. ,clear bill of lading., Judgment'1()r libelants, and dismissing cross-bill' for demurrage.. The owners appeal. Reversed.
THE INDIA.
!71'1 '
, J. D. Rouse and Wm. Grant, for appellants. R. T. ErvVn.· for appellees. Before PARDEE, Circuit Judge, and LoCKE and BRUCE. District Judp:es. LOCKE. District Judge. This vessel, the owners of which are Eppellants herein, being at Limerick, was chartered to appellees, Donald Bros. &Co., of Mobile, to proceed with dispatch to Pensacola or Ship isla nd, at the option of charterers, there to load with sawn timber or boards, as the shipper might direct. The terms of the charter-party, as far as ne< to a determination of the questions in this case, are: "The shippers shall supply, if legal, and if requIred by the master, deckload, to consist (at shippers' option) ofsawn timberandordeals and orl lards at full freight. The cargo shall be delivered along-side vessel, at her oLtered lOading bert,h, at shippers' risk and expense; the master giving shippers a written notice of three clear working days before cargo is required, after. vessel her ordered loading berth. * * * ;Eighteen weather working days shall be allowed the slJippers in which to deliver the cargo along-side of vessel at port of loading, which is understood to mea'n actual' delivery of cargo along-side,' and not ·completion of loading,' and the cargo to be unloaded with all customary dispatch at port of discharge. Ten like days shall be allowed on demurrage at the rate of 4d. per ton register. perday. For all slIch like days as the vessel may be wrongfully detained after such demurrage «;lays, damages for detention shall be paid at thl;' rate of 4d. per ton registerper day. Any demurrage or damages for detention shall be settled at the place where incurred. In the computation of lay-days at port of loading shall be excluded any time lost by reason of quarantine, drought, flood, storms, 'ltrikes, lire, 'or any extraordinary occurrence beyond the control of the shippers. The master shall sign shippers' bills of lading as presented. without prejudice to this Charter-party, but any difference in freight shall be settled on signing bills of lading."
The ship, having arrived at Ship island under the charter-party, De<Jember 25, 1890, discharged ballast, and the master reported as ready to receive oargo, mailing the letter giving notice the 14th Janua.ry, 1891. This letter it appears 1rom the evidence was received at 9 o'clock the morning of the 16th January. The vessel remained taking in cargo as delivered along-side until March 6th, when she completed her loading. The charterers and shippers presented a clear bill of lading for the master to sign, but he, 'coIlsidering and claiming that his ship had been detained beyond the legal lay-days, and that he was justly entitled to demurrage, refused to sign such clear bill of lading; whereupo'u a libel was filed, alleging that owing to storms a.nd high winds and stormy bad weather the number'of weather working days of thE! shipper were never that storms and high winds and bad weather affected the points where the libelants had under the custom of the port collected and 'prepared the cargo; and that they were by these causes prevented from delivering the cargo within 18 consecutive day8subsequent to the notice;' but that these causes were wholly beyond their control, and they bad delivered the cargo within the fir$t18 weather 'Working days, and that the master had refused to sign a clear bill of lading, but had protested against said clear bill of lading, which hild destroyed its negotia-
FEDERAL REPORTER,
oility, and the salability of the cargo, greatly to their damage. To this the owners of the vessel, appellants, filed a cross-libel, alleging that the lay-days;tbei8 weather working ilays by the charter, expired on the 12th of February, and that their vessel had been wrongfully detained"and thl1t there wasdue them for 10 days'demurr,age and 8 days' detention the amount of $1,162. In answer to this cross-libel, apthat "in the computation of lay-days there shall ,be expellees clud,ed anytime lost by reason of quarantine, drought, floods, storms, strikes, fire, or any extraordinary occurrences beyond the control of shippers; anti that, owing to droughts, storms,and floods, they were unable to have their delivered at Moss Point, the port where or from which'the,cargo ,is, ordinarily-delivered to Ship island, and that, owing to which were wholly beyond their control, they were excused, from, sooner delivering said cargo." They also denied that. owing to: the condition of the weather from the 16th January to the 6th March, the 18 weather working days had expired at the time the delivery of the. was ,Upon these pleadings, the case being jutigmentwlls found lor libelants for c:ll1e cent and costs, and the claimants'; was dismissed, with costs, from which claim' ants have ,ltppealed. other questions arose in the court Besides the'question of mincit claims of the master of the vessel, for an ,ns.'quarahtine fees; for damage for brtmking a ]{nee of the amount vessel; "nd for,a difiEmmce iil exchangej but none of these have been assigned i.n they will receive no There alJpears to be muph uncertainty in thea])egations of the libelants both in the libel and the itllswertothe croSs-libel as to what condition offacts was to be relied uponj whether drollghts, storms. or floods; and whether, according to the allegations of the libel, it was to be uQderstootl that the cargo was collected at Moss Point. and they were prevented from delivering it, or, according w' the answer to the cross-,libel. they were unable to collect it there; taken in connection with the evhlence, there are plainly presented twv questions forexaminaticm: Whether there were more than 18 weather' working days the time when the lay-days comm,enced to tun (three clellr working days alter notke by the master) and the final deliiver;v or the and, if so, whether such time should be excluded frQrn.,tpe time subject to demurrage under the eighth article of charter-party. The term "workin" day" .has so entered into commercial language and feceived judicial construction, that its force and meaning is beyond a ordolilbi. It has ceased to be an ambiguous phraRPj but when, the.expression is further mo(1ified or limitt>d by the word we tind J.he newcotnbination not so general in its use or so well eStllblished, in its forcejbut .its c.onstru;<:tion, and' the 'manner aud connection of iti; use, can but one.mellning, namely, a dllY. otherwise: /l. working weathet;wQt11d, reasonably permit the carrying on of the' day, when work contempla,ted.,' In :th;s kind of work w8$' towing ol'Jtunbel' lighters and delivering it along-side: