988'J'BDlIlRAL /," 'F"<F:!. II y. W
REPORTER,
vol. 61. _ ,.;.
: ;." QYOLE
qQ.'
(OlrcllitOourtat, Appeals;lI-lrst Circuit. ," .. No.n. , :'1; ! , ' , ' , 'j,'
Aprll17,lB94.) . , .'
from the. Cjrcuit Court of, the United States for the District of Ml;l;ssaehusetts.. " ',' .",. ", ' Tliii1,;w;a'S"a suit bY41bert H. Oyerman against the Warwick Cycle ManufMturipg Cpmpany to rest,rain infringement of letters 331,001, ,gmnted tp, the ,complainant for a saddle for The bmwas disIllilSsed with costs (54 Fed.. 496), and luid :Edward S. White, for appellant. appellee. , ' bOLT and. PUTNAM, Circuit Judges, and NELSON, Dis-, trict Judge. . , PER CURIAM. The, characteristic feature of the O\Terman patented saddle is its adaptability for removal and replacement at pleasure. This: is the essence of the invention, and constitutes the improvement over prior saddles. The defendant's saddle embodies a form of construction in, which this feature is absent. This is the ground'uPon which the court below held that the defendant's saddle did not infringe the Overman patent. We think the court below was right, and we canMd nothing to the reason so clearly stated in its opinion. 'Decree affirmed.
,
': :
THE DAGO. UNIT.mo STATES v. THE DAGO. Court otAPpeals, Fourth Circuit. No. 67. BILL 011' ;H:lCALTH-:-PORTOll'l D1JU>ARTURE.
May 22, 1894.)
A sllip boulld, tor the UnIted States must (27 Stat. 449) procure a bill ot health "trom the' consul or other consular officer of the United States at the port ofdepatture:"· Held, that "the port 'of departure" is not thelaat port at which the shipstopS'whUe the United States, but the IlQz:t from whlllh ,sh!! cleareq..
,,'
Appeal from'the District Court of :fhl:l'United States for the District of Maryland. This was a libel by the United States against the British steamship Dago to enforce a forfeiture. The district court dismissed the libel, and libellant appeals. John T. Ensor, for the United. States. J. Wilson Leakin, for appellee.
THE DAGO.
987
Before GOFF and SIMONTON, Circuit Judges, and JACKSON, District· Judge. GOFF, Circuit Judge. This is an appeal from a decree rendered by the district court of the United States for the district of Maryland dismissing a libel filed on behalf of the United StlicPS against the steamship Dago. It was charged in the libel that tht:: steamship had not complied with the provisi 0ns of the act of congress approved February 15, 1893, entitled "An act granting additional quarantine powers and imposing additional duties on the marine hospital service." 27 Stat. 449. It was alleged that the Dago cleared from a certain foreign port, the port of Bristol, England, for the port of Baltimore, inthe United States, on the 10th of July, 1893, without having obtained a bill of health, as was required by section 2 of said act of congress; and also that, having cleared and sailed from said port of Bristol at the time mentioned, she did, on the 2d day of August, 1893, unlawfully enter the port of Baltimore, in the United States, without having obtained a bill of health, as was required by the said act of congress. The libel, which was filed August 5, 1893, sets forth that the Dago was seized by· the collector of customs at the port of Baltimore, as forfeited to the United States, to be released upon the payment of not more than $5,000, the exact amount to be determined by the court. The answer of the steamship, filed September 22, 1893, claimed that she came to the port of Baltimore provided with a bill of health in all respects in accord with the requirements of the law, obtained at Newport, in Wales, her last port of departure, from Great Britain, and she insisted that no other bill of health was required of her by the law. The said act of congress, or the parts thereof necessary to consider in connection with this case, read as follows: "That it shall be unlawful for any merchant ship or other vessel from any foreign port or place to enter any port of the United States except in accordance with the provisions of this act, and with such rules and regulations of state and municipal health authorities as may be made in pursuance of, or consistent with this act; and any such vessel which shall enter, or attempt to enter, a port of the United States in violation thereof, shall forfeit to the United States a sum, to be awarded in the discretion of the court, not exceeding five thousand dollars, which shall be a lien upon said vessel, to be recovered by proceedings in the proper district court of the United States. III all such proceedings the United States district attorney for such district shall appear on behalf of the United States, and all such proceedings shall be conducted in accordance with the rules and laws governing cases of seizure of vessels for violation of the revenue laws of the United States. "Sec. 2. That any vessel at any foreign port, clearing for any port or place in the United States, shall be required to obtain from the consul, Vice-consul, or other consular officer of the United States at the port of departure, or from the medical officer where such officer has been detailed by the president for that purpose, a bill of health, in duplicate, in the form prescribed by the secretary of the treasury, setting forth the sanitary history and condition of said vessel, and that it has in all respects complied with the ruIes and regulations in such cases prescribed for securing the best sanitary condition of the said vessel, its cargo, passengers, and crew; and said consular or medical officer is reqUired, before granting such duplicate bill of health, to be satisfied that the matters and things therein stated are true; and for his services in that behalf he shall be entitled to demand and receive such fees as shall by lawful
988
FEDERAL REPORTER,
voL 61.
regulll{lolJ allowed, to !liCcounted for as is required In bther· cases. The president, In his dlscretlob, Is authorized to detail any officer of the government to serve In the office of the consul, at any foreign port, for the purpose of furnishing Information and making the Inspection and giving the , Ap.y vessel clearing, and salling from any, .wltJ;lputsuch bill ,of and entering port of the United, states, shall forteiho the Unlted<States not more than be thousand do1181'8, the !amount to be' determined by' the court, which shall be a lien on the same; to ;be recovered by,proceedinga in the proper district court of the , " i d, ',' . ,"See. i '.l'hat th,',e sl1perv,IS,l,';ng", eneml of the marine h,osPital serv,Ice sludl,' >lmmediately lifter this act takes elIect, examine the quarantine regula'fldDl! otallsta:te and'munlclpal boards of health, and shall, under the directIon',!)f the secretary of the treasUl'y,co-operate with and aid state and boards health ,in ,the: and ,entOllcement of the rUle1f of such boards and III the ex.ecution and enforcement of thetllles 'AM regulations made' by the secretary of the treasurY to prevent the 'IntIlddtlctton' of contagious 'or Infectious diseases into the United States from, foreign countries, and Into one, state orterrltory' or' the District of from another state or territory or the District. of Columbia. · · ,,. "The, secretary of the treas:ury shall make such rules and regulations as are necessary to be observed by vessels at the port of depart· ureand on the voyage, where ,such vessels sail from any foreign port or p1ll.ce to anypoi"t or place In tlie United "States, to secure the best sanitary condition vessel, her cargo; paE;Sengers and crew; which shall be published ,and t() and enforced by the consular officers of the United ,None of the penaltiEis herein imposed shall attach to any vessel or owtieror omcer thereof until a copy of this act, with the rules and regulations made in pursuance thereof, has been posted up In the office of the consul or otber consular offic!)r, of the United States for ten days In the port from which said" vessel salled; and the certificate of such consul or consular officer over his omcial signature shall be competent evidence of such posting in any cOurt'/it'the United'States."
0',
The only qu,estion. in 'the case is" .w.e think, whether or not the liJteamship pago was ,required to obtain a bill of:,health at Bristol, England, itt' the time ahe cleared and departed therefrom for Baltimore, in the' United States, by way of Newport, Wales. !twas contended by the respondent below that,' as she stopped on h.erway JltNewport, it was only necessary to' obtain a bill of health at. that place. It waa clearly shown by the testimony ..-..in fact, it was admitted-that the Dago cleared from Bristol, ,England, via New.port, for Baltimore, in the United states, aJ;ldtM,t she was provided with a bill of health from the port Qf :Newport, Wales, but that she did not obtain a bill of. health at the port of Bristol at the time of departing therefrom, alid also that she was not provided with one at the time she entered the port of BaltiJ;nore. The diatrict court, holding, that the Dago was not guUty of a breach of said act of congress, dismissed the libel. The United States petitioned for and was allowed an appeal. The act mentioned was passed to prevent, if possible, the introduction into the United States of contagious and infectious diseases from any foreign port. It makes it unlawful for, any vessel fr<lm any foreign port to enter any port of the United States except in the manner provided' for by said legislation and the rules and regulationsestablished under its provisions; it requires any vessel at any foreign :port, clearing for any port :tn the United States, to obtain a bill of health at the port from which it so clears and de-
989
parts. The regulations promulgated by the secretary of the treasury, dated February 24, 1893, in pursuance of said act of congress, are in part as follows: "Art. 1. Masters· of vessels about to depart from any foreign port for a port in the United States must procure from the United States consular or medical oflicer, at such port of departure, a bill of health."
The act of congress and the rules and regulations authorized by it were duly posted in the office of the consul at Bristol, England, in the manner required by law. The master of the Dago was aware that a bill of health was required, and procured it at Newport in Wales. To hold that this action on his part was a compliance with the terms ()f the law.and regulations in such cases made and provided, would permit a vessel to clear from an infected foreign port, at which it could not properly obtain such bill of health, "and by stopping on the way at another port, not infected, secure the bill of health that would enable it to enter the ports of the United States, thereby defeating the object had in view when said act of congress was enacted. It is intended by said legislation to furnish the health and quarantine authorities of this country with information relative to the sanitary condition of the ports of departure of vessels desiring to enter the ports of the United States. It is made the duty of the secretary of the treasury and of the supervising surgeon general of the marine hospital service to co-operate with and aid state and municipal boards of health in the execution and enforcement of the rules and regulationa made by the secretary of the treasury to prevent the introduction of contagious or infectious diseases into the United States from foreign countries; and the secretary of the treasury is required to make such rules and regulations as are necessary to be observed by vessels at the port of departure and on the voyage, where such vessels sail from any foreign port or place to any port or place in the United States, to secure the best sanitary condition of such vessel, her cargo, passengers, and crew, which shall be published and communicated to and enforced by the consular officers of the United States. By the regulations so authorized and promulgated, the United States consul at the port of departure is required to certify that the vessel has complied with the rules made under the act now in question, and that the vessel leaves his port bound for a particular port in the United States. If the vessel so bound for the United States stops at other foreign ports, the consul of the United States at which such calls are made must give a similar certificate or consular visa of the bill of health, as to the passengers, their effects, and the cargo taken on the vessel at such ports, and also as to the condition of the vessel, passengers, and crew since it left the port of departure. The protection intended by the legislation is of great and universal importance, and the provisions of the rules and regulations are not severe, nor are they burdensome, but are made with due regard to the interests of all concerned, and are necessary both to the comfort of the individual citizen and the safety of the general public. We do not think the Dago complied with the requirements of said act of congress when she procured the bill of health at Newport, Wales. She should have se-
FEDER.ALREPORTER,
vol. 61.
Brist&I,En*land, her departure; She violated the laW, 1!he rules and regulation provided for by it. It follows that the decree of the district court for the district of Maryland.·musf;,berev.ersed,.and the causert!manded to said court for such as may be prbver; anditis.so ordered.
THE EMP)DROR. THEHOWARDOARROLL. KNIOKERBOCKtllR STEAM TOWAGE 00. v. THE EMPEROR and THE HOWARD OARROLL. (District
Court.S. D.
New York.
June 18, 1894.)
A barge having· run. aground while in tow of two tugs, her owner both tugS to recover the damage. The defense brought this was that high lower t1J,an usual, and that t1J,e draught of the when she in fact drew barge had been represented as being but 20 more. The evidence did not satisfactorily show any misrepresentation as to the draught of the barge, and it did appear that the barge grounded forward, where. her' draught was not ever 19 feet 6 inches. The chart showed sufflc1ent channel way for the barge, even with an abatement of a foot or two In the USU!!.! height of the flood tide. Held, that the tugs did not take the best water, and that this was the true cause of the grounding, .and rendered the tugs liable. Where two independent tugs were employed to tow· a barge, and during the towing the barge was run aground, Mld, that both tugs were Hable, although it appeared that the pilot of one was taking the direction of the navigation In the shallow waters when the barge struck. LIABILITY.
2. Sum-Two INDEPENDIllNTTuGs-ONE DIRECTING NAVIIUTION -
In Admiralty. ' This was a libel by the Knickerbocker Steam Towage Company, owners of the barge Andrew Jackson, against the steam tugs Emperor and Howard Carroll, for grounding the barge while in tow of the tugs. Wing, Shoudy & Putnam, for libelant. Samuel Park, for the Emperor. Hyland & Zabriskie, for the Howard CarrolL District, Judge. In the attempt of the tugs Emperor and Carroll to land the barge Andrew Jackson at Fourteenth street, East river, at about high tide, the barge was run aground twice, nearly abreast of Seventeenth street, while hea:ding down; and, afterwards, when allowed to drop up river with the flood tide, she again struck the bottom off Twenty-Fifth street. The defense on the part of the tugs is, that high water on that day was much below the usu!ll mark, on account of previous n(l)rthwest winds, and that the draught of the barge had been represented as being only 20 feet. The actual draught is proved to have been 19 feet 6 inches forward and 20 feet 10· inches aft.