674
94 FEDERAL REPORTER.
woven right-angled diagonaliines, but only longitudinal lines, with one or two right-angled lines crossing them at the end of the opening. This display is not that, nor much like that, of the patented improvement, or difference; and infringewent does not appear to be made out. Bill dismissed./; ,.' "
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MESINGER BICYCLE SADDLE CO. v. , ·.., ..,;J
et al.
(CircultCo.urt, S. D. New Y?fk. May 11, 1899.) 1. DESIGN PATENTS-INFRINGEMENT. '
Where the similarity of appearance between designs for bicycle saddles was due rather to the general similarity of such saddles than to the particular similarity between the two saddJ,es \n question, and the patent was not of a fundamental character, held there was no infringement.
2. SAME-BICYCLE SADDLES.
The Mesinger patent, No. 25,423, for a design for a bicycle saddle having a centrally disposed opening upon which are displayed lines ext 'nding "both at right angles and dia,gonally to each other, said lines being inter· woven, as shown," construed, and heU1; not infringed.
In Equity. Robert O. Mitchell, for plaintiff. John O. Dewey, fordefel1dapt. ' WHEELER, District Judge. This cause has been reheard on petitio:q, !3uggesting that ,the invention sought to be secured by the Mesin,ger design patent question; No. 25,423, dated April 21, 1896, fora 'bicycle saddle, preceded the Outting design patent, No. 24,988, dated December 17, 1895, held inadvertently to fie an anticipation. The Hunt patent, No. 489,308, dated Jan1lary 3,1893, for a velocipede saddle, unquestionably antedates the Mesinger invention. It shows "an outline of general pelecoidal shape having a centrally disposed opening, whose contour is" somewhat "parallel with said outline," if not substantially so. It might be thought to, be an anticipation but for the provision inthe specification of tbeMesjnger patent that "upon the field .inclosed by the outline of said ,central opening are displayed lines extending both at right angles and diagonally to (!ach other, said lines being interwoven, as .shown/' 'As the only claim is for "thed,esign of a bicycle saddle substantially as herein shown and described," this display upon this field is, material, and especially so in view, of the prior pelecoidal and central openings. The alleged infringement does not display lines atr;igp.t angles to each other, at the extreme ends across longitudinal lines, nor lines diagoll'ally to each other at all. If the question about this was as to mechanical equivalents to parts of a foundation patent, these longitudinal lines might perhaps be considered t() .be such; but, as this ilil a question of appearance of appearance of this field made essential by the terms of the patent, it does not seem to be such. The similarity of appearance between this and the design of the patent grows out of the general of such saddles, rather than out of the particular similarity of the defendant's saddles to the dif-
FARR &; BAILEY
·.
NAV. CO.
.675.
fereMe the Qf tlIe saddles of. the priQf structures. ,. T.QlVerv. Pencil Co. (April, 4, 94 Playi{lg-Card Co. v. (April 24, 1899) Id. 822. ,B,ill
q61;,
.of,
FARR & BAiLEY MFG. CO. v. INTERNATIONAL NAV. CO. (District Court, .E .. D. Pennsylvanit;. 1.
April 28, 1899.)
SHIPPING-INJURY TO CARGO-SEAWORTHINESS-EFFECT OF HARTER
ACT. , Section 3 of tbe Harter act (2 Supp. Rev. St. p. 81) does not relieve tbe owner from the duty of furnishing a seaworthy vessel at the beginning of the voyage, nor affect Ws liability for damage to the cargo arising from unseaworthiness, but only exempts him from liability for damage arising from the risks therein ,designated when due diligence has been used to make the vessel seaworthy, etc. There is, no expressed intention in the statute to replace the carrier's obligation under the general maritime law to furnish n' seaworthy vessel by the less extensive obligation to exercise due diligence to that end, and it cannot be extended by construction beyond its terms.,
2.
SAME-)<'AULT IN MANAGEMENT OF VESSEL.
After a vessel had been out of port only four or five days, and had encountered no severe weather Or known accidents, both covers of one of her ports were found to be open, and water had entered and damaged cargo in the compartment into which the port opened. Neither the covers nor the surroundings of the port were injuTed, and the hatches had been battened down since the beginning of the voyage. Held, that neither evidence that the vessel was inspected the day before sailing, and the port believed to be' closed, nor even the positive testimony of witnesses that the covers were closed and screwed fast when the vessel sailed, was Elufficient to establis;h,such fact, but that, 'under the rule laid down in The Sylvi;a, 19 Sup. Ct. 7, 171 U. S. 462, the condition of the port did not render ,the, vessel unseaworthy, and tIW failure to close it before the injury was received by the cargo was a fault or error in the management of the vessel during the voyage, for which the owners are relieved from liability under section 3 of the Harter act.
This was'a libel in admiralty to recover for damage to cargo alleged to have arisen from unseaworthiness of the vessel. John F. Lewis and Horace L. Cheyney, for libelant Biddle & Ward and J. Rodman Paul, for respondent. McPHERSON, District Judge. This action is brought to recover damages to cargo under the following state of facts: The respondent is the owner of the steamship Indiana, a vessel plying between the ports of Liverpool and Philadelphia. In May, 1895, 20 bales of hurlaps, in good condition, were received by the vessel in Liverpool,: consigned to the lib.elant in Philadelphia. and a bill of lading was given therefor. The bales were stowed, with some other goods, in compartment Ko. 3 of the .lower steerage deck; but the compartment was not full, only one tier of cargo, two or three feet high, covering the floor, so that access to the .ports was easy and ,unobstructed. Four or five days after the vessel left Liverpool, water was discovered in the compartment; and when the hatches were opened, a.day or two later, it was found that the after port on the starboard side was admitting water freely ,as the vessel rolled. Both covers of the port