SCOTT V. FOUR H1JNDItED' AND FORTY-FIVE TONS OF COAL.
285
now employed by thedefendants, and the use of which, the plaintiff insists, is a violation of the injunction, is a device described in and covered by letters patent subsequently granted to. Albert Ball, being No. 366,913, dated July 19, 1887, upon ap,plication filed November 13, 1886. In mode of operation this latter device differs from the Frisbee core-lifter, and also from the Case device, in two particulars: First. During the work of boring, the Ball device does not embrace or come in contacLwith the core, but by an outward spring pressure clings to the tube or oore-barrel, and partakes of its rotary motion. Secondly. The Ball core-lifter is not forced towards the small end of the recess by the withdrawal of the drill-rod. but is driven into the conical chamber, and thus made to grasp the core by hydraulic devices brought into action by the operator in charge of the boring machine. Now, I am not prepared to declare that these diflerences are colorable or immaterial. They are not obviously so. The decision of the question of infringement, here for the first time raised, demands an inquiry into the state of the art prior to Frisbee's invention, and involves, too, the construction of the claim of his patent as limited by the phraseology "operating substantially as described." In cases of this kind a motion for an attachment is not granted unless the violation of the injunction is plain and free from doubt, (Refrigerating Co. v. Eastman; 11 Fed. Rep. 902; Smith v. Halkyard, 19 Fed. Rep. 602,) and upon the whole I am of opinion that the question whether Ball's patented device infringes the Frisbee patent ought not to be determined upon such a motion as this, but only by an original suit. Pump Co. v. Manufacturing Co., 31 Fed. Rep. 292. And now, 13, 1889, the motion for an attachment for contempt is nied, without prejudice to any suit the plaintiff may bring to test the question of Infringement involved in this motion.
SCOTT
v.. FOUR
HUNDRED AND FORTy-FIVE TONS OF COAL.
(District Oourt, D. Oonnecticut. June 29, 1889.) 1. SALVAGE-CO:\1PENSATION.
A·schooner laden with coal struck and sank in very dangerous water at the entrance of Long Island sound, only the main rail being out of water. The locality was an e:8:ceptionally bad one in which to save eitber vessel or cargo. Libelant, the owner of a wrecking equipment, offered to save the top-hamper for 50 per cent. of its value, if successful, and subsequently offered to save it for 40 per cent., if he could have 75 per cent. of the cargo also as salvage service. The agent of the vessel's owners accepted this preposition. The libelant communicated this offer to tbe consignees and insurers, without receiving any reply. Libelant took a lighter, a tug, and 12 men, and in 2 days had the top-hamper ashore safely. He secured the services of a large steam wrecking vessel, baving a foreman and two men, and with his own lighter and tug proceeded to pump the coal out of the hull. After getting a small part out, by the aid of the current the vessel was raised and, with difficulty, gotten 8shorll on the same day. Shortly afterwards the coal wasTemoved. The top-hamper alone was worth $800 to $1,000, and the schooner and bamper
'2,86 , wereworth$l,200tQ $1,500, and coal was worth $1,575. The owners of the vessel paid libelant'$'600 more thlih percent. of his estimate of the value, alid:the insuret6 offered him their interest intbe cargo fOI1 $600. The steam wrecking vessel ,earned ,per day, ll,Ild libelant paid her owners , $600 for her servjces, which wereindispensable to the saving of the vessel 'and cargo. Held 'that,"considerfug' the pecunlary'risk and expense incurred by libelant, he :should receive; $1:,000 for his salvage service upon the cargo. '2; SAME-apPoRTIONMEI!i'l\ "
While. as a rule" the same J:atio of Qf sllJvage service should be applIed to all the 'property, the expense of slt'Vlngthe hull !!-nd being so much gtelliler than that connected with the'top'hamper, a hlgherrate of salvage shouldalsQ' bEl allowed. : , . ' ; ; 'i :" " " " ',... " . ,." " '
,
i.
SAME.
W!:IetJ:ier the vessel' owners' agent was authorized, to ,contract on behalf of the o"'nersof the cargo as to the rate of salvage of not. 'the contract made by him; by which he secured better terms fOI1 :t1e vess¢l at the expense of the cargo, owpers, should not be enforced.
In Admiralty. , Samuel Park1 for lipel:ant. Walter a. for claiIr\ant. SHIPMA,N, J . This for salvage. The schooner Josiah Whitehouse, bound from Port ,Johnston to Boston with 445 tClns of coal, struck, ,about half past one o'Glock on ,Monday morning, (April 29, 1889,) on the part of, RaCE) Point,. the southwestern point of Fisher's island, at the entrance of Long Island sound. The night was dark, and there wai;! a thick fog. ,The were compelled to leave the vesseL On the 29th and 30th ther.ewas ,a strong wind from the south southwest, and the sea was rough. ThE) vessel bilged llnd sank, and the main rail was u,nder water. The'locality is rocky, and full of boulders, and is an exceptionally bad place from which to save a vessel or cargo. At this time the prospect of saving either was poor. On the mOl'1ling of the 30th Henry F. Kallock, the special agent of the owners, went to New LOI\don and saw the libelant, who is the owner of steam-vessels and a wrecking equipment, and makes wreck-saving his business, who offered to try and save the top-hamper for 50 per cent. of its value, if succesi:lful. 'On the evening of that day he said he would endeavor to save the tophamper for 40 per cent., in case of success, if he could have 75 per cent. upon the cargo asa salvage service. This offer was accepted by Kalloch, who had no express autbority from the owners of the cargo, or its insurers. He telegraphed to the: consignees of the coal, but without reply. The libelant telegraphed to the shippers, oiiering to save the cargo for 75 per cent. in case of su.ccess:They told him to telegraph the insurers, which he did, and made the same offer. They made no reply. On Wednesday the libelant went to the wreck with a lighter and 1 tug :and 12 men. They took all the top-hamper from the wreck, carried it to New London, and on Thursday put it ashore. He telegraphed to Poughkeepsie for the steamer Chester, a large steam wrecking vessel, with a large steam pump, which could pump coal. This vessel reached New London on Friday evening, and on the next morning (May 4th) went to the wreck with the libelant's lighter and tug. The Chester had
a
;,sCOTT V. }'OUR HUNDRED AND
OF COAL.
287
The libelant had eight men. Afterpumping about 20 tons of coal from the 'stern of the schooner, the current, which is always strong at that part of the Race, struck her broadside. She swung off and was towed into New London on the same day. She was leaking. The libelant sent· divers under her to ascertain her injuries. Steam pumps were employed to prevent her sinking. On May 9th the coal was libeled, and was bonded and removed from the vessel on May 10th. The value of the top-hamper was $800 to $1,000. The value of the vessel and hamper was $1,200 to $1,500. The owners of the vessel settled with the libelant for $600. They paid more than 70 per cent. of the libelant's estimate of the value of the vessel. The value of the coal 'vas $1,574.70. The insurers offered to sell the libelant their interest in the cargo, subject to his lien, for $800. No other offer of settlement was ma:de. The Chest£'r was accustomed to charge, and did charge, $100 per day from the time she left her wharf until she returned to it. The libelant paid her owners $600 for her services. The undertaking upon which he entered was an expensive one, and with little promise of as complete and prompt success as he had, and could not have been accomplished without the aid of appliances such as were on board the Chester.' . Without considering th£' question whether Kalloch had implied authority to represent the owners of the cargo, I think that the contract under which Scott reduced his ·offer of 50 per cent. upon the top-hamper to 40 percent., upon condition that he could have 75 per cent. of the value of the cargo, if successful, was a contract which tended to unfuirness. If the agent, who particularly represents the owners of the vessel, is permitted to obtain 1;>,etter terms for the vessel, by making a contract in regard to the, cargo which is favorable to the salvor, such a negotiation, if allowed and sanctioned by the courts, would result in injustice towards the absent party. The court is therefore not obliged to carry out the agreement. The Vesta, 2 Hagg. Adm. 189; 1'heAlbion Lincoln, 1 Low. 71. At the same tir,ne the lib.elant should receive large compensation. He took a serious pecuniary risk upon himself. The expenses were onerous, fortunate in saving the entire cargo. A very competent and he was for' the compla.inant testified that $1,000 or $1,200 would have price for the attempted services to ves;;el and cargo, been a fair without reference to a salvage service.. Under all the circumstances of pecuniary risk arid expense to the libelant, $1,000 is a proper sum to be allowed him forhis salvage service upon the cargo. It is true that, "as a general rule"the court will not assess a di'fferent ratio of salvage upon different parts of the property according to the labor expended upon those paris, although it may do so if the justice of the case requires it." The Albion Lincoln, 1 Low. 71. The assessment of $1,000 upon the IS a different ratio from that which the libelant accepted upon the top-4amper, but the large expenses of the Chester were necessary to save the hull and, cargo, while the services upon the top-hamper were far less expensive. '. I think that the justice of we case requires that the difference which the libelant recognized should be regarded, and that, if the:
two men and a foreman.
FEDERAL REPORTER,
vol. 39.
of salvage upon the cargo should be cut down to 40 or 50 per cent., the roesult would be inequitable. Let judgment be entered for the libelant for $1,000, and costs.
THE BARRACOUTA.
CUMMING
et al. v.
(District Court, S. D. New York. July 3, 1889.) SHIPPING-BILL OF LADING-NEGLIGENCE.
Chlorides having been shipped in barrels, instead of the usual carboys, on their arrival a part was found lost by leakage. The bill of lading excepted liability for leakage. Hela, that negligence in the ship must be shown to render the vessel liaMe for the loss, and, the cargo appearing to be well stowed, and no actual negligence proved, the libel was dismissed.
In Admiralty. Libel for loss of portion of cargo. Arnold &; Greene, for libelants. Wing, Shoudy &; Putnam and C. C. Burlingham, for claimants. BROWN, J. The above libel is filed for the loss of a portion of the contents of barrels of chloride, and 20 kegs of salt on a voyage from New York to Trinidad, in December, 1887. The bill oflading excepted liability for loss from "leakage," "effect of climate," and "heat of holds," and forbade "liquids or goods capable of doing damage being shipped, without the nature of their contents being conspicuously marked on the outsic'e of each package." It is evident from the testimony that the loss arose from leakage, and it is incumbent upon the libelant, therefore, to prove negligence on the part of the ship. The weight of evidence shows that such chlorides have heretofore been mostly shipped in carboys. In this case castor-oil barrels were used, and between 600 and 700 pounds were put in each barrel. The use of barrels, if safe, is doubtless much more economical and less subject to breakage. The evidence shows that barrels have been employed to some extent, while some large dealers are wholly ignorant of such use, and testified that barrels were improper and packages. The correspondence between the parties seems to indicate that the barrels in this case were tried to some extent as an experiment. .Without regard to these circumstances, however, I think the libelants fail to establish any such negligence on the part of the ship, as is necessary to a recovery. The Invincible, 1 Low, 225. The goods were well stowed in the hold, being undisturbed by a hurricane of great violence. Four barrels were found 'empty, or nearly so, when discharged, ha"{ing the heads bulged outwards. The evidence also shows that therest of these packages leaked, while the rest of the cargo in the hold was in perfect condition. .There is. 110 proof only reasonable inference that can be of improper stowage, and drawnis that the barrels were illstl'fficient for the weight put into them, and for chemicals of such a quality as they contained. . No negligence beillg established, the libel must }e dismissed, with costs.