444
FEDERAL REPOR'rER ,vo1043.
thirtk,disciosesilofridication olanysuch fntts' luoid statement of the com binatiol1 , the language touching this element is, "8 rest or stop for said lever, whereby, through the slotted connection with the reversing link, all jar or vibration is removed from the actuating lever;" and the claim itself contains no such express limitation as is suggested. The is rather to be regarded as one of the forms of stops contemplated by the patentee. . As already intimated, the Bliss invention was one of unusual merit. He was not a mere improver of an old mechanism. No pre-existing reversing gear met the needs of oil-well operators.. Bliss' device, and his only, so. With reference to the particular field ofindustry for which it was devised and to which it is especially applicable, his reversing gear was notolily altogether original, but was of immense value. It met new oonditionsand new wants. He accomplished results much sought after, which nO- One ·before him had been' able to achieve. He was the first to devise means whereby the driller, standing at a distant point, can give 1i. positive movement in either direction to the reversing link, while, upon the release of the actuating lever, the reversing gear, by means of the stop, will automatiCally adjust itself to a disconnected position. Bliss' device first made it possible to use, in drilling and pumping oil-wells, an unbalanced.' slide-valve, thereby avoiding a waste of steam, and promotingeconomy'in the consumption of fuel. The invention, then, was reallyoneofa:'primary charaoter, and the patent well deserves to be liberally dealt with, both in the lllatter of construction and in giving to the patentee and his assignees, in full measure, the bflnefit of the doctrine of equivalehts. . (JoriBolJidaWd, etc:., Valve 00. v. crosby, etc., Valve Co., 113 U. S. 157,·5 Sup. Ct. Rep. '513; Machine Co. v. Lancaster, 129 U. S. 263, 9 Slit>; Ct. Rep. 299. <Let a decree be drawn in favor of the plaintiffs.
THE L4 CH4MPAGNE. J SEW'ALLet al. · 1;' ' - ,
v. THE
LA CHAMPAGNE. V.' .
COMPAam GltNERALE TRANSAT1.NNTIQUE .'
SEWALLet
at; (two
cases.)
(Dtstrict Oourt, S. D.Nmo York. July 81,18110'1 BLOWING-LIGBTSMISTAKEN "
.
AND·DEI!'EC'I'fVE.·
The steam-ship'La on one of her regUlar voyagell from Havre t.o New 1:'ork., and when about 25 mlles south of Shinneoook.light, o.n the Long island coast, at about 5 olclock A..M., oollided with the sohooner'BelleHiggins, bound from to.Bath, Me., The evidence for the schooner }Vas to the effect that she flrl:lt m.lide th,e steamer's white light on her starboard bQw, tpen the red light nearly' on the' starboard beam. Thereupon she Showed a torch-light to the steamer, and then another, and afterwards tired a gun, notwithstanding which the collision ep;sJled..· testimony was that, when the torch was seen l'RePoi'ted
bi Edwaro G: Benedict, Esq., of the-New York bar. '.
THE, LA CHAMPAGNE.
445
allea,d, or a Uttleon 'the port bow, they supposed it to be the signal-light of a pilot-boat; and, wishing a pilot, the exbibited a torch in reply, and altered her course a point to starboard, but without slackening speed of 13>g' knots. . At the the schooner's gun was heard, a faint!.reen light for the first'tiine, whereuron theeng'ine was reverse , and the put hard a-port, but to.o late to avoid collision; and a low intermittent white light was said to have been also seen a little above the torch-light. Held. that the was not justified in the schooner for a pilot-boat; but; if so, it was still her duty to check her headway nearly to a stop, and tbat her continued high speed of about k;nots was a fault; and that, as to the schooner, the supposed angle of collision III the is uncertain evidence, and that the weIght of eviden.ce was that the steamer was coming up within the range of the schooner's green light, and; not astern of that ranlte; but that the green light was 80 dim as not to be visible to the steamer withIn the distance necessary to avoid her; and. for this fault the schooner was liable. The damages were· therefore divided. includ· ing WWage services supplied by the steamer.
In Admiralty. Suits for damages by collision. Owcn,Gray & Sturgis, for·Sewall et al. . Coudert Bros., {E. .K. Jone8, of counsel,) for the La Champagne. BROWN, J·. The above libels grow out .of a collision which occurred a little after 5 o'clock of the morning of the 25th of February, 1889, in the Atlantic ocean, about 25 miles south of Shinnecock light, between the French steamer La Champagne, and the three-masted schooner Belle Higgins.. The stem of the steamer struck the schooner on her starboard side forward' of the forerigging, and cut off the starboard bow, so that she filled in a few minutes. Being loaded with lumber, the schooner did not sink; andwaB left adrift until a tug was sent by the steamer to her assistance, by her maBfer'srequest, as the steam-ship claims, for whose towage servibethe steam-ship company afterwards paid. The third libel ,is to recov,erforthispayment. The other libels are for damages to the respective veSsels,. the owners of the schooner claiming $40,000 for the ;schooner,. cargo,freight,personal effects, and the salv.age steam..ship cIDmpany claiming damages to the amount of 335,000. Atthe tinle;of theoollision the weather was tolerably clear. It had been foggy during theriightprevious, and the steamer was going at a somewhafre,duced speed,-about 13! knots, under 45 revolutions, instead of 54, her fllllspeed.. 'Sbe:was on, one oiher regular trips ,from Havre to New York; and, on taking soundings off Long island, while on a course of west true, about3'o:cloek A. M;, the instrument having: unexp,ectedly indicatedlbut 16 fathoms of water, her commander ordered her headed one point more to port until half past 5. ,The schooner ;was bound from Darien, Ga., to Bath, Me., and was sailingN. N. E. magnetic; the wind, as she claims, being light froin the S. giving her a speed ofabont three knots. " Her !contention is that the steamer's white light was first seen wellotI' on the ,starboard bow, several miles distant; afterwards the steamer's red light, nearly on her starboard beam; that, as the steamer continued to approach, showing no change, the mate in charge of the schooner, being in doubt whether the steamer, was in range of his green light, exhibited a. the starboai'd' side of the mainsail,which illuminated ttllher sailsjthat. the steamer's red ,and ,green lights having become vis.. ohange in ,her :Cf>tiDe,::.the p:tasterwas. called ,on
'lUiJ>Yler · 01, tben VlSlb1e"and alleged, to,1;>.e aft. ofthfl"raQge:-p.f, the that 11 fired, but that tbe steinuer:,ooriunued ,following<upJhe,!lchoQner under a port v'ery-soon' 'of the ;,her as above stated; that the schopner tniide"nocnange her that the. caused by the negligence of the steamer: mDot properly obs.ervmgUie schooner, and is that, while going ,asahovestated, with compewnt officers on the bridge, and three competent and attentive persons on the lookout, the first notit::e of the schooner was a torch-light, seen either ahead or a little on the port bow, and at times an a little a;bove the torch-light; that no green light opthe schoonef,wrtsseen orwasyisiblejthat the officers 61f tWe' steamer supposed' the torch.light shown tt) ,be that of a' pilotboat, and, being in want of a pilot. they exhibited a torch-light in re'ply ,which ,was' fonowed 'byanother, torch-light shown: by the schooner, which W1t$J interpn;ted by: the steamer as an agreement that the pilot woulcl,cbn1e aboard; thattbe whitp.;,light,.beinK seeIlJ:not much above the toruh..light,and intermittent, was supposed tobea considerable distance ofI'jand that the steamer's head, in order to, facilitate the pilot in boarding heron her port side, was put one point more to starboard, but .withotlt sIaickeningspeed., .A while afterwards the 'discharge of the gun washea',d"tl:le,flash of 'whiohshowed the schooner and about the sarna ,time a faint glimmer of a, green light" wassE'en.: When the gun was heard tHe engine was ,reverse<l' full, speed I and the helm put hard a-port.;;The.icollision occurred soon thereafter, the steam.ship changing her headmeantilne two or three-points to starboard. ,:Thedistance of thevessel$,spart, whenthe,JguJ'll'Was fired and the engine reversed, is viuiously ell,I.'Imated. by the Miitnessei:l at from 100 to half a mile·. From the amount of.the tostarhoard, the distance,. I -think, could Mil' QeJess,thanfllcm11,OOO to 1,500 feet. The. weight of testimony! is, that. at the moment, or collision the' steamer was heading towards the blllwof the schooner, and forwards"at an'angle of from 81.to 6 pointe. :; ,1':1 , ,'1 I, 1. Inrhyiju.dgmeAt-the evidence does not show facts on theeteamer's part sufficienHoJustify her m taking the Bene Higgins to bell. pilot-boat at a 10ngdisu1ll'C6off; and in:tbere£ore continuing on at the unabated speed of 131- knots until she .was so near as to render collision unavoidable. If the' hearing ofthepilot-boat when the torch-light was seen was a'point on:the steamer's. port bow, as the steamer's officers say', no doubt thesohooner's'green light ought to have been seen distinctly. But a toroh.;Jight without WRsnot sufficient ''fu. in9icatea pilot-boat. In the absehce: of a white; mast-head light,' the ,torch 'Would: mean only that/the steamer was' overtaking another ves,sel astern of the range of her i colored lights. There was no light on the schoottel" ,that could possibly present the appearance of the white mast-head;Jightrequired of pilot-boats by the rules of navigation.
rhe low,}aint; and interntittenHight said to have been seen by' of the. steamer's witnesse!l l!>little above the torch-light was so different,in b:rigMness and in position from the light required to .be carried. by pnots' at the 1;ll8st-head that it was itself, an indication of the need. of Cf!;ution in approaching, instead of a justification for continuing on at alJOost fvJhpeed. The onlywhite.light possible to have:been seen by the wail Jhe cabin visible, if at all, through the schooner's sky.. lig4t. Thl;) low, faint glimmer of such a light, familiar to seamen, can.. not be deemed to .h.ave bellJ1 justi.fiably confound:edwith a pilot's mast;;. head. light, 'without a totaldiscredit.of the propriety of the eleventh and of naviga,tion,--:adiacredit which I am :not prepared to admit.. But if the schooner was justly mistaken. for a pilot-boat,. the steamer callnofbe justified for her contiriUed. high speed. As I have said, thl;labsence of the usual high bright light was of itself an indicatiQn of the need Her dista.nce could not be exactly kno\vn. The pil(),t-ppat might desire to cross the steamer's b()w,and come up round her stern, as ill,sometimesdope; a.nd}.t was the duty of the steamer to her hea.dWllY nearly. to a stop, and let .the pilot-boat do the rest. The <Jityoj 92U.. S. 11 Blatchf.487, 6 ,Ben. 140; 'fheOolumpia,27 Fed. Rep. 704:, 708. It was this failure to check her speed that dire(lt)y J)loughtfl,bopt the collision. In the Case of the Wis-. CO'/l8in, whe;rea..similar mislakq was made in regardtoa·supposed pilot.. by the court.(25 l!'ed. Rep. 284) that, "\Vhen the steam... poat, it '!Vaa ship was ata Sllfc distance the .bl!>rk, her engiues .were stopped, and ller headway was.suQstantinHy overcome while waiting for the pilotto in his boat." Bad the Champagne's engines in !,It.ance been II stopped. whenllt a safe distance, and her headway subthere would certaihly hnve. been. no coUisio.n ,. with tlteBelle aiggioll. 'rheCharnpagne, ontbe contrary,for a very consid.. time a.fter th.e ;flash-light had been twice seen, continued on at the spl:ledof her full speed,-until a gun was tlCarcely Il.. quarter of.a mile· pis4tnt,-her cera estimate the distance lPuch less,--:-whe" i.t wasjmpossible to avoid collision.. In this respect l IL\ust holdtbe C,l;u,tmpagpeto blame. . . .2. Whether tll;egreen light oftheschooner ought to havebeen.visibI.e t9 the.stea,lf,ler. depends on whether the steamer was approaching her ;within range of that light or astern of .it. Considerable stress has;been supposl3dsmall angle ofcollision, the schooner's contention on But,! think anYcgreat weight can be attached to this evidence, both because the amount of the angle is so likely to be mistaken in the night-time, and on account of the changes in the steamer's heading, and, possibly. in the schooner's heading. Although the wheelsman of the Belle Higgins testifies that her course was held unchanged, it is quite probable that, during the last few moments before collision, her head would be turned to port by the almost irresistible impulse of self-preservation. I find it impossible to reconcile the testimony of her witnesses on this point with the possibilities of the collision.All agree that the steamer was first seen forward of abeam. The
om
448
FEDEaAL, BEPORTER,
vol. 43.
pleadillgs ,say,lI on the starboard bow." With that simple fact"and with the steamer's speed of13tknots; and a course suchaato expose her red Itght onln I find it imposSible for the steamer to have got two points astern, of-the schooner's beam, so a.s to be out of the range of the schooner's green light,' as the witnesses 'of the latter testify she was. Such a Course of approach by the stf'.amer, mOreover, would be some three or four points luore northerly than the course the steamer testifies she was pursuing, would also direct her sharply towards the Long island shore. Now, although 'it is,',not in "itself incredible, considering the previous circumstances, that ·the steamer, might have been heading towards the land for the purpose of making the shore lights, which she had not yet seen, yet all her officer$ testify in the: most explicit terms that they had not taken that course. There are no circumstances to justify suspicionof falsification as to ,the course that the ,steamer was going. The reasons for the cOluse .taken are stated with a minuteness of detail that carries credit on their face. This ,cour3e is totally incompatible with the schooner's contention that the steamer came,u}> astern of the, range of her own green lightaftet;being seen "on the starboard bow," unless the schooner, contraryto her testimon v, dhailg.ed her own course to port, so as to bring the 'steamer astern 01 that range by her own action. My conclusion on this head leaves no alternative' but to find, as in the Case of the Wis·consin, that the schooner's, green light was so dim as not to be visible within the :distance necessa'ry, tOlavoid her. Had it been visj.ble, it must have beffrn' seen by the special watch kept on the steamer. It is not nee-essilry ,hereto deCide whether'the exhibition of a torch-light to aHract attention by a' vessel not being over-taken is a,. breach of the existing rules, -'a ppinton' which oppositedecisions have been made. The Merchant Prince, lOProb.Div. 139 ;,The Algiers, 38 Fed. Rep. 526; The Ness'l'TLQre,41 Fed; Rep. 437.' The new proposed rules would, if adopted, exptessly permit (ar.ticle 12)the exhibition of such a light. But for an insufficient green light the schooner must be held to blame, and the damages and <Cbsts, therefore, apportioned. The same disposition is made Of the claim for. moneys pa:idout by the owners of the Champagne for the towage services of the tug sent down to the assistance of the schooner. This'was done,' with' thekno:wledge and consent of the master of the schooner, if nqtat his and he accompanied the tug. It was a ,proper and necessary' act· and expenSe under the circumstan{lesas . understood at the time,lmd it was a direct consequence of the collision, arid should therefore be divided) like the other damages.
,
...
;;1 ..
449
(Circuit Court, W.
Michigan, :Nc'])',
22, 1890.)
JURISDICTION-AcCEPTANCE OF SERVICE.
Acceptance of service 1::l.eing merely eqqivalent 'to personal service in the district, does not prevent a defendant from moving to dismiss the suit because brought in a. district which he does not reside.
At Law.
On motion to dismiss. L. G. Palmer" pist. Atty., for the U WebBtel' &, Wheeler, for defendants.
SEVERENS, J. In this caUse a motion is made to dismiss upon the ground that the. defendants are citizens anll inhabitants of the state of Wisconsin. It appears that due service of process was accepted bY' the attorney for the defendants, within the district, by his to that effect upon the declaration, by which and a rule to plead the8uit was originated. This was done to save the trouble and cost of personal service on the defendants, who were within the district, but wished to leave the state, and had actually left Marquette before the papers were ready fqr For convenience the acceptance of service was apparently understood as a substitute for personal service. It also appears that there was an oral agreement between the attorney for the United States and the attorney for defendants that it was a' condition of. the agreement thtls to accept servi<le that the cause should not be brought to trial at the next term of the court. By the third special common-law rule of the courts in the districts of Michigan it is provided that no private agreement between the parties or their attorneys respecting the proceedings in.a cause shall be binding unless it be in writing. This rule would render null the oral agreement above referred to, and leave the matter in the same situation as if it had not been made. The question wOuld then arise whethet the acceptance of service would be equivalent toa submission to the jurisdiction of the court. Without such submission, the defendants could not be sued in this district, the suit not; being one in which the jurisdiction is founded on the diverse citizenship of parties. Act Aug. 13, 1888, §l. I am of opinion that the objection was one which could be waived by the defendants, the provision in .the act referred to having regard only to the place where the suit should be brought and tried. Jurisdiction is given by a former provision in the same section. In the circumstances of this case I do not think the acceptance of service amonnted to more than :l. personal service of process made in the common conrse. The waiver, to be binding, ought to be dearly manifested, and the court ought not to hold the defendants for trial here upon a strained construction of the action and conduct of the parties. If any forward step or valid stipulation looking to further proceedings had been made in the case the result would be different; but there having been none, my opinion is that the case must be dismissed. The proper order must be entered accordingly. v.43F.no.7 -29