Слике страница
PDF
ePub

arbitrarily located. By thus uniting the track plate and the socket it is claimed that infringement is avoided, inasmuch as the infringing device omits the flange, F, of the patent. By thus making in one piece the two parts of the patented device, no material change in form or function has been produced. The track plate itself constitutes a flange for the socket, so far as it was the function of the track plate to prevent the socket from being driven too far into the receptacle prepared for it in the leg of the furniture. By making the socket and track plate integral, the latter is held in attachment to the socket, an attachment maintained in the device of the patent by means of the flange of the socket. Neither the division of the track plate nor the uniting of the socket and track plate into one piece operate, when in use, to vary the "peculiar curved form" of the track plate of the patent, and the functions dependent on this form are precisely the shoe functions of the infringing device when the caster is removed. We are impressed with the belief that this division of one part and uniting of two others has been done solely for the purpose of escaping infringement. Narrow as the Berkey and Fox patent is, we cannot ignore the fact that, if such merely colorable modifications are to be sanctioned, the very essence of the patented device will have been appropriated. It is not broadly patentable to make in one part, without change of function, an article originally made in two or more mechanically attached. The converse of this is equally true. Infringement cannot ordinarily be escaped by merely cutting in two a device made in one piece, or by making integral an article formerly made in two. Bundy Mfg. Co. v. Detroit Time-Register Co., 36 C. C. A. 375, 94 Fed. 524. To escape infringement some special facts must appear to show that the change is not merely colorable.

The decree sustaining the validity of claims 3, 4, 5, and 6 of the Berkey & Fox patent, and finding that they have been infringed, is affirmed. The costs of this appeal and of the court below, so far as they have accrued, will be divided. The cause will be remanded for further proceedings in accord with opinion.

(113 Fed. 169.)

WEST INDIA & P. S. S. CO., Limited, v. WEIBEL.
(Circuit Court of Appeals, Fifth Circuit. January 7, 1902.)

No. 1,070.

SHIPPING-INJURY OF WORKMAN-LIABILITY OF SHIP.

The owners of a ship are liable for an injury to a carpenter, employed by a firm which had been hired to make repairs or changes in the interior of the ship to fit it for cargo, and who was sent on beard to work during the night, and fell through a hatchway in a dark and unusual place, which had been negligently left open, without notification or warning to those who were doing the work.

In Error to the Circuit Court of the United States for the Eastern District of Louisiana.

This case was commenced in the circuit court on a petition, among other things, showing as follows: "Petitioner shows that he is a carpenter by

trade, and was, at the date first mentioned below, employed as such by the firm of William J. Hannon & Co., a commercial firm doing business in the city of New Orleans, to do certain work on the steamship Nicaraguan, belonging to the West India & Pacific Steamship Company, Limited, a corporation organized under the laws of a foreign country, and having its domicile and residence in said foreign country (which said country your petitioner is informed, and so believes and charges, is the kingdom of Great Britain). Petitioner further shows that on or about the 1st day of May, 1900, between the hours of 12 o'clock midnight and 4 o'clock a. m., he was directed by the said William J. Hannon & Co., by their employés and foreman, under whose orders your petitioner was working, to go aboard said steamship, and, with others employed with him, to do certain carpenter work in the interior of said ship, which work was the work your petitioner was employed to do. Petitioner further shows that while he was at work in the interior of said ship it was the duty of said West India & Pacific Steamship Company, Limited, to provide sufficient light to enable him to do said work, and to have the hatches of said ship in that part where he was at work securely closed. Petitioner shows that said West India & Pacific Steamship Company, Limited, failed and neglected to do either of said things; that although there was a good electric plant aboard said ship, and that same had been running in the early part of the night, that same was shut down (although same was in good working order) before he was sent aboard said ship and put to work therein, and that the only light furnished him in the dark interior of said ship was a tallow candle. Petitioner further shows that the hatches on said ship were not closed, but were left open and uncovered, although same were not in use, especially what are known as the 'bread hatches,' which are situated in the side of the decks of the steamship Nicaraguan, which is a most unusual place for a hatch to be situated; all of which open hatches and absence of light your petitioner shows was due to the fault, laches, and negligence of the said West India & Pacific Steamship Company, Limited, its servants, officers, employés, and agents, whose duty it was to provide a safe place in which your petitioner could work, and sufficient light to enable him to move about in the interior of said ship, as his said work might require. But your petitioner shows that the said West India & Pacific Steamship Company, Limited, its officers, servants, agents, and employés, required and compelled your petitioner to work in the interior of said ship without taking reasonable and necessary precautions for his safety by closing said hatches, and providing proper and sufficient lights, as it was their duty to do, although said steamship company, its officers, agents, employés, and servants, knew that your petitioner was working in said ship. Petitioner further shows that at the said time he was a minor, under the age of twenty-one years, and that he has only lately attained his majority. Petitioner further shows that about the hour of four o'clock a.m., while working in the interior of said ship, and in the absence of proper and sufficient light, your petitioner, without fault or negligence on his part, fell through one of said open 'bread hatches' in the side of the deck of said ship, into the hold of said ship, a distance of about twenty-two feet, falling upon the iron bottom and sides of said ship. Petitioner shows that by said fall he was greatly injured, bruised, and damaged, his collar bone was broken, his right arm was broken, his person badly bruised, injured, and broken in sundry places, and he suffered concussion of the brain."

The answer of defendant shows, among other things, as follows: "That it denies all and singular the allegations therein contained, except such as may be hereinafter specially admitted. Further answering, this respondent admits that its steamship Nicaraguan was in the port of New Orleans on the 30th day of April, 1900; that this respondent had a contract with W. J. Hannon & Co. to fit said steamship Nicaraguan for grain; that under and by virtue of said contract said W. J. Hannon & Co. performed certain work in the hold of said steamship Nicaraguan; that the plaintiff herein was one of the employés of said W. J. Hannon & Co., and that he received certain injuries, of the extent of which respondent has no knowledge, while in the employ of W. J. Hannon & Co.; but this respondent avers that it is in no

way or manner or in any amount liable to the plaintiff herein by reason thereof, there being no privity of contract existing between this respondent and plaintiff, and there being no obligation arising ex delicto or by reason of any act or negligence on its part in favor of plaintiff. Further answering, this respondent avers that if plaintiff was injured, as alleged in his petition, it was due to no fault or negligence on its part, and, if due to the fault or negligence of any one other than the plaintiff himself, it was due to the fault and negligence of W. J. Hannon & Co., his employers, with whose conduct of the work of fitting said steamship Nicaraguan for grain this respondent in no wise controlled or interfered, and at whose disposal were all the necessary and proper facilities for lighting the said ship, and otherwise protecting all persons employed or coming on board from injury and damage; said steamship Nicaraguan being, at the date of said accident, fitted with a complete electric lighting plant, together with all usual and necessary 27purtenances for fully protecting all persons employed or coming on board said steamship, and said steamship actually burning at the time of said accident all lights usual and necessary for lighting said steamship."

By a bill of exceptions it appears that: "A jury having been impaneled, and the pleadings having been read to the jury, Mr. Gilmore, on behalf of the defendant, objected to all testimony or evidence on behalf of the plaintiff in this case, on the ground that the only cause of action that the plaintiff has is against Wm. J. Hannon & Co., there being no privity of contract between the plaintiff and the defendant, and there being no obligation arising from the defendant to the plaintiff ex delicto. This objection being overruled, counsel for the defendant then and there duly excepted, and hereby tender this, their bill of exceptions, to the court to sign and seal, and the court does hereby sign and seal the same."

J. P. Baldwin, for plaintiff in error.
John C. Wickliffe, for defendant in error.

Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges.

PER CURIAM. The only error insisted upon in this court is in admitting evidence over objections in support of the facts alleged in the petition. The question, as presented, is the same as if, in the court below, the defendant had filed an exception of no cause of action. The petition shows that, having business aboard the defendant steamship, the petitioner was there injured by falling through a hatch, in a dark place, which hatch the owners had negligently left open, without giving sufficient notice thereof, and charges that the owners had neglected their duty to provide a safe place for petitioner to work in said ship, and had not taken reasonable and necessary precautions for safety. It is well settled that the owners of a ship are liable for injuries to persons not notified nor warned, and who are lawfully aboard the ship, when such injuries are caused by, or directly result through, negligence in the construction of the ship, the lack of safe appliances, or from the failure to take reasonable precautions for the safety of such persons, and we are clear that the petition in this case avers facts which show prima facie that the defendant was liable for the injuries suffered by the petitioner. The case is argued as though the petition showed the case of a ship fully turned over to a contracting stevedore for the purpose of loading or preparing, with notice of defects in dangerous places, in which case it has been held that the owners are not liable to the employés of the contractor for damages arising from the open condition of hatches or other defects. For the declaration of the rule,

see The Auchenarden (D. C.) 100 Fed. 895. That, however, is not the case here, but rather such a case as this court found in Burrell v. Fleming (decided at the last term) 47 C. C. A. 598, 109 Fed. 489, where the owners were held liable for injuries to a stevedore's employé falling through an uncovered hatch, because sufficient notice. of the ship's condition was not given. The ruling complained of was correct. The record shows a case in which interest should be allowed from the date of the verdict.

The judgment of the circuit court is amended so as to allow legal interest from rendition of the verdict, and as so amended is affirmed. All costs to be paid by the plaintiff in error.

(113 Fed. 173.)

MERRITT & CHAPMAN DERRICK & WRECKING CO. v. CHUBB et al.

(Circuit Court of Appeals, Second Circuit. November 22, 1901.)

No. 30.

1. ADMIRALTY-PLEADING-WAIVER OF MISJOINDER.

Where no exceptions are taken to a libel in which separate claims for salvage and towage services against different defendants are joined, objection to the misjoinder is waived.

2. SALVAGE-SUIT FOR COMPENSATION-DECREE AS BETWEEN DEFENDANTS. The pleadings and profs in an action to recover for salvage services, in which judgment was rendered against an insurer which had contracted for the services, held not to authorize the court to decree the payment of such judgment by the company which owned the salved vessel, also a party defendant, on the ground that in another proceeding by it for limitation of liability it had been permitted to retain a sum deducted from the appraised value of the vessel to pay the claim of the salvors.

8. ADMIRALTY-SALVAGE AWARD-INTEREST.

Where a libelant made greatly exaggerated and unwarranted claims for salvage services and towage, he will not be allowed interest on the amount awarded.1

Appeal from the District Court of the United States for the Southern District of New York.

This is a libel for salvage services in raising the passenger steamboat Catskill, which had been sunk in collision in the North river, and for towing her ashore.

The following opinions were delivered in the court below by BROWN, District Judge:

In the decision previously announced I held that Chubb & Son were not bound to pay for raising and towing the Catskill at ordinary contract rates per day's work, but only in proportion to the value of the results of the salvage operations; and in this view I apportioned the amount to be paid by the Catskill Company at $200, and by Chubb & Son, insurers, at $500, making $700 for the whole salvage service.

The salvage service was, however, a lien upon the vessel or her proceeds. The vessel was sold under a subsequent libel in New Jersey, and bought in by a third person, in reality, as it appears from the statements of counsel,

1 Salvage, awards in federal courts, see note to The Lamington, 30 C. C. A. 280.

for the benefit of the Catskill Company. The Catskill Company received the proceeds, which after deducting for the repairs upon the vessel prior to the sale, netted about $734, which the Catskill Company still holds. That company, moreover, in limited liability proceedings begun in this court and still pending, procured an appraisement of the vessel, and gave testimony by its president before the commissioner on appraisement, showing that the fair value of the salvage service, which would be a lien upon the vessel or its proceeds, would exceed the entire proceeds derived from the sale of the vessel in New Jersey; and upon this testimony the report of the commissioner was made allowing this salvage service as a deduction from the value of the wreck, which was therefore considered as nothing, and he reported 85 cents as the only proceeds, which represented so much unpaid "freight pending."

Chubb & Son upon the payment of the sum of $500, under the decree in this cause for salvage services, would by subrogation have a right to be indemnified to that amount out of the proceeds of the vessel in the hands of the Catskill Company for which allowance was made as a deduction in its favor in the limited liability proceeding. As all parties are before the court in both proceedings, and both are pending, the proper dispositi n of the whole matter would be, in recognition of this whole relation, as in the case of The Eleanora, 17 Blatchf. 104, 105, Fed. Cas. No. 4,335, to direct that both the sums of $500 and $200 be paid by the Catskill Company as a charge against the net proceeds in their hands, received from the sale of the Catskill and referred to in the limited liability proceedings. The small sum remaining would probably not more than pay the costs due the Catskill in the limited liability proceedings, and no further accounting for those proceeds would, therefore, be necessary in that proceeding; it being conceded in the brief for the petitioners therein, upon the report of the commissioner on appraisement, that unless the proceeds of the sale of the vessel were thus applied, they must be brought into court by further order. A decree may be settled on notice in accordance herewith.

Settlement of the Decree.

(November 29, 1899.)

The decree previously directed is for the best interest of every party concerned, and one competent for the court to make. The technical objections raised seem to me mistaken.

1. The libel was filed to recover compensation for services of a salvage character, and for nothing else. The claim being based upon an alleged contract, founded on the defendants' request, and the suit being in personam, it was proper to state the case in the introduction to the libel as either a "cause of salvage," or as a "cause of contract." Neither form is necessarily exclusive of the other, or very material.

2. After the exceptions to the original libel, the statement of separate claims against the different defendants in the amended libel, was of course technically objectionable; but no exception was taken to the amended libel and objection to it was waived, and for the convenience of all, the trial proceeded upon the amended libel by consent.

3. The objection that the facts stated in the last opinion were not before the court, is a mistake. All the matters there referred to were either proved, or had been repeatedly stated by counsel in the three or four preceding hearings of the case, as facts in the cause, commented on and submitted to the court as admitted facts. The record in the limited liability proceedings of the Catskill, had been three times presented for the inspection of the court, upon as many different arguments, and was minutely examined. The sale under the New Jersey libel, appears from the evidence in the stenographer's notes; and the sum of about $734 was stated and acquiesced in without contradiction, as the net result. All the facts presented and submitted to the court as a part of the case, belong to the "record" when made up. That these matters do not all appear in the stenographer's notes is of no importance. A case may be, and occasionally is, dismissed upon the

« ПретходнаНастави »