,
me1iliillllda} i fdfieUons performed by the' machine are;
,ltll'subsequent machinrs:which employ substantially
c,otlt/l:in .!mproveIll6utsiill,sepa.raLe mechanisms $P .' I' iI"· Wie./3hpuldhave JeltJully justifjedin disposing ofthii3:case by a simplefl:{erp,l;Ice to, the 'opillion of Judge GRESHAM in th,eBrUBhElectric Gb. v.lit./ Wnyne Gb·· 40 Fed. Rep. 826, in which the same .upon the, :Brush patent; but"ipview of the imconstruction was oLthe involved. an'iof the elaborate preparation of counae!; we have deemed it proper to give it an illdepenq,ent consideration.: , Wear.eclearly 9f.op,inion that complainant is entitled to, relief in this ··md,l\decr,ee wm.thereJore be entered for an injunction, and the to a master to assess Rlldreport i.ts damages. usual I, . ' ." · ,
Sll.mQ,mearls to:a®olPplishthe sameras.ults are·!n1ri"gemellts.althouKh
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STAFFORD
et
cd.
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(Oircuit OOUrt, D. New Jersey. September 26,1890.) , '., .. ,-; . . .
COLLlsroilr.i...TuG AND STEAM-Bmp. A tug,'with a bark in, and·.a steam-ship were. apProaohlng nearly head on when .first discovered. .The tug signaled that she proposed to pass on the starboard side. The steamcshipsignaled in reply to port helm, and pass each other on the port Biele·. The tUg accepteel this signllJ, but the steam-ship, when so near as to reneler' a colJis,ion almost inevitable, cbanged her signals, and the. tug. to avoid being run uowti, turned quickly to the left, and eScaped by Ii distance of about a dozen feet. The .hark was unable to get out oftl;le way, IIond wall struck by the steam-ship. At the place where the collision occurred therewas nOIIJ,aterial obstL'Uotion to the view. Held,! that the tu&,was not in fault. , .
In Admiralty. On&ppeal from -district court. See 38 Fed. Rep. 767. De Lagne/, Eerier and Henry G. for libelants. Owm, Gray ,tt- ,SU.trge8, .for J ames:E. Stafford. Sidney' Ohubb( for F. O. Matthiesseri & Wiechers Sugar Refining Company/respondents; 13RAnqi:y, Justice. reading the evidence in this case, lam unaible to agree with the judge' of the district court as to the tug in faultirl regard to the collision between the Leonard steamp.rLtidwig Holbergandi tbe"b'ark Quickstep. The only direct evidence as to the'positiori and movements of the three vessels at the time 'of 'alld preceding Hie collision waS given by McDevitt and Devlin, the master and niatedf the ttJg;' by Woods, the pilot in charge ;Of and hy of tge Qllickstepj and from this evidence; taken together, it seems to me that the Holberg was taMaroa.. Had the people in charge of the Holberg been brought in toteMify{th'e case might have had a different lookj but they were
ltIlCRNAN fl.
543
not, and omISSIon to pr()duce raisee a presumption against the respondents. The account given by the captain and mate testimony of of the t\lg is substantially confirmed by the pilot, and. the officeni and crew of the Quickstep does not materially f.l.ffect it. That account is that the tug,' with the Quickstep in ,tow by a imwser of 80 fathoms in length, about half-past 4 o'dock in the afternoon of the 1887, had just issued from the Swash channel, on their 24th way to New York, and had t:ntered the main channel, and were heading north by',east on the course of that channel, when they discovered the Holberg coming down the channel, about half a mUe distant, nearly ahead,l>ut s1ightlyon port bow; she (the Holberg) heading aUttle more south-easterly than the reverse course of the tug and bark, so as to, show her starboard bow and ,side. Thereupon the tUg, as was proper to do, blew two blasts of the whistle to signify that she proposed to pass to the left; that is, on the stl;trboard side of the Holberg. But the latter did Il.M accept this offer,and replied with a single blast, 'signifying to port helm, and pass each other to the right, or each on the port side of the other.. .Tpe tug at once, accepted this signal, and, ;replied by a single blast to that effect; and immediately ported her helm accordingly, and the Quickstep did the same; but the Holberg, after porting her helm. SUffiCiently to bring her the tug and bark, steadied her helm 80 as to run directly towards, them. Seeing this, the captain of the tug repeated the single blast to call the attention of the Holberg to the maneuver agreed on. But theIl. the Holberg, when 80 near as to render a collision almost inevitable, blew two blasts, and the tug, to escape being run down, turned quickly to the left, and just escaped by a distance of only ten or a dozen feet. The bark was, absolutely unable to get out 01 the way. The Holberg kept on her course, running between the tug am. the bark, cut the towing hawser in two, and struck the· bark on her port quarter, abaft the mizzen-topmast back-stay, cutting into her several feet. 'which caused her to Sink, and produced the loss in controversy. It is clear from this evidence that the disaster was caused by the HoI berg not complying with the signals agreed on, and changing the sign ale at an inQpportune moment,and that nofault can be attached to the tug Undoubtedly, the vessels far enough apart when first seen by eacl other to ,have avoided aU danger of collision. The channel was wide enough to have enabled either of them to bear away at a safe distance. The tug, by sheering off greatly out of her course, could have kept away from the Holberg, if the latter contumaciously refused to give way. .But the ordinary rules of navigation do not require any such anomalous course. It may be presumed that each vessel will observe the rules laid down for passing each other, and which are abundantly sufficient to obyiate COllisions, w,ithout;.requiring theIllto make wide and useless circuits. 'The after' wisdom which points out what might have been but which the ordinary rules of human conduct do not expect to be done) is no criterion for judging of culpahility. Considerable evidence was taken by the respondents the F. O. Matthiessen & Wiechers Sugar Refining Company, after the other evidence
F.B:DERAL BEl'ORTER,
vol. 43.
wascll:lsed, to that there was' a at the place of collision at the time it occurred, and that this fact materially affected the duties of the parties by enhancing the care and caution required of them in speed, by the steamer and in makinga'nd .distingnishing the' signals whistles; a degree Of care and caution whiCh the colliding parties on both But all thewitriesses who were present and witsides failed to nessM the disaster agree that, while the weather was somewhat thick and hazy, there was not sufficient fog to prevent a clear view of vessels and objects a mile or two away I and that the Holberg was distinctly seen and noted from the tug Rnd bark when she was half a mile off. Drifts of fog were coming in from the sea about that time, and some vessels were enveloped in fog banks occasionally, which made it necessary for them to slow 'Up and make fog signals. But. at the place where the collision occurred; and when it occurred,there was no material obstruction to the view. .This is testified to not only by the master and mate of the tug, bu, by the dozen witnesses who were on the bark, and wel'e produced by the owner, the respondent Stafford. I am of opinion that the tug Leonard Richards was not in fault, and that a decree to that effect should be made in favor of her and her owners against the respondents, discharging them from all liability for loss occasioned by the collision in question.
HAMBLIN
v.
THE ROCKAWAY.
(Oirauit GO'Urt, S. D. New York.
August 18,1890.)
STEAQRS-FAILURB TO ANSWER SIGNAL-DuTY TO STOP-':-CROSIlo
'..'he steam-Ughter I., going up the East river near the New York shore, came in collision, Ilear dock, with the ferry.boat R., bound from Hunter's point to slip, and having the right of way. The R. three times gave .. signal of one whistle, when offrJ'hirteenth street, Twelfth street, and Eleventh street, wnen she received a signal of. two whistles from the L, which attempted to go neilr tbe shore; and the two collided port bow to port bow. Beld, both in fault; the L' for crossing the R.'s course, and keeping to the left near the shore, without reasoQ; the R. for not soone!). under inspector's rule 5, or as soon as the L'. intent was made known. A1lirming.lll:S Fed. Rep. 856.
In Admiralty. Appeal from district court. Rice & BijUf, for appellant. Anabn Beebe Stewart, for appellee. Circuit Judge. costs.
Decision of district court affirmed, with