nE MARY H. 'BROcKWAT.
161
the llpper side of the bars, that is shown in the Kline patent bars. In our opinion, this patent is invalid. . The shield or guard pieces which are claimed singly and in combination ill No. 421,928 are'substantially the same, and amount practically to substitutes for the sleeves on the rods shown in the Gilbert patent, excepting that they present inclined surfaces to any hook or chain dragging from a passing car. We find that this was nothinf.;' more thaoll. mechanical device, which, before the date of the patent, had been in commo'nuse in various structures, and that it shows nothing novel or patentable. either singly or in any of the combinations claimed. The decree of the court below dismissing the bill is afl4'med.
THE MARyH. BROCKWAl'.· STARK
et al.
tI. THE
MARY H. BROCKWAY. January 14, 1899.)
(Dl3tr1.ct Cowrt, & D. Neio Yor1c.
CosTS AND FBBB-MARSHA.I}S, COIDIISSIONB-RBV. ST.
In a suit to possession of a vessel, where the marshal seizes and takes possession of the vessel. and. on settlement of the suit, delivers up possession of the property subject, to his fees, he is enj;itled to bis rej;tular commissions on the value of the vessel, under Rev. St. 5 829, besides keeper's fees, though the olaim was not for a money demand.'
5 829-Pj;)SSESSORY
Burr··
In
James Parker, for libelant.
On appeal from taxation of costs. .
BROWN,District Judge. Upon a libel filed to recovat' possession of the schooner Mary H. Brockway from ll. plItt owner; who had been removed l1S master, but who refused to give up possession, the marshal arrested and to9k possession of the veSsel under process. Thereafter the suit was between the parties, and the, possession of property was accordingly delivered by the marshal, subjeCt to the payment of his fees. The vessel being ufthe value of 825,000, the marshal's fees were taxed at the sum ()f $127.50, under section 829 of the Revised Statutes. The libelant appea.ls from the taxation, on the ground that section 829 allows only '$2.50 per day for keeping the vessel; that the language of the folloWing paragraph of that section, giving the marshal a commission "wben the debt or claim in admiralty is settled by the parties without a sale of the property," is not applicable; and that, under section 857; upon the analogy of the state practice, (Code, § 3307, subd. 2,) be should only receive such reasonable compensation for his trouble lUI the court or judge should allow. lReported by Edward G. Benediot, Esq., of the New Yorl&:bu.
v.49F.no.2-11
162
nDERAL
B.JmORTERivol. 49.
.SectiQQSO";,of,the Revised $tatutes relates only to the mode ·of recovering fees, not to the amount of fees chargeable. These are regulated by .. , The the paragraph above referred toCCWhenthe debt or claim in admiralty is settled by the parties without a sale commission of one per centum on the first $500 of the claim or decree, and,one-balf of one per centum on the excess: provided, that if the value b/3 leSs, t1)1!-P the claim,tbe c9mmlssion shall be allowed only on the appraised valuethereof"'.' I
J;;
is broad enough to include the pre!:1ent case. The claim was for the possession of the' vessel. Possession has been secured through the process of the court, the attachment,' and the possession and custody of the marshal, until delivered over, pursuant to the settlement. The claim was settled· by the parties without a sale. The claim is, indeed, not for a money demand, so that the case is not within thE.' very letter of the section, but it is plainly within its spirit. The claim, being for the possession of the vessel,v.vns, iu effect, a claim Jar the value of the vessel, not in money, but' in property. Mr. Justice BLATCHFORD in the (hse of Johnston,S Ben. 191,iuwhich mar,shal's cqmmissiolls were allowed upon the property of the bankrupts, which had been seized in proceedingsdnbankruptcy, aud,afterwards upon a settlement between the .parties, says: " ,"Thetheory'pf tbls allowanti'e is that the admiralty suit In rem, has attached the property. and holds it, and that then, with a sale of the property by the marshal, thecotitroversy is so dispOsed of-by the parties that the niarshalls called upon to give up possession oftl1eproperty, 80 that he loses the fees for selling it and .lor recei ving and paying over the money. In such a case he is allowed a which is intended as a compensation for his risk and responsibility; just as the poundage allowed on final process, and the percentage allowed on a sale of property in admiralty, are each of them a compensation for risk and responsibility, not merely in selling the property, but inholding posseasionof iL under process. Personally. he can liave no other compensation forkeeping.safely the property. For the expense of keeping it, npt exceeding $2,50 a day can bealJowed. only when paid to a keeper. ... ...... The commission is given by section 829 for the service of marshal In respect to the which bereJjnquishes. in taking the risk and responsibility whlcb he takes in regard to it' while he holds it." It would be unjust to the that he should be required to answer for the responeibility of property fOf the benefit of the parties to the cause, and delivering it to them to settlement, without any compensation whatever. He is entitled to nothing for that responsibility, except under this clause, since, under the preceding aection' "for neceSliary expenses," he ,can recover. only what he pays to the k,eeper.Thesum allowed on settlement is leEts than half that allowed on· sale by the following clause. The observations quoted from Mr. J usti.Qe BL.\TCIl,i'9RD aeem tome to. be decisive, and the amount taxed in accordance therewith should be allowed, and the taxation affirmed.
'fb
ASPOTOGAN. .
163
Tui WILLIS
ASPOTOGAN. 1 THE ASPOTOGAN.
V.
(District Court, E. D. Penn811wanw. January 5, 1892.) SHIPPING-LIABILITY FOR PERSONAL IN'.t"ilIEs-SB..b rEN UNLOADING CARGO.
Libelant, a seaman engaged in unloading wood from a vessel, was hurt by the fall of a tier of wood, caused by the mate's withdrawal of a cleat. The removal of the cleat was necessary in order to unload the vel\sw, and. was effected in the ordinary and proper manner, and 'after re'peated warnings, which were beeded by all the men at work except the libelant. Held, that no negligence could be imputed to the mate, as he in believio&, that libelant would he,ad the warninl{B.
In Admiralty. Libel by George Willis, formerly a seaman on board the bark Aspotogan, against said bark, to recover damages for personal injuries sustained while unloading cargo. Libel dismissed. . John F. Lewis and Oharle8 Gibbons, for libelant. Alfred Driver and J. Warr81l Coulston, for respondent. BUTLER, District Judge. The libelant, a seaman on board the bark Aspotogau, was injured while assisting to unload a cargo of lumber, which she carried to Rio de Janeiro, and sued for damages-charging his injury to .careless and wrongful conduct of the mate, as follows: "Libelant was working between decks, and was running the planks out of the bark through the port bow, onto lighters. A large tier of planks was piled up along the port side of the vessel as they had been loaded, and were held in position by cleats of wood which had been driven in between the planks and the be<tIDs of the vessel. The mate of the vessel was supelintending the removal, and while libelant was busily engaged in counting his planks, the mate, Without a worej of warning, knocked away one of the cleats Wllich so beld up the said tll'r of planks, and in consequence of the loss of this support, the tier ot planks fell down and burled the libelant under their weight, in consequence of WhICh his left leg was broken and other serious injury sustained, .. .. .. without any negligence on his part whatever."
The answer denies the imputed negligence and all liability for the injury. The mate was superiutending and assisting; and several other were engaged in the work of the lumber, as the libelant was. He alone, however, was injured. The master was on board. The testimony of the libelant, upon which alone his case rests, is contradicted by that produced by the respondent. A careful examination has satisfied me that the charge of negligence is not sustained. What the mate did was proper and usual under the circumstanceS. It was necessary to remove the cleats and it was customary to ·do it as he did. The testimonyseems to leave no room for doubt that he gave ample and repeated warning that he was about to do it, which the other workmen heard and obeyed. The mate was justified in believing the libelant would also heed it. Why he did not is explained by his statement immediately J8eported by Mark Wilks Collet, Esq., ot the Philadelphia bar.