The Canima. THE CANIMA. A canal-boat was moored at the north side of pier 48, North river, with her bow projecting beyond its end. That pier did not extend into the river as far, by over 50 feet, as did pier 47, next south of it. A steamship, coming from the south, to land at the south side of pier 47, by backing in, collided with the bow of the canal-boat, which was in plain sight: Held, that the steamship was wholly in fault, and the canal-boat not in fault, although her captain was absent and no one was in charge of her. (Before WALLACE, J., Southern District of New York, March 6th, 1885.) THIS was a libel in rem, in Admiralty, filed in the District Court, to recover damages for a collision. After a decree in that Court for the libellants, the claimants appealed. Josiah Hyland, for the libellants. Wilhelmus Mynderse, for the claimants. WALLACE, J. The canal-boat Redfield, loaded with a cargo of coal, was lying moored on the north side of pier 48, North river, preparatory to discharging her cargo, when she was struck by the steamship Canima, and sank almost immediately. The Canima had come up the river intending to make a landing on the south side of pier 47, by backing into her berth. As she got opposite pier 46, her captain and first officer saw the Redfield with her bow projecting ten or fifteen feet into the river beyond the end of her pier. As the Canima came up to pier 47, she took a line from that pier to her starboard bow, but kept on with the flood tide until her bow was opposite or beyond the north line of pier 48, when her bow was drawn in by the line and her stern carried out into the river by the tide, and thus she swung in towards pier 48 until her starboard bow struck the starboard bow of the Redfield. As pier 48 did not extend into the river by over fifty The Canima. feet the distance of the other piers, and the place where the Redfield lay was 250 feet to the north from the intended berth of the Canima, and as the Canima saw the Redfield when she was over 500 feet away, there was no necessity and no excuse for the Canima's collision with the Redfield. The learned District Judge before whom the case was tried in the Court below was of the opinion that the Canima might and should have avoided the Redfield altogether, although the latter projected beyond the pier; and this conclusion is fully warranted by the proofs. But he was also of opinion that the Redfield was in fault because her bow projected, and upon this ground apportioned the loss. He also placed some emphasis, in his opinion, upon the circumstance that there was no one in charge of the Redfield at the time of the collision. (17 Fed. Rep., 271.) If the location of the Redfield had been such as to obstruct the Canima's access to her pier, or in any way to complicate her proper movements, the Redfield would have been culpable. But she owed no duty to the Canima or to any vessel intending to land at the south side of pier 47. She was not in the way of the Canima if the latter had not gone to a place where she had no right to go. If the Redfield had been wholly inside the pier, and obscured from the view of those in charge of the Canima, the conduct of the latter would have been more excusable than it was. And they can with no more justice complain of her location than they could if she had been wholly inside the pier. It might as well be urged that a sailing vessel holding her proper course but run down by a steamer should be deemed in fault for want of a lookout. (The Fannie, 11 Wall., 238, 243.) If there was fault on the part of the Redfield, it did not contribute to the collision. That was due solely to the inexcusable negligence of the Canima. The Redfield was not even in the way of passing vessels, because the pier was so much shorter than the adjacent piers. The captain of the Redfield was under no obligation to anticipate such an event as took place. He was temporarily The New York Bung and Bushing Company v. Doelger. absent, but if he had been present he could not have rendered any material assistance in the emergency. The libellant is entitled to a decree for $1,000, the sum at which his damages are adjusted by stipulation, as of the date of June 23d, 1884, with interest from that date, with costs of the District Court and of this appeal. THE NEW YORK BUNG AND BUSHING COMPANY vs. PETER E. DOELGER. IN EQUITY. Re-issued letters patent No. 10,368, granted to the New York Bung and Bushing Company, August 25th, 1883, for an improvement in bungs and bushings, (the original patent, No. 141,473, having been granted to Samuel R. Thompson, August 5th, 1873, for an improvement in bushings for faucet-holes, and re-issued as No. 8,483 to McKean, Jackson and Brown, November 12th, 1878,) are invalid. The first re-issue having been declared invalid, the second was taken, substantially like the original patent in form, except that the bushing was limited to wood, the first claim of the second re-issue, and the second of the original patent, being alike, except that the word "wooden" was not in the latter: "The combination of a wooden bushing, a, and casing, b, constructed and arranged as described, and for the purposes specified." A prior patent described a bung and bushing like Thompson's, without designating any material: Held, that it was no invention to make such prior device of wood. Held, also, that the defendant did not infringe. (Before CoXE, J., Southern District of New York, March 7th, 1885.) COXE, J. This is an equity action for infringement, founded upon re-issued letters patent, No. 10,368, granted to the complainant, August 25th, 1883, for an improvement in bungs and bushings. The original patent, No. 141,473, was granted to Samuel R. Thompson, August 5th, 1873, for an improvement in bushings for faucet-holes. It was first re The New York Bung and Bushing Company v. Doelger. issued, No. 8,483, to McKean, Jackson and Brown, November 12th, 1878. This re-issue having been pronounced invalid, as containing an unlawfully expanded claim, the patent was again re-issued, in form substantially like the original, except that the inventor limits the construction of the bushing to wood. This second re-issue is the one in controversy. The inventor declares: "The present invention relates to certain new and useful improvements in bushings for faucetholes of barrels, &c., having for their principal object the production of a simple, economical and effective bushing, that will admit of the easy adjustment and withdrawal of the faucet without injury to the barrel, and that may be readily and cheaply replaced when worn. My improvements consist, mainly, of a bushing of wood, &c., constructed and arranged, as will be hereinafter more fully described, so as to receive and allow of the yielding either way of a faucet, which, when slightly struck, is readily withdrawn from the bushing without detriment to the barrel. In my original specification I mentioned the use of other material than wood for the bushing a. This I desire now to disclaim, and confine my invention to wood alone, in combination with the protecting casing b, or to the casing, a, of wood alone, when made with the interior bevels." *** The first claim of the re-issue, the second of the original, is the only one in controversy, and is in these words: "The combination of a wooden bushing, a, and casing, b, constructed and arranged as described, and for the purposes specified." In the original the word "wooden" is omitted. The defences are want of novelty and invention, non-infringement, and invalidity of the re-issue as a re-issue. As bearing upon the first of these defences the defendant offered in evidence letters patent No. 107,473, granted to Vincent Fountain, Jr., September 20th, 1870, for an improvement in bungs. The description contains these words: "The nature of my invention consists in the construction of a bung, which has an opening through its centre applicable for receiving not only a faucet for drawing off the contents The New York Bung and Bushing Company v. Doelger. of a barrel, but also for a stopper, which is inserted from the inside, as will be hereafter more fully described. * * * F is a bush, of the ordinary construction. D is a bung, which has an opening extending through its centre, beveled from each side toward the line E." The claim is as follows: "A bung, having an opening through its centre, one side of which is applicable for receiving a cork or stopper, G, and the other for receiving a faucet, in the manner and for the purposes set forth." Here is a perfect description, in general terms at least, of the complainant's device, and, if the word "wooden" were inserted before the word "bung," it can hardly be doubted that it would amount to a complete anticipation. A skilled mechanic, reading such a description, would make precisely what Thompson made. The similarity will appear most clearly by placing the two drawings in juxtaposition: The same letters have been used to indicate corresponding parts, on each of these drawings. D represents the double-beveled bung, and F the bushing. In Fountain's specification the material of neither is designated. That this patent is an anticipation cannot be successfully maintained. But it seems equally clear, that, in connection with the other proof, it defeats complainant's patent for want of invention. Thus, it must be conceded, that after Fountain. |