of the patent. The defendants' braid certainly looks as if it had four ribs, and, if the testimony of the patentee can be relied upon, it, in fact, has four ribs. Mr. Schuck was asked on cross-examination the following questions: "Question. Will you take this exhibit [defendants' braid] and say how many ribs there are on that? Answer. There are four." On his redirect examination he emphasized his former answer as follows: "Q. In your answer to cross-question 99 you were asked to take defendants' braid and see how many ribs there are in it, and answered There are four,' what do you understand the question to refer to? A. I understood it referred to ribs. Q. What are ribs as you understand in the defendants' braid? 4. Those corners of the braid I called ribs; there are four ribs on that, two small and two large ones." After all this, the theory that the defendants' braid has but three ribs cannot be maintained. As the defendants do not infringe it is unnecessary to examine the other questions presented. The bill is dismissed. PEARSON V. THE ALSALFA. (District Court. D. South Carolina. December 14, 1890.) WARRANT OF ARREST-ISSUANCE ON SUNDAY. A warrant of arrest may issue in admiralty on Sunday, where a vessel has changed her day for sailing, and proposes to sail on that day, and a libelant for seaman's wages did not learn that his wages would not be paid in time to begin his case before that day. In Admiralty. C. B. Northrop, for libelant. Libelant moves for a SIMONTON, J. The libel is for seaman's wages. warrant of arrest, as the vessel is about to proceed to sea. The only question is, can such a warrant be issued on Sunday? The law of South Carolina forbids the service of civil process on Sunday. This regulation is purely municipal, and can control only the process in the state courts. If it can be construed to apply to process on the law side of the courts of the United States, under section 914, Rev. St., it cannot be made to apply to process out of the court of admiralty, which is expressly excepted from this section. The question now made is entirely There are no authorities in point, and very few bear on the question. Mr. Desty, in his little book on Shipping & Admiralty, § 181, says that Sunday is not recognized by the maritime law. Although the authorities he quotes do not bear him out in this broad statement, (The Richard Matt, 1 Biss. 440; Johnson v. The Cyane, 1 Sawy. 150,) it seems to have support. Sailors can be made to work on Sunday notwithstanding that a law of the port may forbid it. Ulary v. The Washington, new. Crabbe, 208. A vessel can leave a port on Sunday, although the law of the port may forbid travel on that day. GRIER, J., in Philadelphia, W. & B. R. Co. v. Philadelphia, etc., Tow-Boat Co., 23 How. 209. This court is always open for the redress of wrongs. Seamen specially are under its protection. In the present case the vessel has unexpectedly changed her day for sailing, and has anticipated it by proposing to sail to-day. The libelant did not learn that his wages would not be paid in time to begin his case before to-day. In this view of the case, and in the absence of authority to the contrary, let the warrant of arrest issue. THE SAPPHO.1 BROOKLYN WATER FRONT WAREHOUSE & DRY-DOCK Co. v. THE SAPPHO. KNUDSEN v. BROOKLYN WATER FRONT WAREHOUSE & DRY-DOCK Co. (District Court, E. D. New York. December 23, 1890.) NEGLIGENCE-DRY-DOCKS-IMPROPER DOcking. A dry-dock company applied an hydraulic jack under the keel of a vessel in its dry-dock, whereby the keel was split and the vessel injured. It appearing that the keel was sound and strong, and that the cause of the accident was the failure of the dry-dock company to take the ordinary precaution of placing a plank between the keel and the head of the jack, held, that the dry-dock company was liable for the damage. In Admiralty. Suit to recover for services in dry-docking vessel. Cross-suit for damages received by vessel while in dry-dock. Peter S. Carter, for the Brooklyn Water Front Warehouse & Dry-Dock Company. North, Ward & Wagstaff, for the Sappho. BENEDICT, J. These are cross-libels. The action against the bark is to recover the sum of $415.50 for hauling the bark out on the libelant's dock, shifting the blocks, etc. The cross-libel is filed by the owner of the bark to recover for injuries alleged to have been done to the vessel while on the dock by the negligence and want of skill on the part of the dry-dock company. The dry-dock was made in sections of about 25 feet in length into which the water was allowed to flow to depress them, and when depressed the vessel was floated over them and raised by them by pumping the water out of the sections. Upon these sections blocks were placed at intervals upon which the keel of the vessel rested. When a vessel is to be coppered-as this bark was-while on the dock, the portion of the bottom where the vessel rests upon a block is covered with copper either by placing a sheet of copper on top of the block before the vessel is raised, or by shifting the block under the vessel after she is raised. The block is shifted by placing an hydraulic jack under the keel of the vessel and resting on the edge of one of the sections of the dock, so that by 1Reported by Edward G. Benedict, Esq., of the New York bar. pumping the jack the edge of that section is forced down into the water, the whole section being depressed enough to remove the pressure on the block, and then the block can be shifted. In this case when it came time to shift the block at the bow of the bark the hydraulic jack was placed under the keel a few inches from its end. The keel was pitch pine 14 or 15 inches in width. The head of the cap of the hydraulic jack was about 6 inches in diameter. When the power was applied by the jack to depress the section the keel split, the bolts through the dovetail plates pulled out, and the vessel was injured to an extent that made it necessary to remove 16 feet of the keel and replace it with new, involving a detention of some three days longer upon the dock, and other damages. On the part of the bark the contention is that the keel split because the dock owner attempted to apply the power of the hydraulic pump directly to the keel at a point close to the end of the timber, and without placing a plank between the jack and the keel to distribute the pressure. On the part of the dry-dock company it is contended that the damage resulted from a defect in the keel, a bad heart shake in the timber, which made the keel unsound. The weight of the evidence is that the keel was of pitch pine; that pitch pine is a wood commonly used for this purpose, and that while there was a heart shake, as is usually the case in this kind of timber, the keel was sound and strong, able to endure the pressure required to shift the block if distributed by means of a plank between the jack and the keel. Next, it is contended on the part of the dry-dock that it was no negligence on the part of the dock to omit to use a plank to distribute the pressure. But the evidence shows that it is an ordinary precaution adopted under similar circumstances to place between the cap of the jack and the keel a bit of plank by which the pressure is distributed. In this case such a precaution was the more necessary because in ships constructed like the libelant's the stem runs down flush with the bottom of the keel, and the end of the keel abuts up against the aft side of the stem, where it was held in position by dead wood inside; dovetailed plates of heavy metal being bolted on the outside, by which the keel is fastened to the stem. Common prudence required the use of a plank in such a case. Next, it is contended in behalf of the dock that the plank was omitted in this case because the block was not high enough, to permit a plank to be inserted between the jack and the keel. But the proof is that the blocks were 20 inches high and the jack only 18. This would have enabled a plank to have been used, and furthermore, if the blocks were too low it was the fault of the dock owner, who knew that the block had to be shifted after the vessel was raised, and whose duty it was to provide proper blocks. The libelant in the second case must have a decree for the amount of the damages sustained by the splitting of the keel, and a reference to ascertain the amount. The libelant in the first case, on payment of the damages, will be entitled to a decree for the amount of his bill. THE CITY OF ALEXANDRIA. (District Court, S. D. New York. December 20, 1890.) COLLISION-PRACTICE-DECREE. Where several libelants, having distinct damage interests, recover in a cause of collision, the decree may be in form for recovery by all of the aggregate sum, and directing a distribution to each of the sums respectively adjudicated to them. In Admiralty. Libel for damages by collision. George A. Black, for libelant. Robert B. Benedict, for claimant. BROWN, J. In this cause of collision the damages were divided, (31 Fed. Rep. 427,) and, a number of seamen and others having been afterwards joined as co-libelants to recover damages for their individual losses, the libelants have presented for settlement a decree which is, in effect, a several decree in favor of each individual interest. The claimants object thereto, and ask that the decree be a single decree, upon which a single execution would issue, with directions for distribution by the clerk to the several libelants of the amounts awarded to them, respectively. The difference in the form of the decree has respect to its supposed bearing upon the right to appeal, and upon a stay of proceedings as respects the various individual interests. It is not necessary to determine whether any difference might result in that respect. The precise question here raised seems to have been presented to Judge WOODRUFF, as circuit judge of this circuit, and to have been determined by him in favor of the claimants, in the case of Avery v. The Wanata; and, as the question was deliberately considered by him, his decision should be followed here. See The Connemara, 103 U. S. 754; Ex parte Baltimore, etc., R. Co., 106 U. S. 5, 1 Sup. Ct. Rep. 35; The Propeller Bur 1 Per WOODRUFF, C. J. The claimants ask that the decree herein may award a gross sum to the libelants, and execution therefor; the same to be distributed by the clerk to the several libelants, according to the amounts of their several loss or damage caused by the collision, for which the schooner is condemned. The libelants, on the other hand, ask that the decree be in substance severed decrees; that is to say, that it condemn the schooner for each several amount of loss, and award execution to each libelant to collect the amount of his separate loss. The materiality of these conflicting claims is supposed to arise from the apprehension of an appeal by the libelants to the supreme court, and a suggestion that, if the decree were in the form last mentioned, no appeal would lie from those parts of the decree which awarded to either or any of the libelants a sum less than $2,000; and that the supreme court would not have jurisdiction to reverse any part except that which awards more than $2,000 to one of the libelants. Whether the form proposed by the claimants of decreeing the payment of a gross sum, to be distributed among the libelants, will affect the question of the jurisdiction of the supreme court to reverse the whole decree if found erroneous, is not for this court to decide. If the apparent injustice of compelling the claimants to pay a part of the loss when the decision of the supreme court, as the case may be, declares that the claimants or their schooner have been wrongfully condemned, and ought not to be required to pay anything, can be avoided without violating any important rule of practice or form, then surely such avoidance would be matter for satisfaction rather than regret. Such apparent injustice was strongly illustrated in the case of Rich v. Lambert, 12 How. 347, and perhaps still more strikingly in the cases of The Mary Eveline and Petty v. Merrill, 3 Ben. 438, 16 Wall. 338, 348. I therefore settle the decree in the form which the claimants have requested. lington, 137 U. S., 11 Sup. Ct. Rep. 138. The form of the decree will be in favor of the libelants for the gross amount awarded, with further directions that the said sum be distributed to the different named libelants in the amounts heretofore adjudicated to each. THE HOLLAND.' BALTIMORE & O. R. R. Co. et al. v. THE HOLLAND. (District Court, E. D. New York. December 19, 1890.) SALVAGE-FIRE ON PIER-TOWING ENDANGERED VESSEL-AWARD. As the steam-ship Holland was lying at her pier, a sudden fire broke out on the side of the pier opposite to where the steamer lay. The officer in charge of the steam-ship requested a tug, lying near, to tow the steam-ship away, and shortly aft erwards another tug was signaled by the steam-ship and took another line, but, getting into such a position as to be able to bring but little power to bear, a third tug came to her assistance. Under power of these three tugs, and with two additional tugs keeping her off from the pier, the steam-ship was moved out of danger. The city fire department, with twelve engines and two fire boats, came to the fire soon after it started. The steamer could have been warped across the slip by her donkey engines, which had steam up. The service of the tugs lasted some two hours. With her cargo the steamer was worth $600,000. Held, that the service was a salvage service, in which the value of the property saved was great, but the peril moderate, and $4,500 was awarded to the tugs in proportion to their relative merits. In Admiralty. Consolidated suit to recover salvage. Hyland & Zabriskie, for the Howard Carroll. Wing, Shoudy & Putnam, for the John Fuller. Tracy, MacFarland, Boardman & Platt, for the A. C. Rose. Martin & Smith, for the Henry T. Sisson. Peter S. Carter, for the George L. Hammond. BENEDICT, J. This is a consolidated action in which the owners and crews of five steam-tugs seek to recover salvage for services rendered the steam-ship Holland on the 7th day of December, 1889. The Holland was a large steamer belonging to the National Steam-Ship Company which had just arrived from sea and been moored on the north side of her pier in the North river. She had no steam on. With her cargo on board she was concluded to be worth $600,000. About dinner time of the 7th day of December, 1889, fire broke out in the upper deck of the pier-house on the side of the pier opposite to that where the steamer lay. The fire was sudden and proved disastrous, five lives being lost, and the pier-shed for the most part destroyed. As soon as the fire broke out the officer in charge of the Holland determined to move her from the pier, and accordingly requested the tug Howard Carroll, then lying at the end of the same pier, to take a line from the steamer in order to Reported by Edward G. Benedict, Esq., of the New York bar. |