MANISTEE LUMBER

00.

f1_ CITY OJ' CHICAGO.

87

of must be held an infringementjand, second, when in combination with such process a machine or tool is used whereby the use of such contractile power is rendered pGssible and feasible, such machine or tool must likewise be held to be an infringement, although the enabling machine or tool may be simpler or better or widely different in construction or form from the mechanism described in the patent,' provided that the result of the combination of process and machine is the performance of the same function in the same way substantially' as performed by' the original invention. When Hyatt obtains such measure of protection, he obtains all that he is entitled to. Any process for developing and making use of the contractile power of celluloid for the purpose of affixing it in mass to a, base, or any machine or tool making possible such use of such force for such purpose, constitute infringements. Further than that, I do not think the broadest, the most liberal, construction, can stretch and strain the claims of this patent within the boundaries of principle. It follows that the defendants'· combination of process and mechanism does not encroach upon, nor is it an infringement of, the complainant's invention. Such combination lacks entirely the use, on the one hand, of the contractile power of celluloid in any degree, and, upon the other, is wanting in any machine or tool which enables such use. The Curtis patent, under which the defendants manufacture sheets of celluloid, calls for the employment of a force or power in holding to the supporting base the plastic mass in form for cutting, which has been perfectly well known for hundreds of years, and the use of which was free to everYOIlil who chose to invoke its aid, namely, "atmospheric pressure." To obtain such aid, the defendants use a supporting base differing in every essential feature from ,that described in the claim of the complainant. There is no attempt on the part of the defendants to use or appropriate, in any degree, what was aptly termed "the essence of the invention of the patent," as stated in the first claim of the complainant's patent: "A slab of material secured upon a surface through the operation of the power it exerts in shrinkage, acting upon two or more elevations or depressionson or in the surface on which the slab is placed." Failing to show such use, the complainant's case must fall. The bill is dismissed.

MANISTEE LUMBER Co. f'. CITY OF CHICAGO
(Df.8Wlct OOUrt, N. D. nUnoiB.

et ale

November 8, 1890.)

1.

COLLISION-BETWEEN

Tow AND DRAW-BBIDGE-LIABILITY OF TuG. Libelant's schooner was proceding up the Chicago river in tow of a tUg at a safe speed. The tug in due time whistled for the opening of a bridge, aud the bridge tender rang the bell to indicate that it would be opened. On trying to swing the draw, he 'diacovered that tha lOck was out 'of order, and, instead of hoisting' the customarysignal to show that h!'l not swing the draw, he stopped to in'Vestjgate the Condition of the lock, and dill not signal the tug until it was too nl'ar tbebridge to be able to stop the schoonel'"thetug hawng beenapproaohing at thesaIDe speedt

88

FEDERAL REPORTER,

vol. 44.

as there was yet time to swing the draw, had it been in good order, when the tender his inability to do so. The tug, oasting off tile schooner, passed under the bridge, while the schooner collided with it, and injured her masts. There was evidence that the city superintendent of bridges had notice of the defective condition of.the lock. Helit, that the tug was not in fault for not slacking its speed as soon as it discovered thllt the draw was not swinging, and the city is solely liable for the collision.
SAME-SIGNALS TO OPEN

Though the ringing of the bell on the bridges across the Chicago river, just before the draw is swung, is intended as a signal to persons on the street and bridge, it may be treated by an approaching vessel as an answer to her signal to open the bridge, and she is not in fault in proceedinlt on the strength of it, although the draw may not be swung immediately.

In Admiralty. H. W. Wolseley, for libelant. M. W.Robins.on and Schuyler & Kremer, for respondents.
BLODGETT, J. The libelant, as the owner of the schooner City of Toledo, brings this suit to recover damages which the schooner sustained by a collision with the Clark-Street bridge, across the Chicago river, on the evening of Sunday, the 21st day of September, 1889, the schooner at the time of such collision being in tow of the tug Satisfaction, owned by the respondent the Vessel Owners Towing Company. The proof shows that the schooner was taken in tow at the entrance to Chicago harbor by the tug Satisfaction, and that the tug, with the schooner in tow, was proceeding up Chicago river at a safe rate of speed, and, soon after passing through the draw of State-Street bridge, whistled for the opening 6f Clark-Street bridge, the Dearborn-Street bridge being open, and no question is made but what this signal was given in ample time to have enabled the bridge to be opened, if in good repair. The signal of the tug was answered by the ringing of the bell upon the bridge, indicating that the bridge was about to open, and the tug proceeded with her tow, without materially slackening her speed. until near the east end of the protection of the Clark-Street bridge, when the bridge tender, who had made efforts to open the bridge, called out to the tug that he was unable to lipen it, whereupon the tug cast herself loose from the schooner and passed under the bridge, and the schooner came in collision with the bridge, breaking her foremast, and injuring her mainmast and standing rigging. The proof shows that the lock of the bridge was out of order, so that, when the attempt was' made to swing the bridge, they were unable to unlock it, and hence were unable to swing it in response to the signal of the tug. The proof also shows that if, for any reason, the bridge tender is unable to open the bridge, or does riot intend to open it, on a signal to do so from an approaching craft, a red ball should be displayed in the day-time, and a red light in the night-time. No such signal was displayed on this occaf;ion until just an instant before the collision, and about the time the bridge tender hailed the tug and said he could not open the bridge, when a red light was hoisted on a pole on the west side of the bridge, and in such .position as not to be visible to those in charge of the tug. The proof also shows that, on receiving the signal from the tug to open the bridge, the bridge

MANIS'fEE LUMBER CO. V. CITY 01<' CHICAGO.

89

rung his bell, and attempted to unlock the bridge preparatory to opening it, when he found the lock out of order. He had then ample time to have run up the red light as a signal to the tug to stop, but, instead of doing so, he waited to ascertain the difficulty with the lock, and took so much time to investigate the condition of the lock that the tug with the tow was close upon the bridge before he gave up his efforts to unlock and swing the bridge. Here was the fatal mistake of the bridge tender which brought about the collision. His plain duty was to have hoisted his red light, without an instant's delay, as soon as he found the lock would not work. instead of wasting time in futile attempts to open it, or in trying to find out why the lock would not work. I conclude from the proof that the bridge tender became aware that the lock was out of order when the tug was passing the Dearborn-Street draw, and, if his red light had been promptly displayed at that time, the tug would have had no difficulty in stopping her tow before she reached the Clark-Street bridge, while it is manifest from the proof that there was not time to have stopped the schooner after those in charge of the tug were told by the bridge tender that he could not swing the bridge: In fact, any attempt by the tug to stop the schooner after the hail would only. have endangered the tug. The proof also shows that this lock had heen for some time out of repair before the collision in. question, and that the city's superintendent of bridges had notice that it was in bad order. Under these circumstances, I can see no reason why the tug was not justified in proceeding with her tow up to the time the call was made from the bridge notifying them that the bridge could not be swung. The bridge in question is operated by steam-power, as the proof shows, and swings very rapidly, so that, if the bridge had been unlocked, and the steam-power applied at the time when the bridge tender called out to the tug that he could not swing the bridge, it could have been swung with sufficient rapidity to have been got out of the way of the schooner, and, in the absence of any signal that the bridge would not be swung, the tugmen are excusable for not stopping. I cannot, therefore, from the proof, affix any Wame to those in charge of the tug, and certainly those in charge of the schooner were in no way blameworthy, because . the schooner was entirely in the hands of the tugmen. The proof. therefore, satisfies me that the fault for the collision lies wholly with the em- ' ployes of the city. The fact that the lock was out of order, and was liable to fail to operate at any time, is brought home to the city by proof ()f the knowledge of the superintendent of the bad condition of the lock; while the failure of the bridge tender to give warning to the tug to stop as soon as he found the lock refused to work is clearly a fault attributable to the city. It is also urged, on the part of the city, that the ringing of the bell ()n the bridge, on a signal from a craft to open it, is not a response to the signal from such craft and a notice to the craft that the bridge will be ()pened, but is a mere warning to persons on the bridge that it is to be swung. Certainly there should and must be some responding signal to that given by the approaching craft for the op('Lling of the bridge, and

90

FEDERAl, REPORTER,

vol. 44.

the proof shows that the ringing of the bridge bell hus always been cepted by tugmen as an assurance that the bridge will be opened. And, while the ringing of the bridge bell is a signal to persons on the street to keep ofl', and for persons on the bridge to get off, it is also a sjgnal that the bridge will be opened; so that, as I have already said, the ringing of the bell was properly construed by those in charge of the tug as an indication that it would be opened. A decree will, therefore, be entered dismissinp; the libel as against the Vessel Owners Towing Company, and finding that the collision occurred solely by the fault and negligence of the city, and that the damages sustained by the schooner be paid by the city.

THE BAY OF NAPLES. l HALL

et ale

11. THE BAY OF NAPLES.

(.Df.Btrict OOUrt, E. D. New York.

November 19,1890.)

L

S.u.vAGB-FIRBIJ!f OIL CARGO.

I.

A vessel, loaded with case oil and ready for sea, caught fire about 12 o'clock at night, while lying anchored in the harbor of New York. A passing tug went to her assistance, at the same Mme signaling for more help. Her signals collected seven other tugs and a ferry-boat, all of the available boats in the vicinity, and lastly came the police-boat Patrol, which had been sent for by the first tug to arrive. All of these boats pumped water on the fire, and extinguished it at about 5 o'clock in the morning. B,ut 283 out of the 55,600 cases of oil were damaged. The laving to the owners of vessel and cargo, without cODsidering freight, was $81,400. There was no extraordinary labor or exposure or peril to life. HeW, that thesalvlng vessels should collectively recover $20,000 as salvage. At the outset of the fire moments being of the greatest importance, the salvage was divided among the tugs with reference to the time of their arrival at the scene of the fire, and also theircapacityfor pumping.

B.ulB-IMllIINENT PERIL-PROMPTNESS OF SALVORS.

'J.

B.ulE-FERRy-BOAT AS SALVOR.

When a ferry-boat abandons a regular trip to go to the aid of a vessel in distress, the peculiar. nature ot her employment is to be considered in determining the amount of her award.

In Admiralty. Suits by various tugs and a ferry-boat against the ship Bay of Naples 'and cargo, to recover compensation for salvage services. The different suits were consolidated on motion of claimants. Carpenter « Mosher, for the Moran, the Garlick, and the Pratt. Wing, Shoudy « Putnam, for the Leader, the Talisman, and the Indian. Peter S. Carter, for the Harvey W. Temple. McCarthy « Berier, for the John Sylvester. R. D. Benedict, for the Charm. Butler, Stillman « Hubbard, for claimants.
BENEDICT, J. On the night of September 2, 1889, while the ship Bay of Naples was lying in the harbor of New York, at anchor below Bedloe'B
I

Reported by Edward G. Benedict, Esq., of the New York bar.