volvO.

Dlile ,before ta,<;k., , circumstances of the The-evidence on the is that the:pqm,inK in stays by the King was im,and her helm was pU,t hard up. and her mllinilheet let go, in the hope of causing her whichw8$ the only possible way of lessening the blow, and though the off,sqmewpat, yet ,(bere was nO,t time or room to go clear. I am satisfied t,hisjBl!o of what and that the claim of the King that there was sufficient room,is wrong. The King further claims that she was then getting into shoal water, and was obliged to go about for her own safety. This belief of her master was undoubtedly the reason of his going about when he did, but he was mistaken. There was ample room for her to proceed much further towards the shore without-danger. Her master lacked in experience and was unacquainted with the navigation at this po,int, and this accounts for the disaster. The men onithe 'Lymburner 'were lamiliar with the locality, that the, Ki,ng would run out her course. and had the right to The change by the latter was sudden and unexpected, and was without is dismif'sed with and excuse. The libel is to be a deuree tor the liuelants. ·

h!¥i

a

G.

TaE

MOTT.

LAURA B.

THE LENA.' THE

HowAriD SMITH.

DltMARIS 1t;' THE GENERAL

G.

?tIOTT

et al.

(O!rtmlt Court Qf".4ppellls,

.," ','I'

May 24, 1899.)

, Two'steam the L.aild,the M., each wIth. a tow, approached each othel'nearly head on, by rliglil.:tn the Delaware river, and each disllovered the approach of the otlier When ab91ltn mile apart. , l::Jlgnals of Qne whistle were eXllhanged when the vessels were a.ho,lt one-half a,mile apart, and both ported their helms, The court ,', ffound, On ,conilleting evidence. that the M.was on the proper side of the channel, ,COUld not gone further inshore, ow;ing to the presence of anchored i , the L. either had gone too far towards, the sDore before portlDg her . helm, 01' thatshe'l1:id' not port it sUflklently.-lind hence heLd that for the collision the two tows ,the L. was faUlt.,

BTUB qP CHASNEL.

:,Appeal frorq ,the District 90urt of the United States for the Eastern District of Pt'nnaylvnnia. , . ;, ,In Admiralty. Charles of the tug Laura B., of the barge: ;Ltlpa WlUpel',cargo, against the tug Gtluera! G.

'188
theschoonet Smith,' for collision. .D.ecree below' dismissing the libel. Affirmed.' I ."Edward F. Pugh and Hrmry FLO/rulers., for appellant.. .! John F.Lewis, for the GeneralG. Mott. , Aljred.Drivtfl', for the Howard Smith· . Before A<lUESON, Circuit Judge, and WALES and GREEN, District
I

, WALF:S,District Judge. 'At'about 2 o'clock on the mOnling of July 27, 1889, the tug Laura. B. with the barge Lena, lashed to her port side, and. the bllrgeMay, lasbed to her starboard Elide, both barges being heavily loaded, was going down. the Delaware river, and when abreast of the Greenwich piers, on the.westertkside of the river, the lights of a tug with a tow astern were seen nearly ahead, at the distance of about a mile, which lights proved to be upon the tug General G. Mott, having in tolf' the schooner Howard Smith, astern by a hawser. The night was cloudy, with occasional rain, but lights were easily seen. The tide was high water slack, turning to ebb. The chanoN. at this point is from 300 to ,500 yards wide. The tugs discovered each other at the same time, each 4Q.ving the other on its port bow; the Laura B. running nearly &<luth by west, and cotlvergingon the Mott's course, which was northeast by north. The Mott was nearly opposite the Gloucester ferry, aodon the starboard or eastern side of the channel. A little astern, and on the port quarter of the Laura Bo" the ferryboat Peerless was coming down the river; and a short distance ahead of, and on the starboard bow of, the Mott, the ferryboat Law was going up the river. On the eastern side ofthechannel, a little above the ferry, were the regulation anchorage grounds, where two steamers were lying at anchor, and beginning to swing around with the tide. The specific allegations of the libel are that the Laura B. was heading directly down the river, and that the Mott, with her tow, was heatHng up the river, a little to the eastward; that when the tugs were about a haIfa mile apart the red light alone of.the Mott was visible from the Laura B., about two or three points off,the port bow ofthe latter; that at this time, the Mott blew one whistle to indicate that she intended to go to the eastward, and that the Laura B. replied, with a like signal, that she would direct her course to the westward, at the same time porting her Wheel; that both vessels kept on,and that the Laura B. had changed h.er COlurse about two points to the westward, when the Mott blew two> whiJltles, indicating that she was going to the westward, and immediately changed her course in that direction; that the vessels were then quite to each other; that, B8 soon as the libelant saw this lQovement of the he blew three short blasts, and rang the bell for the engineer to gofuU speed. astern; that by this time the person inflharge of the Mott saw his error, ported his wheel, and endeavored. to go to the eastward again; that this movement was unsuccessful, for, although the Mott herself escaped striking the Laura B. or her tow by suddenly to the starboard, the schooner Smith, coming on at full speed, struck the barge Lena on the starboard side, near the bow, tearing her loose from the Laura B·· breaking in her side. and sinking her.

FEDERAL BEPOR'l:&R,

vol. 50.

iscotiflicting, but the weight of the evidenCe contradiets the allegations of the libel. There may have been, and doubtless was, some confusion ,ofsignals, arising from the fact that the Mott had signaled to each of the ferryboats before signaling: to the Laura. B., but it does not appear that the Laura B. was misled by them, because, after wheel in response to the one whistle from the Mott, she made no further change in her course. According to the libelant's statemelJ,Uhe tugs were not more than half a mile apart when the Mott signaled that she was goiQg to( the eastward. The vessels were then approaching each other,at me rate of15 miles an hour, and it is difficult tO,conceive what motive the master of the Mott could have had in attet:nptipgj to make the erratio movements described in the libel, to say nothingiof the improbability of such, movements having been actually made within the time and, the distance that intervened between the sigPlilandthe moment of thecollisioR. The impracticability of a tug with in tow, at the eRdara hawser 60 fathoms in length, making tbezigzag movements attributed.to the Mott in such a short period of time,renders··this ..chatge more difficult of belief. Even if the Mott c0Uld h(llve tn.rned her own bow so quickly and often, it does not foHow that she could havEl,pulled:,her'tow about with equal facility. The Matt was <>n thlitsideof. thech.annel where she had the right to be, and the effort made On behalf of the Laura B. to show that the latter was on the westem side of the channel is an admission that it was her duty to have kept her course fi)'n that side,·whereas the faot that the Lena sank on the east side, of the.mid-channel demonstrates that, if the Laura B. had ported her helm sufficiently arid promptly, she would have gone further to the . westward"andhave avoided the collision. Witnesses on board of the Mott, and :oto.ers whoweteon the Peerlesaor on the Law, testified that the Mott continued her course as far to the eastward as was practically safe, under the circumstances, and that she did not make the tortuous movements charged by the libelant. The libelant admits that, if the Mott had kept her original course, there would have been no collision; and the failure to prove that she deviated. from it leaves the cause of the collision unexplained, except on the theory that the Laura B. had gone too far to the 'eastward before porting her helm, or that she did not port it . The Matt could not have gone further to the eastward without crowding against the anchored I:lteamers, nor could she have gone around them without endangering her tow. There was ample room for Laura 13. to have gone to the westward, and there was no necessity for or obligation on the part of the Mott to go in that direction. The ease .against the schooner ·was not insisted on, as she followed in the wake of her tug. The deCree of the district court, dismissing the libel. is therefore affirmed.

JJUDLEY E. JONEB 00. t1.

DlPROVED 0, XAOlI. X.uroJ"G 00.

785

DUDLEY'

E.Jolml Co. et tll.

(Ctrcuit'Court

fl. MUNGER IMPROVED COTTON ltUCII. MANW'G Co.

oJ .Appeala, Ii'fJ'thOWouit. Ha780, 1m)
No. 6.

APPBA.LA:BLB ORDBRS-INTBRLOCUTORyDBCRBB-!NlUNCl'ION IN PA.TBNT OA.SBI.

A decree sustaining the validity of a patent, directing a perpetual injunction against its infringement, and referring the cause to a master to take an account, il an appealable interlocutor, 'decree, within section 7 of the act of Maroh 8, 18111; and on appeal therefrom, the cause, is submitted on the merits without. objectJon,apd a decree is rendered, it is too late for the appellee to que.tion court's jurisdiction bv a motion for

On rehearing. For former report, see 49 Fed. Rep. 61. BeforeP:ARDEE, Circuit Judge, and LocKE and BRUCE, District Judges. PARDEE, Circuit Judge., This cause is,again brought before the court on an applioation fora rehellriog and upon a motion to vacate all proceedings, ha,d in this cause in this court,' and dismiss the appeal herei. for want of jurisdiction, on the ground that the decree of the court below, sought to be reviewed in this case was neither a final decree, from whiohan aplJeal would lie to this court under the sixth section of the judicially 'act, of 1891, nor yet such an interlocutory order or decree that an appeal would lie under the seventh section of the said act. The case:washeard in this court upon the merits without objection on the part of the appellee, and without a critical examination on the part of me court: as to the character of the decree appealed from. In fact, appellee in'bis brief expressly states: , "It is tbe desire'of tbe appellee that this cause be beard upon its merits,

and we do not, therefore. Wish to take advantage of any irregularities which may have occurred in l:!I'il)ging the case up, or of any omission to assign errors. · .· · As tbe case stands, it must be substantially treated as a rehearing at the circuit, and fOl; this reason the argument is more diffusive than it otherwise would be, as it involves a re-presentation of the entire case, without any direction as to special points or findings by the court below."

An examination of the decree rendered by the court below shows that, while it adjudges the vlllidity of the patent sued on and directs an injunction termed" perpetual" against the defendants as infringers, it refers the matter to a. master for taking an account. . It is well settled that such a decree is nota final decree from which an appeal could be taken, or of "hich this court would have jurisdiction, unde:r the sixth section of the judiciary act of 1891. IrQn 0>. v. Martin, 132 U. S. 91, 10 Sup. Ct. Rep. 32, nnd cases there cited. We are, however, of the opinion that it is an interlocutory decree granting an injunction, from which an appeal would lie under the seventh section of the said jud iciary act. . An interlocutbry decree is: "Whentbe consideration of the particular questlonto be determfneil, or the further consideration 'of tbe cause generally, il reserved till a future
hearing." ·l)al1ie11. Ch. Pro (5th Ed.) 986.

v.50F.no.lO-50