THE H. E. WILLARD;

387:·

intended for the construction o'f'flying targetS. did in fact contain ingtedients which, ''iYith a few.changes, have' made very snperiorflying targets, probablyas'succesSfnl 'and popular as any put upon the market. The compound described· in said patent has iufact- been so used in the manufacture of flying targets that now some 12,000',000 are made annually. 'fhis is the highest evidence of its usefulness! and -adaptation to this kind of manufacture. The public have accepted and used it as meeting a general want. I think, therefore, for the purposes of this motion, that we may accept the patent as embracing a novel and useful invention. I think the complainants' title to this patent is clearly established. But the defendant is in no position now to defend as to the question of validity. The defendant Damm, who is the promoter, principal officer, and active manager of the defendant corporatidn, was originally in the employ ofthe complainant. While sustaining such relations to it, he asserted the validity of the patent sued upon in this case, was an expert witness in this behalf, and demonstrated before this court, by actual process of manufacture, the utility of the invention, and in various ways so committed himself to the validity of this patent that I do not think he is in any position now to controvert it. There can be no question of the infringement. It is thoroughly established, and I think, under all the circumstances of the case, the complainants are entitled to a preliminary injunction, and a decree may be drawn accordingly.

THE

H. E.

WILLARD,

(Circuit Court, D. Maine. October 8, 1892.)

No. 42.

1.

MARITIMB LIENS-STATE STATUTBS.

2.

The lien given by Acts Me. 18&9, c. 287, toa part owner of a vesllel for debts contracted and advances made for certain purposes, is not maritime in its nature, and is therefore not enforceable through the admiralty jUrilldiction of the federal courts.

ADMIRALTy-JURISDICTION OIl' FEDERAL COURTS-STATE STATUTES.

While the federal courts sitting in admiralty may enforce, according to their own rules of procedure, a right created by a. state statute, which right is maritime in its nature, no subject which is not of a maritime nature can be brought within their jurisdiction by state legislation. . Matters of account between part owners of a vessel belong to a court of eqUity, not to a court of admiralty. The Larch, 8 Ware, 28, 34. and The CharW8Bemje, I» Hughes, 859, disapproved.

8.

SAME-ACCOUNTING BETWEEN PART OWNERS.

In Admiralty.

Before

B&nj. Thompson, for libelants.

George E. Bird, for respondents. GRAY, Circuit Justice, and
PUTNAM,

Circuit Judge.

388

FEDERA.L REPORTER, vol. 52.

GRAY, Circuit Justice. This was a libel in adxpiralty in rem for supplies furnished by the libelants to.the schooner H. E. Willard, a domestic vessel, in her home J>0rt, and for which they claimed a lien under the laws of the state of Maine and the admiralty and maritime jurisdiction of the United States. The claim and answer of two of the part owners of the vessel, intervening for the interest of themselves. and of their co-owners, alleged that the case was not within the admiralty and maritime jurisdiction of the court, because the libelants were the owners of three of the vessel, ,and neither by the laws of the state of Maine nor by the general maritime law was there any maritime lien in favor of one part owner of a vessel for supplies, advances, or disbursements made on her account; and, further, because the accounts between the part owners of this vessel had not for a long time been adjusted, and many of the owners were indebted to the vessel, and the vessel was indebted to the other owners; and therefore the libel was in truth and in fact one for an accounting between the part owners of a seagoing vessel. At a hearing upon libel and answer, the parties assuming. that the facts alleged in the answer were true, the district court dismissed the libel for want of jurisdiction. The libelants appealed to this court. Nothing is better settled than that matters of account between part owners, properly belong to a court, of .eqIlity, and are not within the general jui-isdiction in admiralty. The, admiralty has no jurisdiction of matters of account, even when relating to maritime affairs, except as incidental to a subject of which it has jurisdiction; and accounts between part owners are not made maritime affairs by the fact that the property owned in common is a seagoing vessel. The Orleans,l1 Pet. 175, 182; Grant'. Poillon, 20 How. 162; Wa?:.d v. Thompson, 22 How. 330; Kellumv. Fimerson. 2 Curt. 79; Id. 427; Davis v. Child, :2 Ware, (2d Ed.) 78, 82; Hall v. Hudson, 2 Spr. 65; Hazard v. Howland, Id. 68, 71; The Marengo, 1 Low. 5'2,56'. Such was always the law of England, until parliament, about 30 years agQ., expressly conferred on the court of admiralty jurisdiction to decid.e all questions arising between part owners of English ships, touching the ownership, posse8sion, employ! 'earnJngs, and. to settle all accounts between them in relation thereto. St. 24 Viet. c. 10, § 8; The .Apollo, 1 Hagg. Adm. 307, 313; The IdfJs, Brown. & L. 65; The Lady of the Lake, L. R. 3 Adm. & Ecc. 29. ! The only cases cited at the bar which tend to support this libel independently of statute are two decisions of district courts. In The Larch, a libel by one of two part owners for his disbursements again8t the share in the vessel was entertained by Judge WARE upon the grQ'4'pd:that the case deIllanded no examination of various and perplexed accounts, but only of the earnings of the vessel,. and the Payments made in the course of about one year. 3 Ware, 28, 34. But, as since observed by Judge LOWELL, that the account might be a very simple one is not the test of the jurisdiction; the subject-matter is not within the cognizance of the court. The Marengo, 1 Low. 52,56. And the decree of Judge WARE in The Larch was reversed in the circuit court by Mr.

THE H. E. WILLARD.

389

Justice CURTIS.· 2 Curt. 427. The decision of Judge HUGHES in The Charles Htmje, 5 Hughes, 359, rests on the overruled decision of Judge WARE. The real question in this case, therefore, is whether the jurisdiction in admiralty can be supported by reason of the statute of Maine of 1889, c. 287, which enacts that "all domestic vessels shall be subject to a lien to any part owner or other person to secure the payment of debts contracted and advances made for labor and materials necessary for their repair, provisions, stores, and other supplies necessary for their employment, and for the use of a wharf, dry dock, or marine railway: provided, that such lien shall in no event continue for a longer period than two years from the time when the debt was contracted or advances made." The admiralty jurisdiction is conferred on the courts of the United States by the constitution, and cannot be enlarged or restricted by the legislature of a state. When a right maritime in its nature has been created by the local law, the admiralty courts of the United States may doubtless enforce that right, according to their own rules of procedure. The General Smith, 4 Wheat. 438. 443; The Planter, 7 Pet. 324,341; The St. Lawrence, 1 Black, 522, 526,527; Ex parte McNiel, 13 Wall. 236; The Lottawanna, 21 Wall. 558, 575, 576, 580; The Corsair, 145 U. S. 335, 347, 12 Sup. Ct. Rep. 949. But no state legislation can bring within the jurisdiction of those courts a subject not maritime in its nature.The Orleans,11 Pet. 175, 184; The Jefferson, 20 How. 393; The Capitol, 22 How. 129; The St. Lawrence and The Lottawanna, ubi supra. The right given by the statute of Maine to a person furnishing supplies to a vessel in which he owns no sharemight be enforced in the admiralty courts of the United States, because such a contract is strictly a maritime contract, and nothing else. But the right and lien which the statute undertakes to give to a part owner is quite different in its nature. His claim for supplies furnished to a vessel owned by himself in common with others is not against the whole vessel, nor wholly against the other owners; for he himself owns part of the vessel, and is himself liable for a part of the claim, in proportion to his share in the common property, modified by the state of accounts between himself and his associates. In order to ascertain the amount of the claim for supplies which he is entitled to enforce against the vessel, an account must first be taken of the mutual affairs of all the part owners. The taking of the entire account is the primary and principal thing, to which the amount of his claim for supplies is sarily secondary and incidental. It was therefore rightly held by the district court that here was no independent or original cause of action, maritime in its nature, of which that court could take jurisdiction in admiralty, either by the general law or because of the local statute. Decree affirmed, without costs.

r

:,J<

THBWILLIAMBRAN1l'OOT tI. HAMILTOIfe

(

;

HAMILTON tI. ·THgWILLIAMBRANFOOT. Court

OJ AppealB, Fourth. Circuit. . October U, 1892.)
Nos. J2.19.

,

INlUIUBS-Dul!loTJVJil APPLIANCBIo

1.

.

A ship 1s liable in dame.gesto one of a' stevedore's who is injUred while un· cargo by the unexpected falling ofa stanchlOnj because of defects in its fas,tentugs, not observe.d .by hi.mand not apparent W the but which a proper b1.sp8ctioll by the ship's otlloerll would have disclosed. 48 Fea. Rep. 914, atIlrmed. cf the accident under slichcil'cumstances casts upon the ship the burden()f showing reasonable care in maintaining the in a safe condition.

8. 8AK&.-BURllBN OP PRooP-Rlls IPsA LOQUITUR.
S. DAMAGBs-ADEQUAOY-PBRSONAL INJURIES.

'A IJteVedore's laborer received a comminuted fracture of the bones of his leg, and had the leg amputated below the knee, being treated in a free hospital. He was betwee1180 and 35 years old, and earned '1.25 per day, or $375 a year. Held. that an award,of f2,286 wasil. su1Jlcient compensation for his pain and su1!ering and the otb,is capacity for work. 48 Fed. Rep. 914, atIlrmed. " CoSTS-OOJi1tENBATION O. EXPBRTS. , The compensation of expertli oalled by a party in his own behaltcannot be taxed the losing Party\ u!1Cler Rev. at. 15 823, 983, either as costs or extra allowall<l8J.'.. ' L BAKa--eoPYING BTBNOGBAl'BlIlB'S NOTBs.: Honeypatd by a party tor a copy of the oftlc1a!. stenographer's notes tor hia own oonvenfence is not
.. 8.ur_DBP08ITIONS-TRAVBLING EXPBNIlBS.

The expenses of a journey,to a distant city to attend the taking of a deposition cannot be taxed as costs on the ground that the notice was so short as to be insutll· oient for employing and instructing counselthere, since, if the, notice was unreasonable, counsel could have had it extended, or perhaps have .uppressed the deposition.

Appeals from,the District Court of the United States for the District of South , In Libel, by .John Hamilton again,n the British steamship William Branfoot to recover damages for personal injuries. Decree for libelant in thesu tn of 82,286 and costs. 48 Fed. Rep. 914. appeal. ' Both , The libel averred that$Lmilton was on board the steamship then lying afloat the navigable ,waters in the port of William Charleston, in unloading &,cargo of pyrites, and injured by the sudden fall of an iron stanchion, py reason of its defective, unsafe, and insecure condition, through the negligence of the steamship, her owners and officers, contrary to their dutyi,n that behalf. The answer denied that the stanchion suddenly fell, or was either unsafe, defective, or insecure, and alleged that it "was in all respects and, purpoS!ls, as far as could be ascertained by external examination, strong, safe, secure, and properly and safely riveted and fastened," and charged that the injuries were the proximate and immediate result of the negligence of Hamilton, his coem-