980

FEDERAL REPORTER/Val.

52.

LOCK

,CoRBIN CABJNET.LOCK

Co. .,·· ')nAGLE

'Co.

(Circuit Oourt, 1).' OOmtectiCu,t.,,' November 15, 1892.)

No. 519.

t.

PATENTS FOR

In letter!' patent No. 285,916,.1ssued October!2,1883, to Frank W. Mix, for a trunk lock, the first and fifth bptll cover the of a hasp plate, a hasp hinged thereto, the keeper plate, the lock bolt or lock mechanism, and the dowel pin aud socket. or simUarmealis of interlocking the plates. The first claim inC,ludes,'"i,U, ditlon,a. spriug ,c,onstan,tlY P,r8ll11ing the h,asp outw"ard. Held, that these oWmswere autioipated by the Star which has all these elements; and it jB immaterial that lIi;fters from the' article in that the lock is not mounted upon the hasp MBp plate, and, that there is no holdlrlg, protection and BOO1fet other thau the staple, which takes directly into the lock 'proper, and is entgaKed by the lock bolt, for these features 1l0t iucluded in Buchclaims.
ad,

LOOKS.

or

9. libME.,.,.COMBINATION-PRIOR ART.

,first claim of No, 337;,·]87, issued March 2,1886" to Frank W. }lix, for a trunk lqck; coyers 'a, hasp plate I'lld a lock plate, the Ildjacent edges of "whten are ctinstruete'd,,'to 'interlock with each, other,in combination with a hasp · hinged to the hasp plate; and'provided on its free end with a locik,which is received ou,p.. pr frame in I1late, set forth,": He.ld, that as all \I. cLaim is top QI;Oad to be sustainediu vil/w of the prior staW:pf the att, as sllown y the "Star" loCk; the Jones patent :eto.; 44,869, Novemberl,lB64;the Uittiug patent, No. 62,453, Februarvg6, 1867; ,the'Terry patent. No. 11r7,l88, September 6, 18'llhthe Hillebrand&Woife patent, NO'. October Haskell pateut., No. 214,252, 15,1879; and the Grouoh patent, No. 7,1880. , :
'l'he' claim ooversahasp plate "seoured to the cover of the trunk, " and a look plate'''liIeoured to the body," the two plates extending to the edges of the oover and having a cup or frame for the reception ot the loc!t.,:which is carriell,on ,the free ,en4 of tbe hasp, hasp ,being" hinged to the a considerable distance above its lower edge." Thf'l claim concludes 'with'tMwords "substahtially as set forth," and in the specifications the hasp is described as being "spring-pressed." Held, that the claim must be limited by this element,all,c;1bythe, element that the, cup shall be so shaped as to receive and proteQt both the hasp l.ock and the h"sP; ;:Ind that, as thus restricted, giving presumption of validityariSip:g from the issuance of the patent, theolaim is valid all prOdu'6lng a new and usefUl result·

8. SAME.::·:qrILITY. ,

... SAMlll"-UTILITY.

iWhen,libll,existence ot Invention is doubtful, the faot of utility: Ejhould have great of the Patent. Smith v. Co., 93U. S.486; Washburn' & Moen Ma1l.uj'g 00. v. Beat'Em Barbed Wire Co., 12 Sup. Ct. Rep. -.:43, 143 U. S. 275; Gandy v. BelUna 00., 12'sup: Ct. Rep. 598, 148 U. S. 587; and Topliff v. Topliff, 12 Sup. Ct. 145U. S. 156,-followed.

'

In ant.

','

Bill for:infringementofpattmts. for ,(lOll

Decree for complain-

Wilmarth

n.,' Thur8ton" for defendant.

TOWNSEND,' ,Diatrict,'Judge. This isa suit in equity; 'brought for the infrl.ngem,entofletterspatent No. 285,9i6,'dated 2, 1883, and in trunk locks, No. 337 ,l81 "dated March' 2, o;iginally grl1-nted to Frank W. Mix,and by him assigned to the complainant.: The defenses as to both patents are anticipation and want of patentable invention. , The object'of the inveriHon; in both patents is to make the lock serve the double'ptirpo'se oflockingthe trunk! and of preventing lateral move-

CORBIN CAJ;lINET 1,0Cll: CO. tl. EAGLE LOCK CO.

981

ment of the cover, and at the same time providing a cheap, strong, ana efficient lock. Lateral displacement of the trunk and cover is prevented by providing at the meeting edges of the hasp plate and lock plate a dowel pin in one and a corresponding socket in the other, in addition to the hasp and locking mechanism. Only the first and fifth claims of patent No. 285,916 are claimed to be infringed. They are as follows: "(1) In a trunk lock, the combination of the hasp plate, the hasp hinged thereto, the spring arranged to press upon the hasp, with a constant tendency to throw it outward, the keeper plate, the dowel pin and socket, and the lock bolt for locking the hasp into engagement with the keeper, substantially as described." "(5) In a trunk lock, the combination of the hasp plate, the hasp hinged to said hasp plate, the keeper plate, the lock bolt for locking the hasp into engagpment with the keeper. and the dowel pin and socket at the meeting edges of said two plates, all combined SUbstantially as described, and for the purpose specified." The claims in patent No. 337,187 are as follows: "(1) In a trunk lock, a hasp plate and a lock plate, the adjacent edges of which are constructed to interlock with each other, in combination with a hasp hinged to the hasp pllJ.te, and provided on its free end with a lock, which is received in a cupor frame in the lock plate, substantially as set forth. (2) A trunk lock, consisting of a hasp plate adapted to be secured to the cover of the trunk, and Ii lock plate adapted to be secured to the body of the trunk, and constructed with a cup or frame for the reception of the hasp lock, the hasp plate and lock plate constructed and arranged to extend to the meeting edges of the cover and body of the trunk, and the hasp plate provided with a dowel or extension that engages in a socket or recess in the lock plate, in combination witb a hasp hinged to the hasp plate a considerable distance above its lower edge, and provided on its ftee end with a lock, substantially as set forth." Each of these claims includes the following elements: (1) The hasp plate; (2) the hasp hinged thereto; (3) the keeper plate or lock plate; (4) the lock bolt or lock mechanism; (5) the dowel pin and socket, or .similar means of interlocking the plates. Each claim implies that the hasp plate and keeper or lock plate shall be so applied to the trunk {lover that their edges shall meet when the trunk is closed. The first claim of patent No. 285,916 has an additional element, viz., the spring arranged to press upon the hasp with a constant tendency to throw it outward. The defendant, in order to prove lack of patentable invention in view of the prior art, has put in evidence nine patents, viz;: The Jones patent, No. 44,869, November 1, 1864; Uitting patent, No. 62,453, February 26, 1867; Gaylord patent, No. 93,078, July 27,1869; Terry, No. 107,133, September 6, 1870; Hillebrand & Wolfe, No. 120,067, October 17, 1871; Rivers, No. 140,308, June 24,1873; Rice, No. 188,950, March 27, 1877; Haskell, No. 214,252, April 15, 1879; Crouch, No. 235,130, December 7, 1880. Also the exhibit. "Star lock," which it is admitted was manufactured before complainant's patents. Defendant .also claims that the first patent in suit anticipates the second. Nearly .all these patents, including the earlier ones, have the hasp plate, the .hasp hinged to the hasp plate, the keeper or lock plate, and the lock

bult Q;r:,.lockmechanism.;The UitUng'a:nd Terry patents, have the hasp and :its 'Plate, the' constant tenden:ey'Ofwhich is tofibrowdhehasp butward.TheRice patent has it spring:arranged 'and keep the hasp in constanVengagementwithiits'keeper. The Hillebrand & Wolfe patent and the Rivers patent have the edges ofthei 'haspplatearld the keeper plateJarranged so as '00' meet,. and both oftbem'have Cilowels and sockets for interlocking andpItventing lateral movement 'of the trunk cover. It inidmitted that it is old to make on a truplfand cover, separate from the lock, so as to, The patent is for a trunk-lock is in parts surroundirig lock, whichbas,$he hasp plAte and hasp, and a cylindrical lock on the free end .()ftthe hasp. The guard is fitted with dowels and sockets to vent lateral displacement of the trunk and cover. The hasp plate is affixed to the trunk, and the' keeper plate ,to. the cover. .The lock is not particularly described. The specifi<;:ation,speaks of thecl8s$ of locks as well· known. 'Defendant 'claims that patent No. 285,916 oontains only devices, ",,?icboperatein the manas they do when mserted ner, when (:()ly'bIneq .wdthat merely thespbstitution of onewell,known thu,s"if in the Terry patents. the edges of the! 'hasp plate a;ndJteeper plate Wllre 'a.rranged so as'to meet, and they were'provided witlf'dowels and' ,sockets, as in the Hillebrand & tlIe said first and fifth claIms of cdnip1atnant's patent; so, If 10 the 1I.l1lebrand & Wolfe patent and the Riverspatent there were substituted hinged hasps. pressed by It spring, in'the Uittitlg and Terry patents, they would meet these claitns. The device in the Haskell patent may be modified so astO:etnbody f tbec1a.itrlllOf thepittent No. 285,'916 by casting the lock and itgir>llt\mtedgu'ard Integral, instead of in separate pieces. The Star.lock, whioh Was made prior to complainant's patents, hasahasp plate and a ha'Slp hinged thereto; a keeper plate or lock plate, with a sockekinto which' :thehinged:hasp with its staple fits, so that thehaap and the keepetplate present a smooth exterior surface when the trunk is locked; a lock bolt to hook and hold the hasp; two dowel pins tliJ1d' for interlocking the·plates; and arranged t{) press upoll,the hasp with a constan-ttoodencyto throw it outward. The edges of' the hasppllite and keeper :plate meet when the trunk is closed. Coll1pla-inallt's and 'claim that this differs from, invention· "in. the fact that· the lock is not mounted upontlie hasp 'or: hasp plate, and ill the filct that there is no holdingptbtectionalld i ofhier than the staple, which takes directly into the lock proper and :is engaged by the lock bolt." These points of difference do·not Seem hFbeiinduded in the ,first ahdfifth clai ms of patent No. 285,916. These are'the only claims of that patent which are applicable to 'the construction shO\Vldn Fig. 8 fond Fig. 10 of the drawings,and must be so construed as to .inchlde the structures shown in

as

CORBIN CA.BINET LOCK CO. V.EAGLE LOCK CO.

983

those figures. Defendant's expert admits that in structures shown in said figures the lock is not mounted on the hasp. In my opinion, the Star lock anticipates the first and fifth claim s of patent No. 285,916. Both claims of patent No. 337 ,187 include, in addition to the five elements before mentioned, common to both patents, the lock or lock mechanism arranged on the free end of the ha.sp, and a cup or frame in the lock plate to receive the lock; and the second claim of patent No. 337,187 f\lrther provides that the hasp plate, with its dowel, shall be adapted to be secured to the body of the trunk, and that the hasp shall be hinged to the hasp plate at a considerable distance above its lower edge. All the elements combined in patent No. 337,187 were old and well known. No one patent appears to have all the elements arranged in just the same way. Defendant's counsel again claims with much force that this patent also merely presents an accretion of well-known that, aslocks with dowels and sockets were well known, and locks with hinged hasps carrying their locking mechanism on the free end of the hasp, and having a cup in, the lock plate to receive the lock, were well known, and that, as the operation of the dowel and socket were not connected with the operation of the lock mechanism, and the dowel and Bocket could be, and had been, placed on different parts of the trunk, there was no invention in the making of the particular lock described in the patent. The Jones patent, the Terry patent, the Haskell patent, and the Crouch patent show or imply a lock mechanism hinged to the hasp, and received in a cup or frame in the lock plate. The Crouch lock seems to have all the elements of the first claim of complainant's patent No. 337,187, except the dowel and socket, which are found in former patents. In the Haskell patent, the guard, combined with the keeper plate, as shown in the drawings, makes a ctlp or socket for the lock. If a cylindrical lock on the hasp is substituted for the hasp and lock mechanism on the lock plate, and a dowel and socket added, in the Uitting patent, it will embody all the claims of the second Mix patent. Unless the lock in the second Mix patent is to be construed as necessarily cylindrical, the Terry patent, by the addition of a dowel and socket, would embody all the claims of this patent. In the Hillebrand & Wolfe patent, the substitution of a hinged hasp, spring-pressed, with a cylindrical lock on the free end, for the hingeless hasp shown in the patent, would satisfy the first claim of patent No. 337,187, and if such hasp were hung somewhat higher on the hasp plate it would satisfy the second. If the exhibit Star lock were modified by substituting a cylindrical lock on the free end of the hasp for thb staple of the hasp and lock mechanism of the plate, it would embody the first claim of the patent under consideration; and, if such hasp were hinged on the hasp plate, it would embody the second. In a case like this, if any claim is to be held valid, it must be because the article produced is shown to have a special utility, and to answer the requirements of its department more fully than anything that has gone before; and the monopoly should even then be restricted as closely as may be to the improvement actually shown. The first claim of patent No. 337 ,187

984

FEDERAL REPORTER,

vol. .52.

appears to be too broad to be held valid in view of the prior art as shown in, tpiscase. 'J1b,Q secon"d chlim is more closely limited. The hasp plate, with the dowels,. must be on the cover,and the keeper plate, with the sockets, mU$t.beon'the body, of the trunk., This seems to be the most con· venientform. The hasp, which the.specification describes to be "springpressed," and which should be so limited, is to' be hinged a consideraqle" distance above the edge of the hasp plate. ,The lock must be mounted upon the free end of the hasp, and must be limited to a cylindrical form. Made in this way,the lock seems to combine more advllutages, and have greater utility, than any that has preceded it. The question ,of utility is steadily coming into greater prominence as a test of in;vention. Where an art has grown by successive steps, the inventor whOfsuppHes the last requisite to making a better article than his predecessors,is now allowed the benefit of that last step, even though it seems tp, be a short one. There seems, to be no doubt of the utility of this at least the defendant is hardly ill ,,1 ·position to dispute it. Defendant's claims that it is not enough that a device has grown .into e:xtensive use, but that it must also have displaced previous devices,in or:der tora.ise any presumption of the utility entitled to be considered in determining the question of patentability. This device seems to;have displaced former devices in the manufactory of the defendant, at leasha$ ;\,VeIl as in that of the complainant, and large numbers have been. made and sold hoth by complainant and defendant. Complainant's expellt;says, and his counsel quotes: "'I'he Mix: invention, as embodied· in the second Mix patent. co1lsists of a complete reorgl\uization of ,the Crouch type of lock. 'Whereby it may be suetpe trunk lid, and co-operate with the keeper upon the trunk body·.and all the pttrts be adequately protl'cted, and the lock-carrying hasp be spring-pressed, as to hold it llQrmally slightly in front of the cup. To this he did not hinge the haflp to the extreme end of the hasp plate as in the priorCronch and Excelsior constructions, but he carried the hinge, as the patent says, ·a considerable distance 'above the lower edge,' so that the lock caseiWPIl the free end of the hasp would extend, below the valance only far toepgage a cup plate. which was mbunted so high upon the body of thetrunk asto extend tothe meeting edges of the cpver and body of the trunk." , ' lie also,$() ,shaped the oup plate ,that it would both receive and shield tile lock ,caEle ll,llq the hasp carrying. the lock case. The shaping of the cup plate or lock plate so as to receive and shield the hasp carrying the look case, as well as the lock case itself, is put forward as an important point in complainant's case. I think this element should be so limited. Witb ,the respective elements limited as above state<i, I thinkthat the second claim of patent No. 337,187 ought to be sustained. So far. a,S Ilppears from the evidence, this lock issuperior to"andcornbines Inore advantllges than, any which has preceded it. On the whole, it seeml'l to me to. be so Jur superior to the others which have been brought tpmy notice as to constitute a new and useful result, and to come within the scope of the decisions which hold that

TJIE OLYMPIA.

985

the fact that the hew combination of: old elements produces a new and useful result is strong evidence that such combination is the product of ventive ingenuity, and not merely an aggregation of devices. The trine that utility should have great weight in favor of the existence of invention when the question is doubtful is fully sustained by the supreme court. Smith v. Vulcanite Co., 93 U. S. 486; Washburn &- Moen Manuf'g Co. v.Beat 'Em,AUBai'bed Wire Co., 143 U. S. 275, 12 Sup. Ct. Rep. 443; Gandy v. Belting Co., 143 U. S. 587, 12 Sup. Ct. Rep. 598; Topliff v.Topliff, 145 U. S. 156, 12 Sup. Ct. Rep. 825. The doctrine of these ·cases is carefully considered and practically applied to its full extent in Watson v.· Stevens, 60 O. G·. 1884,51 Fed. Rep. 757. I do not think that the doctrine that an accretion of old devices, or the substitution of onewell·known device for another, does not involve invention, applies any more strongly in the present case than in the case last cited. As in that case, the considerations on each side seem to me to be very closely balanced. The presumption arising from the fact that the patent office issued the patent is to be allowed due weight. The second claim of pateI\t No. 337,187, limited as above stated, is sustained. Let there be a decree for an injunction and an accounting.

THE OLYMPIA. THE JOHN THE OLYMPIA '11. THE JOHN SHERMAN.

(Di8trict Oourt, E. D. Michigan. June 2, 1891.)

1.

COLLISION-STEAMER AND TOW-PARTING OJ!' TILLER RoPE-INEVITABLB ACOIDBNT.

The steamer Olympia, on approaohing a steamer with two lumber schooners in tow in the Detroit river, at full speed, (about 10 miles an hour,) put her helm hard astarboard in order to pass, but the tiller rope parted. The engines were immediately reversed, and everything possible done, but the momentum of the Olympia carried her against one of the tows, and sunk her. The tiller rope was of suitable size; had been purchased of a reputable dealer at a price which should have secured a good article; had been in use but two years, while the usual use is from three to five years; and had been thoroughly inspected just before entering the river. It was examined by experts at the hearing, and no flaw or crystallization discovered. The steering gear was worked by steam engines capable of putting severe strains upon the rope, but the use had not been exoeptionally severe. that the accident was inevitable, and the steamer not liable therefor. The use of steering allparatus worked by steam engines, geared to a worm screw, puts such violent and sudden strains upon the machinery that when a collision results from its sudden collapse it is not enough to exempt the vessel from liability that the material was originally of the best quality, and that its service, dimensions, and workmanship warranted a reliance on its sul'Jlciency, but these conditions must be supplemented by the closest attention to their preservation. Since only judicial inquiry could have brought out the evidence showing that the steamer was not at fault, the libelants were justified in bringing SUit, antI Costl should not be allowed to the claimants.

2.

SAME-STBAM STEERING GEAR.

8.

SAME-COSTS.

986

FEDERAL REPORTER,

vol. 52.

b;Admiralty:. :Libel em rem by the :owners and insurers of the schooner, lohn Sherman .against ',' the. steamer Olympia ", fol' .collision. Libel'diSmissed. 'Moor,,:&: Uanfi6ld, forlibl'lants. H. D. "(}tmlde1!, for Sw&N',·District Judge.: ,This suit ,is brought by the owner and insurers of tn& schci>oner John Sherman to recover for the lOss of that vessel, whichiVttElsurilt by collision with the steamer Olympia; in the Deti'oit river, abtiUi'4'o'Clock pi: M.of May 8, '1891. , The Sherman was in tow and neit astern of thesteamerLowell,wbich had alsoin'tow, astern of the schboh6'r Roberts. The LoweU and:her consort, all lumberl.tltm"were bouDtlbfromCheboygan;: Mich., to Toledo, Ohio, and were: rUfifntng,about ;eight miles per hour at the time of the collision. Their Course: down the:,:riiVer took them well on ,the. Canadian side of mid-<:hannel"oraboutoniLthirdof the width of the river from the Canadl11D'chanriel bank;lllnd at the time of the collision the Lowell and, her' tow 'were below, Walkerville, Ont., which isaibout one and a quarter miles above the.footof Woodward avenue, Detroit. The Detroit river at the place of collision is about half a mile wide. Neither vessel of the tow was carrying sail. The Olympia, a steamer of 2,000 tons (gross) register, 276 feet long, and 41 feet beam, drawing 14 feet 2 inches, laden with 1,850 tons of coal, and bound from Cleveland to Duluth, came up the river on the usual cpurse until she had rounded Sandwich point, below Detr6it, wMil, for the purpose of picking up the over towa\'ds the American side, passing marine reporter, she Woodward avenue at reduced speed, about three or four lengths from side as the the Detroit dock, line, or about as far from the" I . owell and her t'd'W wl'irefrotn the OPPosite bank. Jlist' after par-sing outwhich lay a few hllndred feet above side the revenue, the foot of Woodward avenue:' the marine reporter's line was cast off, ard the sigllal!Vas given toher engineer"aIld the Olympia putatheracctistoUled fQU speed,about 10 When this river, a little ,O:Q berstarbOArd,llow. course '!lp the Canadian wheel and she swung until: she hAd brougbtBelle Isle on her port ,bow. When this was and :OOwell hadnol quite got abreast of each other. Th;e. Oly,ro,puil. was then heading tbe'stern of the Roberts, the >qwell's secopA: vessel. '.I'O preserve<this 'course, and to check the swing 'afthe steamer, her wheel was starhoarcied"butfailed to break her swing.> Seeing this, her master ordered it hard astarboard, in 'whtGhthe tiller rope slaqttened on the wheel, indicatingu,ntnistakably that the steering gear had given way by the breaking ' 'rhiswas seen bytherna$ter.ofthe Olympia from his post on top of the pilot house, just as he gave the order at onces!gnaled to the engineer to stop and to hard back, which was promptly done, and instantly followed those orders by

THEOLYMPJA.

sounding three or· four alarm signals totbe Lowell and 'het tow, which' were then three or fQur lengths of the Olympia away. ·The effect ofreversing the Olympia was to sW,ing her stern to port Rnd her bow to starboard. Laden as she was, her ,headway was such, despite the power of her engines workipg astern to thl:1ir full capacity, as to carry her across the current, until, stem on, she struck the John Sherman, which was about 500 feet astern of the Lowell, on the starboard side, between the main and mizzen rigging I cuttillg into her four or five feet, the force of the blow lifting the port side of the schooner, springing her. deck, and throwing her mastE! out of line. The wheel of the Sherman was put hard astarboard upon, the Olympia's alarm whistles, but her position in the tow prevented any effectual maneuver to get out oUhe way. The answer of the claimant charges the Shennan with contributing to the collision by neglecting to make due effort to avoid the Olympia, when apprised of her helpless condition, either by swinging off to ,or by casting .off her towline, but the proof is satisfactory that, placed as she was, the Sherman was as helpless as the Olympia, and that such effort as was possible was made to escape. The collision was indeed inevitable when the Olympia's tiller rope parted. The Olympia was built in 1889, and had been running less than two seasons at the time of this disaster. She was equipped with a steam steering gear of the most approved pattern, and her tiller rope was of charcoal iron wire, one inch in diameter, the size employed on steam vessels of her tonnage. She had also a hand wheel, and was provided with relieving tackles, adjustable to the tiller in from three. to five minutes.. , The ordinary full watch on deck and at the engines were in charge of her navigation, and their competency is unquestioned. The faults aHeged against the Olympia are: "(1) In not keeping her course, and passing the said schooner and the tow, in which she was on the port side, and as she might safely have done, and in leaVing said course, swinging to starboard, and towards said schooner and said tow. (2) In not promptly stopping, reversing, or checking her speed after she had turned towards said tow, and when she was approaching said schooner, so as to involve risk of collision." The answer, among other defenses, charges that the Sherman was weak and unseaworthy, and that the consequences of the collision were in large part owing to her condition, and not to the forceoftha impact. The main defense is that the collision"Was caused by unavoidable accident, which could not be foreseen. and against which human prudence could not guard; that the cause of the steering gear failing to work was ascertained to be the breaking of the wire wheel rope afton the starboard side; that it was a wire rope, of suitable and ample size. which had been bought at a price which should have insured the best material. and was sold and represented to tue boat as oftha best material for that purpose. and was properly rigged and fitted in the most approved manner; that it had been overhauled in Cleveland the day previous to this collision, and her steering gear had been put. so far as human knowledge and ingenuity could (10 so, in perfect condition; and that, according to a standing rule, the mate had looked over and examined the steering gear, including

988

FEDERAL REPORTER,

vol. 52.

this rope,'before-tbel"e8sel entered the Detroit rivel', but a few hours before the accident, on'which occasion he found everything apparen tIy in good order and condltloll... The answer'further denies all fault, negligence, and omission by the claimant or the 'officers and crew of the OlylIlpia in her equipment aud navigation·. The proofs acquit both the Sherman and the Olympia of the omission ofany measure which would have averted or mitigated the collision after the breakingofthelatter's wheel rope. The collision being admitted, the primary inquiry i" whether its cause was any defect in the equipment of the Olympia against which dne care and skill could have provided. If the defense of inevitable accident is sustained, it will dispense with the necessity of weighing the proofs as to the condition of the Sherman, as a factorin the extent of the damage. It appears froin the proofthat on August 26, 1890, the Olympia ran onto the Boston shoals, at the mouth of the Detroit river, and that the accident was caused by the parting of this same tiller rope. The rope waS examined, and found to have parted in the starboard forward block, through which it led, and that the break was occasioned by the warpingof theblock,which was set in close proximity to the steam pipe the forward part of the boat. The effect of the heat was to warp the block frouiits proper horizontal position, and thereby the tiller rope, under the power 'of the steering engine, was brought against the ,pitiofthe sheave, and pl.'trted. ' The evidence shows that a single contract of:the ph'l and the Wire tillerrope drawn by the steering engine to cu.t it. This break was at once repaired. The chafed portion 'of the tiller rope was cut out, it was 'changed "end for end,"and again rove. It was used the reillainder of the season,-some thrttoe months,-:'7in fQutor five round trips ,of Lake Superior, without developing'any indication>of weakness or defect.· On May 7th, the day before the collision, just before departing fl'OO1Cleveland, the master ofthe of brinping into horizontal position the block next to the quadrant on the rudderjlOst, caused a short splice to be serted in the tiller rope between that block and the block on the starbOSTcl. quarter.' .The splicing wus done by George Patterson, a competent wirerigger<Of OVer 20 years' experience, who had set up this rope ont4e Olympia when she came out, and he was aided in the work by Bogie, the second mate of the steamer. Speaking of the condition of the the quadrant and the block .oothe starboard side, (the locality oithe break,) Patterson, when asked if in making the splice he thought:tt:> examine the rope as to its fitness for splicing, an· swered:"No; sir; but if the rope had been bad, I could tell that by bandling it. I fdund out the rope was good. and I spliced it. If I had found the rope bad, Iwould not have spliced iL" Bogie testified as positively that if was apparently good, and that he handled it before and after Patterson spliced it. and also examined it at the time and place of the break, bntcoilld not learn the cause of its parting. Other witnesses concur that there was no defect which could be seen or detected

THE OLYMPIA.

989

by manipulation. The rules prescribed by the owners of the Olympia required the steering gear to be inspected before entering the river in her route, and, in obedience thereto, the first mate, who died before this suit was brought, was sent by the master to make that examination as the Olympia was approaching the mouth of the Detroit river, about three hours before this collision. The mate reported that he had performed that duty, and found the steering gear "all right." The rope was produced at the hearing, identified, and inspected by experts, but nothing was elicited to account for its rupture. The wire was sound, smooth, pliable, without flaws, and of good quality. With the wheel hard over, the forward end of the splice was brought within about a foot of the starboard block aft, no part of the splice traveling on the sheave. The rope 'parted between the splice and the starboard quarter block. The fag-ends of the break were of unequal length, indicating that the strands. had been pulled apart, as if yielding to a violent strain. The tensile strength of a rope of this diameter varies from 30,000 to 35,000 pounds. The effect of strains is to crystallize and weaken the iron. No indication of crystallization was found. There is nothing in the proof impeaching the quality of the material, or explaining the cause of its rupture. It was purchased from reputable dealers, and manufactured by makers of good standing, who customarily tested their wares before putting them on sale. The proofs agree that its size, material, workluanship" and condition .assured its fitness and adequacy to its use when originally'put in the steamer. 'l'he service in which the Olympia was employed was not exceptionally sever". The evidence is undisputed that the life of such a tiller rope may be relied upon for at least three, and generally four or five, years of use, though in view of the facts of this case I am inclined to regard the shorter period as the safer limit. The fact that the break was not in the splice, but in the intact, and apparently,sound, portion of the rope negatives any suggestion of connection between this and. the disaster of the' year before at the Boston shoals; especially since the good condition of the gear is confirUled by its subsequent satisfactory service up. to the very day of this collision, and by its present appearance. Had the first mishap been occasioned by any defect in the rope, the aspect of the case would have been entirely different. ' We must look elsewhere for the cause of this mischance. The Olympia's steam steerer is worked by double engines of seven horse power, geared to a worm screw. The rapidity with which this force is applied to its work necessarily subjects the tiller rope to violent and severe strains, and the increasing frequency of accidents of this kind to steamers is, in part, at least, chargeable to this powerful and expeditious machinery. Its instantaneous action, though invaluable in sudden emergencies, necessitates the highest vigilance in the inspection and maintenance in perfect order of its connections. The very facility with which it is operahJd rarely reminrls even the experienced mariner of the necessary effect of a great power, so easily put in motion, upon the connections .to which it is applied. The error of giving a vessel too much

,
FEDERAIJ. mllPORTER,;'VOl.

52.

apparentlr 'b:rai touch of the 'blind, _but in facthy a acthiglwith Btlchenergy\tWJ,tilits effectltllontbe fabric wrought upon ,isrllilrelY' rtlonsidered!or: appreciated, tent and.e:tpetieneed wheell:ltnien-at1 th.e helm ,<tire glli#s.na. unavoidable sBarpchanges weltr arid, lsllmiwJof'the'gearj oecasionedby 6f;'courseo:ibCident to' tbe nawgationot'the,sinuotisand comparatively ;0£ the waterwa.ys between the ;Grept :Lakes, crowned, narrow ag,they arej'wHh'a vast·oommerce;:i$ so necessary a result the use:0fniachinerywork;illlg with,suoh':pO'Wer: and':eeIeritythat the degree'of. care/and, skillrequired1rtOkeep itin!safe'icoud'ition in all its parts would 00 :iJ.'cicollnted ektraordinary were there less need of it. The propriety. of instating upon this meiisureof diligence· in the use and care of tMs equip.P1sut is manifest!.'1! ':It is; not enoughio a vessel from injury'wJifeand property traceable to the den collapse.()frthe gUiding power U1aMhe material was originally of the best that its i service, 'dimensions, aodworkmanship warranted its suffic[ency,unlessthese conditions are supplemented by: the; olosest att.etHionto,their preservation. Ordinary care terms; limited only by the which and skill areinvoke them,iandthe fieldfoHheir exercise enlarges'with the dangerous character of the 3gencyemployed. The same coosiderationswhich exl1<!lt from a \t68SEll:propelled' by steam the utmost care and circumspection in navigation,because of her speed and power, more forcibly require that .fhe:mo.chinEl1ly'for the control of her course shall be equal to that end, sofarl'as reasonable care and skill can make and maintain them. If,suctt<lareand skill are -bestowed in thew use and preservation, an accident1occurs, the Jaw gives immunity, regarding it as unavoidable. It is 'Ut-ged that the defense of inevitable accident: is not one to be :ittniustlbe'confessed thatthere isa popular prejudice against it. There iSR gEl\im'ing hardship in leaving an injured party ; innocent of fault, to bearlthoconsequenceso{ll.' misfortune, without redress against the person or' Clhiing causing the 1088 by pure fortuitYi yet the argument against this id(Jfense loses sight of the ffact that the:itnposition of liability for any part of:such:loss upon one not cllllpable would not only be a judicial wrong; which shifts the misfortune upon an innocent person, but its effect would be disastrous to tbe safety of life and property, by removand skill in tbeconduct ing a strongiMentiveto ofevery oCCuplltton and buainess.The courts would then become, not only tribunals foi,the assessinentiof damages, without power to'inquire ioto other facts, hut instrumentS lof rank injustice·. The popular ment against a personwho'without fault of himself or his servants has caused damage to another is as unjust and impolitic as the obsolete law of deodand, which forfeited to the king the animal or thing whichcltused;thedeath,of abutruin being. The <iivil law, the common law, the maritIme law, and the law·of Great Britain and the United States agree that "here a collision' takes place by inevitable accident, without blame being imputable to eitber party, the consequences of the misfortune must be borne by the party upon whom it bappens to fall.

wih!Bel is

I

or

THE OLYH1>IA.

991

Pars. Shipp. &; 'Adm: 525, and Cltaes. It is not necessary to this deextraordinary fense that the party proceeded against should have skill and 'diligence, but'simply; "that degree of skill and 'that degree of diligence which is usually found in persons -who discharg.etheirduty." The 'I'lwiMB Powell and The Cuba; 2 Marit. Law Cas. '(0. S.) 244; 'The 4 p.e. 212,: and cases cited; Pke Virgo, 3 Asp. 285; R. 2 34. "The highest degree of caution that can he used is not required. It is enough that it is reasotlable'un.. der the, circum.stances,such as is usual in similar cases, and, has heen foundhylonigexperience to he sufficient to answer the endinview,-the safety of life and property." The Grace Girdler, 7 WalL 203; The Mabey:and PM COCYfJeT, 14 'Wall. 204-215. ThecourtB'iof common law hold !the saDie doctrine, which is well expressed in Bygertv. BradleY,8Weridn47:8:' ,,,,, "When we speak of an unavoidable accident, in legal phtliseoldgy,' we do not mean an accident which it was physically impossible, from the nature of things, for the defendant to have prevented. All that is meant is that it wag not occasioned in any degree, either remotely or directly, by the want of such care and skill 8S the law holds every man bound to exercise." See, also, Weaver v. Ward, Hoh 134; Losee v. Buchanan, 51 N. Y. 476; Bizzell v. Booker, 16 Ark. 308; Morris v. Platt, 32 Conn. 75; Brown v. Marshall,47 Mich. 576, 11 N. W. Rep. 392; Gault v. Humes, 20 Md. 297; Morgan v. Symonds, 1 Jur. 137. Tried by this rule, it is clearthat the claimant has established his defense. Every practical precaution seems to havp. been taken to forefend this casualty. Its occurrence may, with equal reason, he referred to a sudden and extraordinary strain, which is the theory of masters of experience, or to a latent undiscovered defect in the rope, or the co-operation of both these causes. Whether occasioned by either or both, it was inevitable. The claimant had a right to assume that the reputable ship chandlers from whom the tiller rope Was boughCwerecompetent and careful pealers, and had used due care in their purchases; and also that an article of such vital importance to the safety of a steam vessel, made by manufacturers orgood standing, might be relied upon as adequate to the purpose for which it was designed, especially when it had withstood the proper test. Its use and service approved the claimant's judgment. There was nothing to indicate weakness,though its condition was carefully observed. Consequently, no negligence in its use is shown. Railway 00. v. Huntley, 38 Mich. 547; Readhead v. Railway Co., L. R. 4 Q. B. 379; Daniel v. Railway Co., L. R.5 H. L. 45; Richardson v. Railway Co., 1 C. P. Div. 342. Nor does the evidence sustain the imputation of fault founded on the failure to use the relieving tackle. There was no time to bring that appliance into use. It is not intended for use in emergencies demanding prompt action, nor for the navigation of a large steamer in a narrow channel, but it is a tempo,rary steering gear, to be hooked to a tiller in bad weather, as a safeguard against the consequences of the breaking of the tiller rope, or as a substitute for it, when broken, until it can be

nfp,au,ed·. ' The·master!0f the stl:lamer'testifies tha.t it cotlld',not Mve been
ltoolted/onrealiy {oruBe :under three to five minutes, while less than th11eSJWul11teate1&psed'from ·the discovery oftha break until the collision. has befallen the libelants without· fault ,on their pMt, the only sufferers, has naturally invited a close scrntillY of the ldtlfenSej .but the proofs fail to disclose' any grouhds for the 'Condemoati·.:of the Olympia. The" loss must rest w1iere it has falleh, and the libe1,..must be dislnissed. The circumstances under which the collision occurred justified the libelants in. bttinging suit for their loss, as only judicial inquiry could have elicited·flle,evidence which has exonerated the Olympia. If it had appeared that.an equally full showing of the proofs in her defense had been made prior to the' filing of the libel, I should have followed the American rule, and allowed costs to the claimants, but, under the circumstances, n9Cos.ts wPJ,be allowed.

JbD. OJ'

VOLUXB

Gil.