JENNINGS and others v. LOWENSTINE and others. (Circuit Court, S. D. New York. May 17, 1887.) PATENTS FOR INVENTIONS - PROCESS FOR SHAPING LACE MITTS - PATENTABLE NOVELTY. The claim relating to a process for shaping lace mitts contained in letters patent granted November 9, 1880, to Warren P. Jennings, for a mitt-shaping machine, is wanting in patentable novelty by reason of the prior known state of the art, and a bill to restrain infringement of said claim will be dismissed. In Equity. Arthur v. Briesen, for plaintiff. WHEELER, J. This suit is brought upon letters patent No. 234,286, dated November 9, 1880, and granted to Warren P. Jennings for a mittshaping machine, the process of shaping lace mitts, and the mitts as shaped. There is no charge that the defendants infringe as to the machine. The case turns principally upon the claim as to the process. That consists in first stretching the mitts lengthwise, and thereby contracting them at the desired point, and in then subjecting them, first to the direct action of steam, and next to heat, for the purpose of setting the fibers to the desired form. From the evidence in the case it clearly appears that similar articles were shaped by stretching them over forms, enlarging them where they were too small, and contracting them where they were too large, and then exposing them, first to steam, and then to heat, according to the method of the patent, for the purpose of setting the fibers in the desired form. The patent is for contracting the mitts where contraction is desired, without mentioning enlargement. This contraction is precisely according to the old process. The only difference between the processes is that by the old process the articles were first made too small for the large parts, as well as too large for the small parts, and then correspondingly enlarged and contracted; while by the process of the patent the articles are first made large enough for the large parts, and shaped only by contraction where they are too large. The treatment of the parts operated upon is precisely the same in each. This is all that this claim of the patent assumes to cover. The machine has new contrivances for holding the ends of the mitts, but they are not covered by this claim. The patentee invented means of applying the process, rather than the process, and this claim, upon this consideration, must fail for want of novelty to support it. The claim for the mitts themselves rests wholly upon their being contracted laterally between their ends, without reducing the number of meshes at their contracted parts. There does not appear to be any patentable novelty about this. Let a decree be entered dismissing the bill of complaint, with costs. BENNETT v. LINGHAM.1 (District Court, E. D. New York. May 27, 1887.) CHARTER-PARTY-TIME OF SAILING-BREACH - PREVIOUS ACQUIESCENCE - LIA BILITY. Defendant agreed to ship cattle by the steamer N. H., "sailing from New York about the middle of September." The vessel was at sea when the contract was made. On September 14th defendant inquired the steamer's probable sailing day, and was told, about September 27th, to which he made no objection. On September 22d, the defendant, being notified that the steamer would sail on the 29th, declined to ship cattle by her, on the ground that his contract did not require him to ship at so late a day. Held, that the ship having construed the indefinite phrase, "about the middle of September," to mean as late as the twenty-seventh of the month, and defendant having acquiesced therein, and that, too, on a day before the middle of September, it was not open to the defendant to say that a tender on the 29th was not a compliance with the contract. His refusal to ship was therefore a breach of the contract. In Admiralty. Ullo, Ruebsamen & Hubbe, for libelant. BENEDICT, J. This action is brought by the owners of the steamer Notting Hill to recover damages of the defendant for an alleged breach of a live-stock freight contract, made by the defendant, whereby he agreed to ship on the said steamer about 460 head of cattle, to be transported in said vessel from New York to Deptford, at a price named. The contract was in writing, and was made in New York on the eleventh of August, 1883, at which time the steamer was upon a voyage from New York to London and back. The contract, when designating the steamer in which the cattle were to be transported, adds to the steamer's name the words, "sailing from New York about the middle of September." The steamer was unable to get back to New York before September 22d. On September 22d the defendant was notified that the steamer would be ready to sail on the 29th, but declined to ship cattle by her, upon the ground that his contract did not require him to ship at so late a day. I should have been inclined to support the defendant in this refusal were it not for the additional fact that on the fourteenth day of September, in answer to the defendant's inquiry as to the date on which the steamer left London, and also "her probable date of sailing from New York," was informed by telegraph that she had sailed from London on the sixth of September, and would be dispatched from New York about September 27th, and he then made no objection of any kind to shipping his cattle on her. The phrase in the contract, "about the middle of September," is indefinite. It has no definite meaning in the trade. In this instance it 1 Reported by Edward G. Benedict, Esq., of the New York bar. was construed by the ship to cover a day as late as September 27th. This construction was made known to the defendant on September 14th, and he then made no objection to that construction. After this interpretation of the indefinite phrase, "about the middle of September," acquiesced in by the defendant, and that, too, on the day before the middle of September, it was not open to the defendant to say that a tender of the ship on the twenty-ninth of September was not a compliance with the contract. The defendant's refusal to ship cattle on the steam-ship was therefore a breach of the contract on his part, and he is liable for the damages resulting therefrom. SVENDSEN v. STURSBERG and others.1 (District Court, E. D. New York. May 27, 1887.) CHARTER-WARRANTY OF SEAWORTHINESS-REJECTION OF VESSEL. Four impartial, competent, and experienced persons having, after examination of a vessel, expressed the belief that she was not seaworthy, and the owner having refused to dock the vessel and settle the question, it was held that, notwithstanding the subsequent good performance of the ship, the charterers were justified in rejecting her. In Admiralty. Libel to recover damages for failure of claimants to ship cargo by her in terms of charter-party. Butler, Stillman & Hubbard, for libelant. Jas. K. Hill, Wing & Shoudy, for claimants. BENEDICT, J. In the case of Premuda v. Goepel, 23 Fed. Rep. 410, it was decided by Judge BROWN that the warranty of the seaworthiness of a ship is a warranty that the ship is in such a fit condition for all the ordinary hazards of the contemplated voyage as to be approved as seaworthy in the judgment of impartial, competent, and experienced men, versed in that business. If such be the legal effect of the warranty of seaworthiness, and I incline to the opinion that such must be its effect, the libelant in this case cannot recover; for the proof shows that four impartial, competent, and experienced persons, agents of various underwriters, after examining the ship, formed and expressed the judgment that the ship was not seaworthy; while the agent of the Norwegian underwriters, and the agent of the ship, himself an experienced shipmaster, formed a contrary opinion. No bias against the ship on the part of those who rejected her is shown, and no reason assigned for their adverse opinion other than the condition of the ship as visible to them. The difference in opinion thus disclosed could have been terminated at once by having the ship docked, and the Reported by Edward G. Benedict, Esq., of the New York bar. condition of her bottom thus disclosed. The ship was not put on the dock, nor was such an examination of her tendered. This omission indicates to my mind that what was visible of the ship afforded just ground for the belief that such an examination would disclose an unsound bottom. No reason is suggested for omitting to dock the ship, except the expense. That reason appears to me to be an insufficient one, under the circumstances. The rejection of the ship by one insurance inspector was of itself so serious a matter for the ship that it seems to me that some other reason than the expense of docking the ship must have existed to cause the omission to tender that examination, that would have laid to rest all doubts as to the seaworthiness of the ship. I have not overlooked the subsequent performance of the ship, but the question is not whether the ship would make the contemplated voyage in safety, but whether the condition of the ship was such as to justify the belief of competent persons that she was not in fit condition to be exposed to the hazards of the contemplated voyage. If that be the question, it seems clear that the charterers were justified in rejecting the vessel, and the libel must be dismissed, with costs. THE CRAIGENDORAN.1 THE CLANDON. BARTLETT and others v. THE CRAIGENDORAN. SAME V. THE CLANDON. (District Court, E. D. New York. May 27, 1887.) 1. WHARFAGE-HOW COMPUTED-TONNAGE OF VESSEL-REGISTERED TONNAGE. The wharfage act of 1877 of the state of New York (Laws 1877, c. 315) regulates the rates of wharfage in New York and Brooklyn by the tonnage of the vessel. Held, that the tonnage so taken to calculate the wharfage is the registered, not the gross, tonnage. 2. SAME-BRITISH VESSELS. The rule is the same for British vessels; the secretary of the treasury having by the treasury regulations of 1884, art. 182, directed that their tonnage shall be determined by reference to their certificate of registry. In Admiralty. Goodrich, Deady & Goodrich, for libelant. BENEDICT, J. This is an action to recover wharfage for the use of a wharf in the city of Brooklyn. The rates of wharfage chargeable for the use of wharves in the city of Brooklyn and the city of New York are regulated by a statute of the state, enacted in 1877. The provision in the laws of the state now, and at the time in the libel mentioned, in Reported by Edward G. Benedict, Esq., of the New York bar. force, is as follows (chapter 315, Laws 1877:) "It shall be lawful to charge and receive, within the cities of New York and Brooklyn and Long Island City, wharfage and dockage at the following rates, namely: * * * From any vessel of two hundred tons burden and under, two cents per ton; and from every vessel over two hundred tons burden, two cents per ton for the first two hundred tons and one cent per ton for any additional ton." Under this statute, the question has arisen whether the tonnage of the ship so taken for the purpose of calculating her wharfage is the tonnage of the ship ascertained by measuring her in the manner prescribed by the laws of the United States in force at the time of the passage of the state law of 1877, or the tonnage ascertained by measuring her in the manner prescribed by the laws of the United States in force at the time of using the wharf. This question is not free from difficulty; but on reflection, and upon considering the force of the expression of the supreme court, where it is said, "Evidently the word 'tonnage,' in commercial designation, means the number of tons burden the ship will carry as estimated and ascertained by the official admeasurement and computation prescribed by the public authority," and mindful of the fact that the measuring of a ship for the purpose of fixing her tonnage is required by law to be made by an officer of the United States, and that the method of measuring to be pursued by such officer is prescribed by law, and that the tonnage of the ship must be inserted in her register or enrollment, and the tonnage there stated must be that tonnage, and no other, which is ascertained by the officer, from a measurement made in the manner prescribed by law at the time of her registry or enrollment, and that consequently the only legal tonnage of the ship is the tonnage stated in her registry or enrollment, I am of the opinion that the words "tons burden," as used in the wharfage act of 1877, above quoted, should be held to mean the registered tonnage of the ship, and not her gross tonnage. No method by which to ascertain the tonnage of a ship for the purpose of calculating her wharfage is provided by the state statute, and all ships are required by law to carry a register in which the tonnage is stated. The fair presumption is that it was the intention of the statute that reference to the ship's register should be made for the purpose of calculating her wharfage, and not to leave the tonnage to be a matter of private calculation and open to dispute. In this instance the vessel is a British vessel; but that fact makes no difference, for, under the statute of 1882, the secretary of the treasury is authorized to direct that the tonnage of foreign vessels be that described in their certificates of registry or other national papers; and, by article 182 of the treasury regulations of 1884, the secretary has directed that the tonnage of vessels of Great Britain shall be determined by reference to their certificate of registry. In accordance with these views, the wharfage recoverable in this case must be calculated on the registered tonnage of the ship, which is admitted to be 943 tons, at the rate of two cents per ton for the first 200tons and one cent per ton for every additional ton. |