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The David and Caroline.

effect to carry her head by the tide towards the shore, and brought her against the steamer; and that, if she had tacked about sooner, she would have avoided the rocks, and the drift by the tide would have carried her across the bows of the steamer in safety. But, as respects this charge of fault against the schooner, it must be said, that the failure of the wind left the vessel in a helpless condition, and that everything seems to have been done which was fairly within the means of the master and hands. The real fault, upon the proofs in the case, is rather attributable to the neglect of the steamer in not taking instant measures to stop in the eddy, on first discovering the situation of the schooner, in the midst of these dangerous waters. If she had done so, the latter would have passed the point in safety. There was time enough for the steamer, after the schooner was seen, to have stopped in the eddy, and kept out of the tide till she had passed; but, as the steamer was going at the rate of some fifteen miles the hour, the delay was fatal. Before she could be stopped, she got into the tide, and intercepted the drift of the schooner. The decree of the Court below is reversed.


Where a carrier receives fire-clay retorts cased in straw, and not in a proper condition to be shipped with safety for any considerable voyage, he is bound to stow them with reference to their condition, if he chooses to receive them. A memorandum at the foot of a bill of lading, "not accountable for breakage," cannot excuse negligence and want of skill in stowage, whereby breakage occurs during the voyage.

(Before NELSON, J., Southern District of New York, October 25th, 1865.)

THIS was a libel in rem, filed in the District Court, to recover damages for injury to a cargo of fire-clay retorts shipped from Antwerp to New York by the brig David and Caroline.

The David and Caroline.

The District Court dismissed the libel, and the libellants appealed to this Court.

Charles Edwards, for the libellants.

Joseph H. Dukes, for the claimant.

NELSON, J. The retorts in question are hollow ware, some 24 inches wide, a half circle, and flat at the bottom; external measure, from 28 to 36 inches; height, 20 inches; hollow part, 20 by 12 inches, and from 8 to 9 feet long; weighing from 1,500 to 1,800 pounds each; thickness of the ware, from 23 to 3 inches.

It is insisted, on the part of the libellants, that the damage, which was occasioned by the breaking of the retorts, is attributable to unskillful stowage, which is denied by the claimaint. Some of the retorts were cased in wood, some in straps, and others in straw. This, it appears, is the usual way in which these articles are shipped. Most of the retorts broken were cased in straw, and were stowed across and resting upon two transverse beams in the hold of the vessel, the ends projecting over the beams some two feet. They were piled up, three or four tiers, one above the other, on the beams, without any support at the ends or middle, and, as is claimed, were broken by the weight. The preponderance of the proof is, that this was bad stowage, and occasioned the damage complained of. Indeed, the evidence is nearly all one way on this point. But, it is insisted by the claimant, that the retorts cased in straw were not in a proper state or condition to be shipped with safety for any considerable voyage; and that, if they had been cased in wood or strips, the damage, even stowed as they were, would not have occurred. But there are two answers to this objection-first, the carrier should not have received them in this condition, or, if he chose to do so, he should have seen to it that they were stowed with reference to the imperfect state of the covering and, second, the proofs show that this is not an uncommon or unusual condition in which these articles are shipped.

Tompkins v. Gage.

It is further insisted, that the vessel encountered a severe storm in the course of her voyage, in which she was thrown upon her beam ends, and that the damage was occasioned by a peril of the sea. This would, doubtless, have been a good answer to the allegations of damage, were it not for the proofs of unskillful stowage. That sufficiently accounts for the breakage of the retorts, from the weight of the incumbent tiers, without proper dunnage, upon the transverse beams of the vessel.

It is, also, urged, that a memorandum at the foot of the bill of lading, as follows, "ship not accountable for leakage, breakage, and rust," exempts the carrier from responsibility. But, the answer is, that this cannot excuse negligence and want of skill in the stowage of the retorts.

I think that the Court below erred, and that the decree must be reversed, and a decree be entered for the libellants, to recover their damages.




Where one claim in a patent claimed a combination of three mechanisms, and another claim in the same patent described and claimed the particular manner in which the three mechanisms were combined and made effective in producing the particular result: Held, that the two claims claimed the same invention.

Held, also, there being no evidence that the double claim was made with an intention to mislead, that the patent was not void because of such double claim.

A defence of want of novelty in the invention, in a suit on a patent, must be made out by satisfactory and preponderating evidence. It is not enough, to raise a doubt on the question.

A claim construed in the light of the preceding and descriptive parts of the specification.

Tompkins v. Gage.

The introduction of a mechanical equivalent, held not to relieve from the charge of infringement.

In construing a specification, as against an objection that it points out no means by which a particular arrangement can be made to operate successfully, where a mechanical equivalent is introduced in place of one feature, the specification must be read in view of the preceding state of the art immediately connected with the particular subject-matter.

Disapprobation expressed by the Court, as to the loose manner in which the specifications of patents are very often drawn up.

(Before SHIPMAN, J., Northern District of New York, October 26th, 1865.)

THIS was a final hearing, on pleadings and proofs, of a suit in Equity, founded on two Letters Patent for improvements in rotary knitting machines, one granted to Daniel Tainter, of Worcester, Massachusetts, November 30th, 1852, and assigned to the plaintiff; and the other, a reissued patent, granted to the plaintiff and John Johnson, of Troy, New York, May 15th, 1860, on the surrender of an original patent granted to them September 18th, 1855, Johnson's interest in the reissued patent having been assigned to the plaintiff.

SHIPMAN, J. The inventions alleged to be covered by these patents are of great utility and value. The bill charges the defendants with infringing both of them. As it is not my purpose to go, in detail, into the discussion of the evidence upon which the questions of fact in this controversy depend, it is important to set forth, as clearly as the subject-matter will admit, my construction of the patents, in order that the grounds upon which the decision rests may distinctly appear. This is especially necessary, inasmuch as there does not appear to have been any prior litigation of the questions involved, in which any judicial construction has been put upon the patents.

And, first, as to the construction of the Tainter patent. There are, in the specification of this patent, what purport to be two distinct claims, in the construction of which the parties materially differ. The first claim, as I understand it, is for a combination consisting of three distinct parts, and limited to them. These are, the peculiar mechanism for forming the stitches, described in the specification-the draft and take-up

Tompkins v. Gage.

roller revolved by mechanism on its axis-and the mechanism so connecting the draft and take-up roller with the peculiar knitting device, that the two shall rotate coincidently, or in unison. These three distinct members, in combination, form the organized mechanism embraced in the first claim. The second claim is, in its legal aspect, not materially different from the first. It is fuller, inasmuch as it embraces, substantially, a brief description of the particular manner in which the three parts are combined and made effective in producing the intended result. I, therefore, regard the invention as being embraced in both claims, though more fully described in the second one. The attempt to separate the invention into two distinct parts has certainly failed. The same invention described in the first claim is found in the second, and no other invention is found there. In the first it is called a combination, in the second an arrangement.

The defendants insist, however, that the fact that a single invention is made the subject of two distinct claims in the same specification-in other words, is claimed twice-renders the patent void. This objection to the validity of the patent. is placed upon what is termed by counsel "duplicity of claim," and the argument really is, that, as one claim is but a repetition of the other, this repetition destroys the patent. No authority is cited in support of this objection, and no reasons presented which give it weight or strength. None is perceived by the Court. It is clearly not like the case where two distinct inventions, relating to wholly distinct subjects, having no objects in common, are embraced in the same patent; and the objections which would apply in such a case have no application to a patent like the one now under consideration. The blemish must, therefore, be regarded as mere tautology, which, while it may make the instrument less clear and exact, does not impair its validity. There is no evidence that the double claim was made with an intention to mislead.

The utility of the invention is conceded, and its infringement by the defendants, under this construction of the patent, is not denied.

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