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one under article 11, of two sailing vessels meeting end on, or nearly end on, so as to involve risk of collision, where both are required to port. This is shown by the averments that the Willis "was approaching the Jones in an opposite direction from the course of the Jones; that, when the light of the Willis was first seen, it was almost dead ahead, and continued on that line as the vessels approached each other;" and that the Jones, seeing danger of a collision, ported, but the Willis starboarded. After the trial before the district court, the amended answer and the amended cross-libel set up a case where the Jones saw, on her port bow, the red light of the Willis; that light continued to show more on the port bow of the Jones; the Willis did not see the green light of the Jones; and, immediately before the collision, the Jones began to port her helm, but, seeing that the Willis was starboarding, changed her helm to starboard. This new theory on the part of the Jones as to her defense indicates plainly that she was conscious that her porting was a wrong maneuver, and that she undertook to account for the collision by alleging that she saw the red light of the Willis on her port bow, and that it opened more on that bow, and that the Willis, by starboarding after that, came across her path. This theory is negatived by the findings of the circuit court.
The salient facts exhibited in those findings are as follows: The Willis was sailing E. by N. The Jones was sailing a general course S. W. by W. W., steering by the wind. The collision occurred at a quarter before 2 A. M. At 12 midnight the wind was E. At 20 minutes past 1, 25 minutes before the collision, the wind was S. E. At that time, if the Jones was sailing S. W. by W. W., her course was nine points and a half from the wind, and she was not close-hauled. She could certainly, though a bark, hold the wind at seven points off. At the same time, the Willis, if sailing E. by N., was five points from the wind. The wind being a six-knot breeze, it is plain, in view of the combined speed of the vessels, that they had not yet seen each other 25 minutes before the collision. The wind was hauling to the southward, and changed the four points, to S., in those 25 minutes. If, because of that change of the wind, the Jones, to hold the wind, fell off to seven points from the wind, she would be heading W. by S., or directly opposite to the E. by N. course of the Willis.
The Willis made the green light of the Jones about half a point on her starboard bow, about three miles off, and continued to see that green light till the Jones was within a length off, when the Jones opened her red light. As soon as the Willis saw the green light of the Jones, she put her own green light against it by starboarding, and went off a point, and then steadied; that is, she headed E. N. E. It follows that she showed her green light to the Jones. This starboarding by the Willis was when the vessels were about three miles apart, and from 15 to 18 minutes before the collision, as their combined speed was from 10 to 12 miles an hour. The Jones must have seen that the Willis was falling off, and trying to get out of her way. Green light to green light was safety. When the Willis thus headed E. N. E., the green light of the Jones was one point and a half on her starboard bow. When the vessels were about two miles apart, that is, from 10 to 12 minutes, the Willis fell off one point more, to N. E. by E., and the green light of the Jones got to be two points on her starboard bow. All this time the Willis was trying to get out of the way of the Jones. She did so in a proper manner, by carrying her own green light away from the green light of the Jones, and by taking a course which did not and could not cross the course of the Jones. When the Willis thus, at two miles distance from the Jones, headed N. E. by E., the Jones with the wind S., would, if close-hauled at seven points from the wind, head no further off than W. by S. At the collision, the Willis was heading N. E., or one point more off; and the starboard side of the stem of the Jones struck the starboard side of the Willis amid-ships, at about right angles. To do this, the Jones must have headed about N. W., which was a change, by
porting, of five points from her course of W. by S., which latter course, with the wind S., would have allowed her, at seven points off, to be close-hauled, and have her sails full.
The Jones ran into danger by porting. She did not port to avoid collision or immediate danger. She ported when she must have seen all the time that the Willis was going away from her. This porting by the Jones was no part of keeping her course, and it caused the collision. It was a departure, by the Jones, from the course which the Willis, constantly seeing the green light of the Jones, had a right to think the Jones would keep, especially in view of the persistent falling off of the Willis. It was, therefore, a change of course by the Jones. It was a change, by her, across the course of the Willis to the extent of five points beyond her close-hauled course of W. by S.
Conceding it to have been the duty of the Willis, under article 12, to keep out of the way of the Jones, it was equally the duty of the latter not to baffle or prevent the efforts of the Willis to that end. Her departure from the requirement of article 18, that she should keep her course, cannot be justified under article 19, because there were no special circumstances which rendered such departure necessary in order to avoid immediate danger. In The Elizabeth Jenkins, L. R. 1 P. C. App. 501, it is laid down that, if a ship bound to keep her course under article 18, justifies her departure from that course under the words of article 19, she takes upon herself the obligation of showing both that her departure was, at the time it took place, necessary in order to avoid immediate danger, and that the course adopted by her was reasonably calculated to avoid that danger. Under article 20, the special circumstances of the case required that the Jones should be careful not to port as and when she did. Article 20 was in force at the time of this collision, although it is not re-enacted in the Revised Statutes. Why it was omitted is not apparent, as it had not been repealed. It was one of the articles in the British act of 1862, (25 & 26 Vict. c. 63,) from which our act of 1864 was taken, and it still remains an article in the regulations promulgated by the British order in council of August 14, 1879, (4 P. D. 241,) which states that it has been made to appear that the government of the United States is willing that those regulations shall apply to ships of the United States, whether within British jurisdiction or not, after September 1, 1880. We do not intend to intimate, however, that the precautions it enacts are not to be enforced as parts of the general law of navigation, though not now embodied in any statute.
The circuit court held that each of the changes recited in the findings of fact, as having been made by the Jones, was improper; and that the changes recited therein as having been made by the Willis were proper. In regard to the Jones, it is contended for her that she was at liberty to make such variations from her course as the wind rendered necessary, to enable her to keep her sails filled and keep on her port tack. It must be concluded, from the fourth finding of fact and the third conclusion of law, that the Jones was maneuvered on two occasions in such a manner as-First, to allow her sails to shake; and, second, to allow her to fall off and fill her sails; that this falling off was effected by putting her helm up or to port; and that the circuit court regarded these maneuvers as changes, and as improper ones. In view of what it is found the Willis was doing, it is plain that these changes were calculated to baffle the efforts of the Willis, by starboarding, to get away from the Jones; and that they amounted to a following up of the Willis by the Jones. though the wind had got as far as S., the Jones had no right to persist in falling off towards the Willis to an extent sufficient to produce a collision, when the Willis was all the while going away in the same direction. The duty of the Jones to keep her course did not permit her to do so in such a way as to bring about a collision with a vessel whose green light was constantly receding. There is no idea appertaining to keeping a course which justifies hold
ing to it in such way as to bring on a peril. The only principle inherent in it is to so act as to enable the other vessel, on whom the duty rests, to adopt with success means of getting out of the way.
It is apparent that, notwithstanding the alleged endeavor of the Jones to keep close-hauled, with the wind S., the Willis, by her starboarding two points, from a course E. by N. to a course N. E. by E., would have gone clear of the Jones, but for the porting of the Jones, as found in the fifth finding of fact, which carried her head around at least five points towards the Willis. The following diagram illustrates the courses and bearings of the two vessels, prior to any starboarding by the Willis and to any porting by the Jones:
It shows the Willis on a course E. by N., and the Jones on a course S. W. by W. W., five points and a half from S. At that time the vessels were three miles apart, or 15 to 18 minutes. When they were two miles apart, or 10 to 12 minutes, after the Willis had twice starboarded, and to N. E. by E., the green light of the Jones bore two points on the starboard bow of the Willis. Then, with any proper falling off of the Jones to hold a S. wind, even to the extent of seven points, or to W. by S., when the Willis was on a course N. E. by E., or two points away from the course of the Jones, there would have been no collision, if the Jones had not ported five points more.
It is contended for the Jones that the Willis should have ported, instead of starboarding. But, as she saw the green light of the Jones on her starboard bow, to have ported would have thrown her across the course of the Jones, as shown by the following diagram:
By starboarding and going away from the green light of the Jones, the Willis took a course of safety, and, in the language of the cases, "determined the risk." Article 12 applies only to cases where the vessels "are crossing so as to involve risk of collision." Even assuming, on the facts found, that these vessels were crossing, so as to involve risk of collision, when they first sighted each other, the Willis "determined the risk" when she had gone off two points by starboarding, and brought green light to green light. This is the point in judgment in The Earl of Elgin, L. R. 4 P. C. App. 1. But it is urged for the Jones that the porting mentioned in the fifth finding was a porting in extremis, and therefore excusable. The finding is not to that ef fect. The changes made by the Willis are found to have been proper and were proper. This being so, no fault of the Willis induced the final act of
porting by the Jones. To be an excusable mistake in extremis, a pardonable maneuver, though contributing to or inducing a collision, when the maneuver would have been faulty if not excusable, it must be one produced by fault or mismanagement in the other vessel. New York & Liverpool U. S. Mail S. Co. v. Rumball, 21 How. 372, 383; The Nichols, 7 Wall. 656, 666; The Carroll, 8 Wall. 302, 305; The Dexter, 23 Wall. 69, 76; The Bywell Castle, L. R. 4 Prob. Div. 219. The last case is a well-considered judgment by Lords Justices JAMES, BRETT, and COTTON, in the court of appeal, and the rule there formulated is that "where one ship has, by wrong maneuvers, placed another ship in a position of extreme danger, that other ship will not be held to blame if she has done something wrong, and has not been maneuvered with perfect skill and presence of mind."
On the whole case we are of opinion that the decree of the circuit court must be affirmed, but without interest on the amount of that decree.
(112 U. S. 624)
UNION METALLIC CARTRIDGE Co. v. UNITED STATES CARTRIDGE Co.1 UNITED STATES CARTRIDGE Co. v. UNION METALLIC CARTRIDGE Co.1 (December 22, 1884.)
1. PATENTS FOR INVENTIONS - MACHINE FOR MAKING PERCUSSION CARTRIDGE CASESREISSUES 1,948, 1,949.
Letters patent No. 27,094 were issued to Ethan Allen, February 14, 1860, for 14 years, for an "improvement in machine for making percussion cartridge cases.' The patent was reissued in two divisions, No. 1,948 and No. 1,949, May 9, 1865. No. 1,948 embraced that part of the invention which concerned the mechanism for striking up the hollow rim at one stroke. The original patent and drawings showed such mechanism to be a moving die and a fixed bunter. In No. 1,948 the description was altered so as to state that the bunter might be carried against the die, and its two claims each contained the words "substantially as described." An extension of No. 1,948 having been applied for, it was opposed, on the ground that such arrangement of a fixed die and a moving bunter was a new invention interpolated into the reissue. The commissioner of patents so held, and required such new matter to be disclaimed, as a condition precedent to the extension. A disclaimer was filed, disclaiming the movable bunter as of the invention of Allen. No. 1,948 was then extended by a certificate, which stated that a disclaimer had been filed to that part of the invention embraced in such new matter. In a suit in equity, afterwards brought on No. 1,948, against machines having a fixed die and a moving bunter, for infringements committed both before and after the extension, held, that the effect of the disclaimer was to exclude those machines from the scope of any claim in No. 1,948, without reference to the question whether they contained mechanical equivalents for the moving die and the fixed bunter.
Allen had not, before the granting of the original patent, made any machine in which the die was fixed and the bunter movable; and it was never lawful to cover, by the claims of a reissue, an improvement made after the granting of the original patent.
3. SAME-ACTS OF JULY 8, 1870, CH. 230, ? 54.
Under section 54 of the act of July 8, 1870, c. 230, (16 St. 205,) a disclaimer could be made only by a patentee who had claimed more than that of which he was the original or first inventor or discoverer, and he could make a disclaimer only of such parts of the thing patented as he should not choose to claim or hold by virtue of the patent.
4. SAME-REISSUE, WHEN NECESSARY.
In so disclaiming or limiting a claim, descriptive matter on which the disclaimed claim was based might be erased; but if there was merely a defective or insufficient description, the only mode of correcting it was by a reissue. The decision in Leggett v. Avery, 101 U. S. 256, cited and applied.
An acquiescence and disclaimer on a decision requiring the disclaimer as a condition precedent to an extension, are as operative to prevent the afterwards insisting on a recovery on the invention disclaimed, as to prevent a subsequent reissue to claim what was so disclaimed.
1S. C. 7 Fed Rep. 344, and 8 Fed. Rep. 446.
Appeals from the Circuit Court of the United States for the District of Mas. sachusetts.
Causten Browne and Edmund Wetmore, for Union Metallic Cartridge Co. B. F. Butler and F. P. Fish, for United States Cartridge Co.
BLATCHFORD, J. Letters patent of the United States, No. 27,094, were issued to Ethan Allen, February 14, 1860, for 14 years, for an "improvement in machine for making percussion cartridge cases." A reissue of this patent was granted, in two divisions, No. 1,948 and No. 1,949, May 9, 1865, the application for the reissue having been filed April 7, 1865. The specification of No. 27,094 set forth two improvements: (1) An arrangement or mechanism to trim the open end of the case of the cap-cartridge, to make the articles all alike and true; (2) striking up or forming the swelled end to form the recess for the priming, as shown at Z, from that of Y, at one stroke, in distinction from spinning them. There were two claims in No. 27,094: (1) The trimming mechanism; (2) striking or forming the hollow rim at one stroke or operation. In reissuing the patent, the trimming mechanism was made the subject of No. 1,949, and the other improvement, (the subject-matter of claim 2 of No. 27,094,) was made the subject of No. 1,948. This suit is brought for the infringement of No. 1,948 alone. So much of the specification and claims of No. 27,094 as relates to the subject of No. 1,948, is copied below on the left hand, and the specification and claims of No. 1,948 are copied below on the right hand, the parts of each not found in the other being in italic:
Original. No. 27,094.
"Be it known that I, Ethan Allen, of the city and county of Worcester, state of Massachusetts, have invented certain new and useful improvements in machinery for making loaded caps or cap-cartridges; and I hereby declare the following to be a full, clear, and exact description of the construction and operation of the same, reference being had to the accompanying drawings, in which Fig. 1 is a top view or plan, and Fig. 2 a side view; the same letters indicating the same parts in both.
"My improvements relate to the construction or formation of the case of the cap cartridge in the form shown at Z, or nearly so, and consist * in striking up or forming the swelled end to form the recess for the priming, as shown at Z, from that of Y, at one stroke, in distinction from spinning them, as has heretofore been done.
"The construction of my improvements, as shown in the drawings, is as follows: J is the driving pulley to receive motion, and its shaft is provided with cranks or eccentrics at each end, to which the rods, H and H', connect, the shaft turning in suitable bearings in the frame or base, K.
Reissue. No. 1,948.
"Be it known that I, Ethan Allen, of the city and county of Worcester, and state of Massachusetts, have invented certain new and useful im
provements in machinery for making loaded caps or cap-cartridges; and I hereby declare the following to be a full, clear, and exact description of the construction and operation of the same, reference being had to the accompanying drawings, in which Fig. 1 is a top view or plan, and Fig. 2 is a side view, and pertains to a machine which is the subject of another reissue of these letters patent.
"My improvements relate to the construction or formation of the case of a metallic cartridge, and consist in an arrangement of mechanism for forming or striking up the swelled end to form the recess for the priming, as shown at Z, from that of Y, at one stroke or operation, in distinction from spinning them, as has heretofore been done.
"The construction of my improvements, as shown in the drawings, is as follows: K is the base of the machine; J, the driving pulley, which is provided with a crank or eccentric, to which the rod, H', is connected; F is a slide receiving motion by H', and moving in ways, G, G, carrying the