because of the improved rollers, covered by the thin muslin fabric, could not hold as infringers those who substituted for that roller one covered by a thick woolen fabric. That decision was, it seems, carried to the circuit court of appeals and affirmed. Troy Laundry Mach. Co. v. Adams Laundry Mach. Co., 19 C. C. A. 505, 73 Fed. 301. An application was then made for a reissue. The application was granted and the patent was reissued March 2, 1899. The reissue is, therefore, 10 years subsequent to the original patent. An effort is made in the present suit to hold as infringers those who use structures, which both the circuit court and the court of appeals have held to be outside of the claims of the original patent. In other words the reissue seeks to sweep into the net of the patent structures which the courts decided could be used with perfect propriety. I think there can be no question that the claims are broadened. Take the first claim for instance: "In a dampening machine for laundry purposes, a pair of rollers each having a nonabsorbent, elastic body or periphery, and an absorbent covering of limited capacity and arranged to run in connection with each other in combination with separated water-supply rollers, and with means for regulating the contact pressure of said rollers, substantially as and for the purpose specified." This language is unquestionably broader than the first claim of the original which provides that the rollers shall be covered by a thin textile fabric. "An absorbent covering of limited capacity" is a much broader designation than a covering of "thin textile fabric." It seems to me, therefore, that this attempt to cover, by the reissue, machines which, from the date of the original patent up to 1899, might be used and were used with perfect safety, is one which has been denounced by all of the recent decisions of the supreme .court, and by "recent" I mean the decisions which began with Miller v. Brass Co., 104 U. S. 350, 26 L. Ed. 783. As I read these decisions they strike at and condemn precisely what has been done in this case. I am clearly of the opinion that the bill must be dismissed. CAPILLO v. BRISTOL PACKING CO. (District Court, N. D. California. December 20, 1901.) No. 12,482. SEAMEN-INCOMPETENCY-RIGHT OF MASTER TO DISCHARGE. The fact that a mariner is found after trial not to be competent to perform the service for which he engaged in a satisfactory manner will not justify the master in discharging him in a distant port, before the expiration of his terms of service, but he may be put to a different service, and a proper deduction may be made from his wages. In Admiralty. Libel by seaman to recover wages. H. Digby Johnston, for libelant. H. W. Hutton, for respondent. DE HAVEN, District Judge. It is shown by the evidence that the libelant was not competent to properly discharge the duties of wok, for whit unrice be shipped. The mane of the We kat not, however, matified in decharging the beam in a port in Alaska for that reason. The contract of the Chelam serve as cork on the Geneva for the round trip from San Franc to Bristol Bay, in Alaska, and return. "When a mariner courrats for a particular service or duty on board a vessel, be engages to for fidelity in the performance of that duty, and for that capa those qualities which will enable him to perform the service ma satisfactory manner. If the master finds, upon trial, that ther on the part of the man either a want of fidelity or a want of capam which disqualifies him for the service, he will be justified in ring him upon a different duty. And in such a case the master be justified, not in refusing altogether to pay him wages, but in ing from them a reasonable deduction." Sherwood v. Melosh, Ware, 109, Fed. Cas. No. 12,778. And in Curt. Merch. Seam. p. 122. it is said: "Incompetency for the station contracted for is not, however, by the gener maritime law, a valid reason for a discharge in a foreign country. The mariner may be degraded, or his compensation may be diminished: but I apprehend that the French rule (if it be one) is an exception to the re universal rule, and that a merely innocent incompetency is not alone a sufficient ground for dismissing the seaman altogether from the service of the vessel," The fact that the port where libelant was discharged was not in a foreign country is not sufficient to render the rule just stated inap plicable to the present case. The clause in the shipping articles giving to the master or agent of the defendant the right to discharge the libelant for a failure to properly perform the duties for which he shipped was not read or explained to the libelant, and is not binding upon him. The defendant contracted to pay the libelant the sum of $50 per month for the round trip, but, on account of libelant's inability to satisfactorily discharge the duties for which he was employed, a deduction from the amount agreed upon should be made. In my opinion, the libelant is entitled to recover for the whole time for which he was shipped at the rate of $35 per month, and upon this basis he is entitled to a decree for the sum of $107.50 and costs. 1.et such decree be entered.. THE MARECHAL SUCHET. (District Court, N. D. California. December 20, 1901.) No. 12,135. SHIPPING- DAMAGE TO CARGO-SEAWORTHINESS. A ship, just prior to her leaving Liverpool for a voyage to San Franelsco, had carried a cargo of wheat from Portland, Or., to Ireland, and delivered it in good condition. In Liverpool she was inspected by competent persons, and her decks found in fit condition. On the return voyage she encountered gales and heavy seas for three weeks, while rounding Cape Horn, during which she labored heavily, and her deck seams opened, admitting sea water, which caused damage to her cargo Heid, that such evidence was sufficient to sustain her claim that she was seaworthy when the voyage was begun, and that the damage was caused 2 by perils of the sea, owing to the unusually rough weather encountered;1 A In Admiralty, Suit against vessel to recover for damage to cargo. : Page, McCutchen, Harding & Knight, for claimants. DE HAVEN, District Judge. This is a libel against the British ship Marechal Suchet for damages received by a part of her cargo on a voyage made by that vessel from Liverpool to San Francisco, via Cape Horn. The defense is that the damage was occasioned by perils of the sea, and upon the evidence the only question for decision is whether or not the vessel was seaworthy when she started upon the voyage. The burden of proof that the vessel was seaworthy,, and that the damage sustained by her cargo was occasioned by perils of the sea, is upon the carrier. Seaworthiness is a question of fact, and upon consideration of the evidence my conclusion is that the Marechal Suchet was seaworthy at the commencement of the voyage; or, in other words, "that she was in a condition reasonably fit to encounter whatever perils of the sea a ship of that kind, and laden in the way in which she was, would fairly be expected to encounter during the voyage upon which she sailed," and this was all that was required to render her scáworthy. Hughes, Adm. p. 57. The facts which lead to this conclusion are that just prior to the commencement of the voyage the vessel carried a cargo of wheat from Portland, Or., to Limerick, Ireland, and delivered the same in good condition; that her decks. were inspected by competent persons at Liverpool before loading for the voyage to San Francisco, and, in the judgment of those making the examination, were in a fit condition for that voyage. If the decks were then unseaworthy, and required calking, it does not seem probable that such fact would not have been ascertained at that time. The evidence shows that in rounding Cape Horn the vessel met with almost continuous gales and high seas for about three weeks, which caused her to labor heavily, and kept her decks flooded much of the time. This condition of weather cannot be said to have been such as vessels ordinarily meet with on such a voyage, and sufficiently accounts for the opening of the seams in her deck, and the leakage of sea water, which caused the damage complained of. Without, however, attempting to state all of the evidence bearing upon the question, it is sufficient to say that in my judgment it shows that the Marechal Suchet was seaworthy at the commencement of the voyage, and the damage sustained by her cargo was occasioned by perils of the sea, within the rule declared in the cases of The British King (D. C.) 89 Fed. 872; The Sintram (D. C.) 64 Fed. 884; The Warren Adams, 20 C. C. A. 486, 74 Fed. 413; The Mauna Loa (D. C.) 76 Fed. 829-836; and The Titania (D. C.) 19 Fed. 101-105. The libel will be dismissed, claimants to recover costs. 1 What constitutes seaworthiness, see paragraph 3, note to The Carib Prince, 15 C. C. A. 388. MERRITT & CHAPMAN DERRICK & WRECKING CO. v. CATSKILL & N. Y. STEAMBOAT CO. (District Court, S. D. New York. December 18, 1901.) ADMIRALTY-SUFFICIENCY OF TENDER BY Respondent-DOCKET FEE. A respondent in a suit in admiralty, who makes a tender and deposit at the time of filing the answer, is not required to include therein a docket fee, which is only taxable, under Rev. St. § 824, when the case is determined on its merits after a hearing. In Admiralty. On appeal from clerk's taxation of costs. Benedict & Benedict, for respondent. ADAMS, District Judge. This is an appeal from the clerk's taxation of the respondent's costs. The cause arose out of a salvage proceeding in personam, in which there was an admission by the respondent of some liability, and $105 were paid into court at the time of filing the answer; $100 being designed to cover the liability, and $5 to cover the clerk's fees for receiving and paying out the money, as well as the fees for filing the libel. No docket fee was tendered or paid into court. The tender of $100 was determined to be sufficient to cover the salvage claim, and the question now arises whether an additional $20 should have been tendered and paid in. I have been referred to no decision directly governing the point and have found none. The statute relating to the matter provides for the taxation and allowance as follows: "On a trial before * * a jury, * or on a final hearing in equity and admiralty, a docket fee of twenty ($20) dollars. Section 824, Rev. St. U. S. This has been construed to mean that any final determination of the case by the court on its merits is a final hearing, carrying a docket fee. Wooster v. Handy (C. C.) 23 Fed. 49 et passim. But in this circuit a dismissal of a bill in equity on the motion of the solicitor for the complainant would not entitle the defendant to a docket fee. Ryan v. Gould (C. C.) 32 Fed. 754. Nor would the obtainment of an order pro confesso necessarily entitle the complainant to a docket fee. It would be requisite that a bill should be decreed by the court after an examination to determine whether the facts entitled the complainant to the relief demanded. Andrews v. Cole (C. C.) 20 Fed. 410. The test seems to be whether something more than merely formal action of the court is necessary, both in equity and in admiralty. Kaempfer v. Taylor (C. C.) 78 Fed. 795; The H. C. Grady (D. C.) 87 Fed. 483. In the case under consideration the libelant might, under admiralty rule 38 of this district, have withdrawn, as a matter of right, so much of the tender as the court should not deem it necessary to retain for the securement of the respondent's costs, without prejudice to its subsequent litigation for a larger amount. No action of the court on the merits of the controversy was required, and I conclude that the tender and deposit of the docket fee were not necessary. The clerk correctly taxed the respondent's costs from the time of deposit, including a docket fee, under admiralty rule 36 of this district. The taxation is affirmed. JONASEN v. KEYSER et al. KEYSER et al. v. JONASEN. (Circuit Court of Appeals, Fifth Circuit. December 10, 1901.) No. 1,034. 1. SHIPPING-DEMURRAGE-LAY DAYS-CONSTRUCTION OF CHARTER PARTY. A provision in a charter made in Liverpool for the carrying of a cargo of timber from Ship Island, excluding from the computation of lay days at the port of loading "any time lost by reason of fire, droughts, floods, storms, strikes, lockouts, combinations of workmen, or any extraordinary occurrence beyond the control of the charterers," does not apply to time lost by reason of the charterers failing to have the cargo ready at the usual place of storage, on account of a drought which was prevailing at the time of the charter, and which affected the rivers by means of which the cargoes were ordinarily brought from the interior, but did not in any way affect the delivery of cargoes from the usual place of storage to the ship. 2. SAME. A charter contained the following provision: "Demurrage to be paid for each working day beyond the days allowed for loading and discharging at fourpence per registered ton per day, and the charterers may keep the ship on demurrage ten days." Held, that the last clause did not limit the time for which demurrage was recoverable, leaving the question of damages for a longer detention to be determined by evidence, but that the stipulated rate was recoverable for each working day beyond the lay days allowed, whether more or less than 10 days.1 Appeal from the District Court of the United States for the Southern District of Mississippi. H. Pillans, for Jonasen. Jno. C. Avery, for Keyser & Co. Before PARDEE and SHELBY, Circuit Judges, and BOARMAN, District Judge. BOARMAN, District Judge. The libelant, I. M. Jonasen, owner of the bark Ingomar, instituted his suit in admiralty in the Southern district of Mississippi, in personam, to recover demurrage, and damages in the nature of demurrage, upon a charter party under which he let the Ingomar to the charterers, the respondents, Keyser & Co. The ship was 1,182 tons, registered, or thereabouts, and was chartered January 17, 1899, at Liverpool, to sail in ballast to Pensacola or Ship Island, to take a cargo of pine timber, 4 sawn and 34 hewn, for return voyage to Southampton, England. In the charter party appear the following stipulations (6, 7, and 9): "(6) Twenty-three working days are to be allowed the said merchants in which to deliver the cargo at port of loading, which is understood to mean 'actual delivery of cargo alongside,' and not to complete loading. Said cargo to be discharged at such wharf, dock, or place as the charterers or their agents may direct, with the usual dispatch, according to custom of port of discharge; lay days not to begin until the ship is in a loading or discharging berth, respectively. (7) In the computation of the days allowed for delivering and receiving of the cargo shall be excluded any time lost by reason of fire, droughts, floods, storms, strikes, lockouts, combinations of workmen, or 1 Demurrage, see note to Randall v. Sprague, 21 C. C. A. 337; Hagerman v. Norton, 46 C. C. A. 4. |