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notified the Insurance Company of North America, which company, it seems, had some interest in the schooner, and the tug North America, belonging to a company controlled by the insurance company, was sent down to look for the wrecked schooner. It does not appear from the testimony that she was employed by the schooner Myrtle Tunnel for that purpose, and the master of the tug North America says that "it was stated in a letter that the vessel would be found somewhere between Hatteras and Frying Pan and Lookout." It appears from this testimony that on March 23d he was "54 miles east of Frying Pan Shoals lightship. It was then dark, commencing to rain and storm. I could not see anything, and went into Lookout Bight. The wind blew 40 to 50 miles an hour." While at Lookout Bight he heard that the McCauley had found the schooner, and returned to Philadelphia. As he made search for the vessel at no point further south than on a line east of Frying Pan lightship, and looked for her only at points north of that line, and as the Myrtle Tunnel had never been north of that point, the North America would never have found her. That the master and crew of the Myrtle Tunnel abandoned her, sine animo revertendi, is not disputed. That there was a spes recuperandi on the part of the owners is probably not contested. No vessel was ever lost at sea without some hope lingering in the mind of the owners that she may be recovered. It is perhaps not important to determine whether or not the Myrtle Tunnel was technically a derelict. Mr. Justice Story defines a derelict as "a boat or vessel found deserted or abandoned on the seas, whether it arose from accident or necessity or voluntary dereliction." Another definition from high authority is this: "Derelicts are boats or other vessels forsaken or found on the seas without any person in them." Measured by this standard, the Myrtle Tunnel was a derelict. A temporary abandonment of a vessel for the purpose of providing more effectual means of saving it does not constitute a derelict, and so it cannot be held that the abandonment of the ship by the master and crew while she was lying on the shoals of Frying Pan, and her owners had made a contract for saving her, constituted her a derelict; but when those efforts failed, and she was turned adrift without a crew, without sails, and completely at the mercy of the winds and waves, she was to all intents and purposes a derelict.
In Rowe v. The Brig, Fed. Cas. No. 12,093, Judge Story says:
"There is no dispute in respect to the facts of this case, and upon these facts it is clearly a case of derelict in the sense of the maritime law, for to constitute a derelict in that law it is sufficient that the thing is found deserted or abandoned upon the seas, whether it arose from accident or necessity or voluntary dereliction. Sir Walter Scott has declared that a legal derelict is properly where there has been an abandonment at sea by the master and crew without hope of recovery. The Aquila, 1 C. Rob. Adm. 37. With the view for which the words 'without hope of recovery' are introduced, viz., to distinguish a temporary absence from a permanent abandonment, it might perhaps have been more accurate to have said, an abandonment without an intention to return, since the spes recuperandi might exist even though the abandonment were without such intention. Sir Leoline Jenkins has given a true definition in its most broad and accurate sense, when he says: 'Derelicts are boats or other vessels forsaken or found on the seas without any person in them.'"
In The Laura, 14 Wall. 336, 20 L. Ed. 813, the Supreme Court, citing the English and American cases, says:
"In the case of The Esperance, 1 Dod. 46, the claimants received a letter from the master, who, with the crew, had left the vessel, advising them of the fact, and immediately sent proper persons to take charge of her and her cargo, but before they arrived other salvors had taken the vessel, and finally brought her in and libeled her. Sir Walter Scott said it was a clear case of derelict. There was first the chance of the party sent by the claimants not finding her; and, secondly, that if found she would be a complete wreck."
In the case of The John Gilpin, Olcott, 78, Fed. Cas. No. 7,345, Judge Betts, in considering a question of derelict somewhat analogous, said that:
"She was apparently abandoned, and if her crew might have been absent to procure assistance from other vessels and more force, their ability to return to the wreck, or the chance of affording any aid after the lapse of a few hours, must, in the then condition of things, have been most dubious contingencies."
In The Coromandel, 1 Swab. 208, Dr. Lushington, in speaking of a case very similar to this, remarks:
"It may be perfectly true that the master and these fifteen men, when they had got on board the Young Frederick, and were sailing away to Yarmouth, intended, if possible, to employ steamers to go and rescue the vessel, which was at no great distance. But is not that the case every day? A master and crew abandon a vessel for the safety of their lives. He does not contemplate returning to use his own exertions, but the master hardly ever abandons a vessel on the coast without the intention, if he can obtain assistance, to save his vessel. That does not take away from the legal character of derelict."
In Rowe v. The Brig, above cited, Judge Story cites the rule as to the compensation most favored in derelict cases, and says that:
"It was the ancient rule of the admiralty to give the salvors a moiety of the property saved. This is very distinctly articulated in the Black Book of the admiralty as a known and settled rule of division, and it continued in practice at least to the close of the reign of Charles the 2d, for there is an express decree in 1683 recognizing its existence. The Aquila, 1 C. Rob. Adm. 37. I incline to believe that it was originally borrowed from the civil law, by analogy to the case of treasure found in some public place, in which case, by a decree of the Emperor Adrian, one moiety was given to the finder and one moiety to the public, which was precisely the mode of distribution in the admiralty where no owner appeared; for then one moiety was, under the grant of the crown, considered a droit of the admiralty. * * At the argument I intimated an opinion that in cases of derelict the old rule ought still to be considered as a subsisting but flexible rule, and that prima facie the salvors were entitled to a moiety, and that it was incumbent upon the claimant to establish that, under the special circumstances of the case, a different measure ought to be applied; and the opinion was given with reference to the fact that a moiety still continues the favorite proportion of judicial tribunals, if we can trust to the accuracy of reports. Upon subsequent reflection, I feel not the slightest inclination to change that opinion, and, as a limit upon judicial discretion in ordinary cases, I think it a safe and salutary rule. When I say, however, that the rule is flexible, I do not mean that it bends to every slight change of circumstance, but cases may occur of such extraordinary peril and difficulty, of such exalted virtue and enterprise, that a moiety even of a very valuable property might be too small a proportion."
In the later case of The Henry Ewbank, Fed. Cas. No. 6,376, Judge Story says:
"The District Court allowed, as we have seen, one moiety. The insurance company have acquiesced in this allowance, and so have the owners, officers, and crew of the Hope. The amount is contested by the other parties appellant, who ask for an increase of salvage, asserting that it is not sufficient to compensate them for their labors, or in proportion to the merits of the salvage service. At the argument I intimated a strong inclination to change the amount of salvage, and upon the most mature reflection I adhere to that opinion. This is a clear case of derelict, for there was an abandonment of the property animo non revertendi. In such cases the habit of courts of admiralty has been to decree one moiety to the salvors, and by the old law no more than that was ever decreed. That rule, however, has been somewhat relaxed in modern times, but still a moiety continues to be the favored, if not favorite, proportion allowed by courts of admiralty in ordinary cases. * * * It is not, however, an inflexible rule, but it yields to extraordinary circumstances, greatly diminishing or enhancing the perils and gallantry and personal sacrifices of the salvage service. But the court on all occasions has great reluctance in deviating from a moiety, and expects a very strong case to be made out, in which, upon other principles, there would be a very great disproportion between the services and the compensation, so great, indeed, as in a moral and legal view to constrain the court to deviate from it. And there is great wisdom in thus adhering to the rule, for nothing can be more inconvenient in the administration of justice, and especially of international justice, ex æquo et bono, than to leave every case open to the mere exercise of an unlimited discretion. Certainty in this case, as in many other cases, is far more important than mere theoretical propriety. Treated as a mere question of compensation for labor and services, measured by any common standard on land or at sea, the salvage of one moiety is far too high. But, treated as it should be, as a mixed question of public policy and private right, equally important to all commercial nations, and equally encouraged by all, a moiety is no more than may justly be awarded."
In Post v. Jones, 19 How. 161, 15 L. Ed. 618, the Supreme Court of the United States says:
"The case before us is properly one of derelict. In such cases it has frequently been asserted as a general rule that the compensation should not be more than one-half nor less than one-third of the property saved. But we agree with Dr. Lushington (The Florence, 20 E. L. & C. R. 622), that the reward in derelict cases should be governed by the same principle as other salvage cases, viz., danger to property, value, risk of life, skill, labor, and the duration of the service, and that no valid reason can be assigned for fixing a reward for salving derelict property at a moiety or any given proportion, and that the true principle is, adequate reward according to the circumstances of the case."
Since that opinion was delivered in 1856 there have been numerous cases in our courts. In The Agnes Manning (D. C.) 59 Fed. 481, the value of the property salved was $29,000. A moiety was awarded. In The Theta (D. C.) 135 Fed. 129, decided in 1905, a steamship bound from Norfolk to Boston, of the value of about $275,000, picked up off the coast of Delaware a lumber laden schooner, which had been seriously injured in a collision, and abandoned by her crew, and towed her to the port of New York. The schooner's main deck was under water, and with strong winds the towing was slow and difficult, requiring two and one-half days and considerable expense. The schooner and cargo was of the value of about $10,000. Onehalf was allowed as salvage.
The salvage services in this case were most meretorious; they were rendered promptly, efficiently, and skillfully, and in removing this
dangerous wreck from the pathway of commerce the salvors have performed a great public service. Authority can be found for awarding more than a moiety in extraordinary circumstances, where great danger has been encountered and great heroism displayed, and where one-half of the amount saved is an inadequate reward. While the services in this case were not unattended by certain perils, the danger was not so great nor the circumstances so extraordinary, nor is the amount to be awarded so small, as to justify a departure from the ancient rule, which is to award a moiety; for, as is admirably said by Mr. Justice Story in the case already cited:
"There is great wisdom in adhering to the rule, for nothing can be more inconvenient in the administration of justice, and especially of international justice, ex æquo et bono, than to leave every case open to the mere exercise of an unlimited discretion."
Although the rule is somewhat flexible, and may be bent by extraordinary circumstances, it is a safe and salutary limit upon judicial discretion, and not to be lightly disregarded. A court, moved by admiration for the skill and courage of salvors, and desiring to reward their services with a liberal hand, cannot in justice shut its eyes upon the rights of the claimants, who by unmerited and unremediable misfortune have already suffered such heavy losses, and should not by its decree deprive them of the small remnant that the sea has spared.
Let a decree be entered for the payment of the costs and expenses, and dividing the remainder between the claimants and the libelantsone moiety to each.
If necessary, a reference may be had to properly apportion the award among those entitled to salvage, and to fix the amount properly chargeable as expenses.
HARTFORD PRINTING CO. v. HARTFORD DIRECTORY & PUBLISH
(Circuit Court, D. Connecticut. July 3, 1906.)
1. COPYRIGHT INFRINGEMENT-USE OF DIRECTORY.
The compiler and publisher of a directory, while he may not copy and reprint matter from a prior copyrighted directory as his own, may use the same for checking up his own canvass, independently made; and where discrepancies are found, after an honest and personal investigation of the same, may publish the result as so verified as his own.
2. SAME EVIDENCE OF INFRINGEMENT-COPYING OF ERRORS.
Where, on a comparison of a copyrighted directory and an alleged infringing publication, it appears that a large proportion of the errors in the former are also found in the latter, such evidence is sufficient to refute the testimony of defendant's witnesses that the accuracy of all items in its directory was personally verified, and to show that direct copying had been done.
[Ed. Note. For cases in point, see vol. 11, Cent. Dig. Copyrights, § 76.] 3. SAME-SUIT FOR INFRINGEMENT DAMAGES.
Where the infringing parts of a directory are intermingled with other parts about which there is no evidence, and defendant makes no effort to
separate them, it must account for all profits made on the entire sales, which is the only effective relief that can be granted when complainant's directory has been superseded by a later publication.
In Equity. Suit for infringement of copyright.
Ralph O. Wells, Esq., for complainant.
Chas. E. Perkins, Esq., and Augustine Lonergan, Esq., for defend
PLATT, District Judge. This case does not stir the conscience very much, and after analysis the reason for such a condition of things unfolds itself. Under the Constitution, the Congress may pass laws which will "tend to promote the useful arts and sciences." For that purpose the present copyright law was enacted. The plaintiff invokes the law because he was 'the owner, proprietor, and compiler of a book. In so far as he may have used his brains to get up an artistic book in the way of grouping, classifying, and setting forth the facts which it contains, there would be reason in his claim; but in so far as he merely records accurately the names of residents, with their occupations, and where to find them at home and in business, it is impossible to discover wherein the useful arts and sciences are promoted. The labor involved therein is purely mechanical, and to protect the copyright affords a certain measure of monopoly in the right to make such a use of labor and money. Copyrights upon directories have, however, been cared for by the courts so many times that it would be presumptuous for me, without solicitation, to attempt a practical expression of my own views. The complainant's lawful copyright is therefore assumed, and, sternly repressing such tendencies as these suggestions would lead us toward, it will be my purpose to decide the matter upon the case presented.
Complainant issued and copyrighted its 1904 directory. Defendant came to Hartford, and made an independent canvass for a 1905 directory, which it insists was thorough, and about which I will express no opinion, except as the facts throw light thereon. Undoubtedly a strong showing at a canvass was made. After completing a canvass of such a nature, it took up the complainant's 1904 directory, and, after comparing the alleged original canvass therewith, found something like 10,000 discrepancies. Thereupon the defendant claims that it sent the canvassers over the ground again to find the reason for such differences, and to make the needed corrections, and, after doing so, published its directory, The facts, as this opinion indicates, lead me otherwise, but if upon them I could find that the defendant, unaided by the copyrighted matter, made an original, thorough, house to house canvass, and then, after comparison with said matter, made a careful, thorough search to find the reason for the discrepancies which such comparison revealed, the case would go with the defendant, because it is believed that the law permits such a use of a copyrighted directory. The complainant seriously insists that the law is not so, but the reasoning in support of the contention is not persuasive.
Complainant admits that the defendant may compare its work with the copyright, and can check to see whether the canvass has been