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Keys v. Steamboat Ambassador.

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over while swinging round from the boat, and just after it was struck by the Ambassador, the iron would be deposited in the bottom of the river, in the precise position described by the witnesses. Nor is it possible to account for its being so found, upon any other hypothesis than that which I have indicated. It is true the respondents have attempted to show that the upsetting of the barge did not take place for some time after the collision; and that after the collision the Landis went out further into the river, and in making its landing, with the barge in tow, it upset near the shore. It was undoubtedly important for the respondents to prove these facts, and thus to invalidate the evidence of the libellants sustaining their theory. But the proof, as I think, shows beyond controversy, that the barge did upset immediately after it was struck, while swinging toward the shore. And, if the respondents' witnesses are not mistaken in saying they saw the barge in tow of the Landis for some time after the collision, they must have noticed it when hanging to the boat after she upset, in the reversed position described by some of the witnesses for the libellants.

It would seem, then, that the evidence fully warrants the conclusion that this collision occurred some two hundred yards above Judge Huntington's house, and not exceeding seventy-five yards from the Indiana shore. It is most obvious that one of the boats was in fault, in being at the point where the collision happened; and the only remaining inquiry is, to which does the fault attach.

A large number of witnesses, experienced in the navigation of the Ohio river, have been examined as to the proper course of a down boat from Hawesville to Troy. There is some difference of opinion on this point, but the weight of evidence sustains the position that in a high stage of water a descending boat should keep near the middle of the river, without any regard to the channel. There can scarcely be a doubt that this course is not only in accordance with the usages of navigation, but sanctioned by reason and common

It has been before noticed that the evidence estab

sense.

Keys v. Steamboat Ambassador.

lishes clearly that there was at least eighteen feet of water over all the bars along the Troy Reach. Yet the pilot of the Ambassador, according to his own statement, was shaping out, or following the channel, and he admits he was running within two hundred yards of the Indiana shore at the time of the collision. The river there is more than seven hundred yards wide; and keeping in the middle of the river, or near it, he would have been from three hundred to three hundred and fifty yards from either shore. It was, then, a great error in the pilot of the Ambassador to leave the middle region of the river, in pusuit of the windings of the channel It was objectionable as involving unnecessary increase of the distance run, while it added to the chances of collision with ascending boats. And it follows that pursuing this erroneous course of navigation, even if it be conceded that his boat was not nearer than two hundred yards from the Indiana shore, he had no right to signal as he did, by one tap of his bell for that shore. If, as the libellants' witnesses prove, the Landis was near that shore when this signal was given, it was palpably wrong for the pilot of the Ambassador to attempt to take the starboard side. Or, if the truth is as stated by some of the officers on the latter boat, that the Landis was seen quartering across from the Kentucky side, it was the duty of the Ambassador to have passed to the left, and astern of the Landis. Upon either of these suppositions, there was fault in the navigation of the Ambassador, and to that fault the collision in question is clearly to be traced.

It is insisted, however, by the respondents, that the pilot of the Landis, by answering the Ambassador's signal with one tap of the bell, gave his assent to the claim of the latter boat to take the starboard side. It is true, beyond question, that the Landis gave this response to the signal from the other boat. But was it an error or a fault which shall make that boat liable, in whole or in part, for the consequences of the collision ? According to the views

Keys v. Steamboat Ambassador.

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indicated, the Ambassador was greatly in fault in attempting to follow the channel of the river, and thereby getting near the Indiana shore. The pilot of that boat had, therefore, no right to signal for the starboard side, nor was there any obligation on the ascending boat to respect it. The pilot of the Landis, it is true, did respond to the signal, by one tap of its bell, thereby indicating his willingness that the descending boat should go inside, if it were practicable. Under all the circumstances, I am not able to perceive there was any error in this course. It is conceded in the case, and the fact is proved by the witnesses for both parties, that when the signal was first given by the Ambassador, the boats were so near that a collision was inevitable. The pilot of that boat, pursuant to his signal, was quartering to the Indiana shore; and this accounts for the proximity of that boat to that shore at the time of the collision. The pilot of the Landis, seeing this, very judiciously decided to reply to the signal by one tap of the bell; not thereby admitting the Ambassador's course of navigation was right, nor with the expectation that the collision could thereby be avoided, but with the hope, from the angle at which the boats would come together, that the injury would be less serious. The helm of the Landis was therefore put hard up, the effect of which was to throw the head of the boat quartering to the Kentucky shore. It is clear this movement did not lead to the collision, nor does it imply fault on the part of the pilot of the Landis ; especially when viewed in connection with the fact that the order had been promptly given and executed to stop and back the boat.

It is also insisted by the respondents that the pilot of the Landis violated a rule of navigation in not having first given the signal, by two taps of its bell, to indicate which side of the river he wished to take, and that his failure to do so was a palpable fault, sufficient to make the boat liable for all consequences. It is in proof, by the evidence of the pilot of the Landis and others on that boat, that

Keys v. Steamboat Ambassador.

this excuse.

the view from the pilot-house in front of the boat was seriously obstructed by the smoke and steam driven forward by the wind, and that he was thus hindered from seeing the descending boat till so near that a collision was certain. It is not necessary to pass on the sufficiency of

There is another ground on which it is clear the pilot of the Landis is not censurable in the particular referred to. The conclusion has been already stated, that the evidence proves that the Landis had chosen, and was running the Indiana shore in the proper place of an ascending boat when the collision occurred; also that the Ambassador had improperly left the middle of the river, and was, running near that shore, out of its proper place. The ascending boat would not, of course, be on the lookout for a descending boat in such a position, and is not chargeable with negligence in not sooner seeing it and giving the signal for the Indiana shore. The rule requiring the up-stream boat to give the first signal to indicate its choice of sides, does not apply when there is eighteen feet of water above all the bars. The rule must have a rational interpretation, and applies only to a stage of water so low as to make it necessary that both the ascending and descending boats should follow the channel of the river. It has no application when the up boat can safely keep the shore, and the down boat the middle of the river, irrespective of channels. It would be absurd to require the ascending boat, while going up in its proper place near the shore, without any purpose of changing its line of navigation, to announce, formally, by signal, its wish and intention to continue its course. The down boat, seeing the position of the up-stream boat, would conclude, without a signal to that effect, that the pilot intended keeping

a up the shore. The paramount law of navigation giving the ascending boat either shore, and assigning to the down boat the middle of the river, is not abrogated by a rule intended for a state of facts entirely different from those contemplated by the rule.

Morris v. Barrett.

But not deeming it necessary to pursue this investigation further, I will state as the result of the views indicated: 1. That there is no sufficient ground for a decree against the libellants for the injury sustained by the Ambassador in this collision, or for a division of the entire damages on the ground of mutual fault in the boats. 2. That the pilot of the Ambassador was in fault in not keeping his boat near the middle of the river, and in running too near the Indiana shore. 3. That, being thus out of place, he had no right to signal for the starboard side, but should have taken the larboard, whereby the danger of collision would have been avoided. 4. That the immediate cause of collision, and the consequent injury to the libellants, is attributable to this faulty navigation of the Ambassador; and that boat must be held liable for the loss and injury resulting from it.

The evidence affords the data for ascertaining the amount for which the decree is to be entered, on the basis stated, without a reference to a commissioner. A decree will be entered in accordance with these views for the amount of loss sustained by the libellants, as proved by the testimony.

(CIRCUIT COURT.)

John C. MORRIS V. SILAS M. BARRETT AND JABEZ M.

WATERS.

In the construction of a patent, the patentee is not to be confined to the

summing-up or "claim," but the specification, the whole specification, and the drawings may be referred to, to ascertain the extent of the claim of the invention, or the proper meaning of expressions

used in the “claim." It is competent for the patentee to embrace two improvements on the

same machine in the same patent, and if the defendant has used both or either of the improvements, there is infringement.

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