and the master has filed his report, finding that· the damages sustltined by the infringement of the patent amount to $2,883.31 in the aggregate. of these machines, There is no contest ovei' the damages as to it bein,g conceded that the royalty which the defendant had been paying upon machines under a license to use theRe two patents is a fair compensation for the damages sustained by the construction of these seven machines, and, therefore, as to $1,183 of the damages rep.orted there is no contest. But the controversy in the case is over thirteen machines made after the expiration of the license to use these patents, and which the defendant constructed under a patent which had been granted to aI1otherpatenteee for a pile-driver. The master has found that these thirteen machines infringe one claim of each of the complainant's patents, !lnd I, after an examination of the proof sUbmitted, concur with the conclusions of the master in that regard. An elaborate brief is filed by the defendant in which the validity of these claims is called in question, but that question I do not consider as open upon the consideration of damages, and, if it were, I see no reason for changing the ruling made at the hearing of the case. The master's report is confirnwd. and the full amount of damages awarded, $2,833.31, and the costs in the case.
(lJistric.t Oourt, S. lJ. ]i'lorida.
June 26, 1889.)
PILOTAGE-HAT,F PILOTAGE-SPEAlnNG VESSEL.
It is the duty of a pilot, in speaking a vessel for pilotage, to use such signals as are ordinarily in use to denote the presence of a pilot and the offer of services, in order to inform the master of his character, and give him an opportunity to accept or reject them, Such signals should be made seasonably, so that the officers of the vessel may see them. In the absence of such signals, the burden is upon the pilot to show that his hail and offer were heard and understood.
Where the pilot left his pilot-boat anchored two and a half miles from the channel, and came with a small boat, showing no light, until within from one to three hundred feet of the steamer, and no flash-light until the steamer had passed and left him abaft the beam, so that such flash was not seen by any of the officers of the steamer, nor the pilot's hail heard by those on the steamer, fwld, there WllS no such speaking as would entitle hiin to pilotage. (Syllabu8 by the Court.)
In Admiralty. Libel for half pilotage for not accepting services of a pilot. L. W. Bethel, for libelant. G. Bowne PaUerson, for respondent.
LOCKE, J. This is the thirdsUoit for half pilotage against this 'vessel, the. Mascotte, wherein the same principles and questions are involved'. In the nrst two cases no opinions were filed, but the conclusions of law and fact briefly stated from the bench, and are merely referred to here to show the opinions upon the different state of facts found in the three cases. The act of Florida of February 2.7, 1872, provides that all steamers orvesElels entering or leaving any port of this state shall pay to the pilot who shall ,first speak said steamer or vessel the regularly established but that all vessels carrying the regular United States rates mails shall pay half pilotage only. The Mascotte carried the regular mail, and would therefore pay no more when employing a pilot than when spoken and not accepting his services. The question in these sev'eral cases is what constitutes" a speaking" of a vessel, within the contemplation of the law, and was this vessel spoken on the several occasions? The relations existing between the masters of vessels and pilots under the so-called" Compulsory Pilotage Laws" are peculiar. It has been frequently held that although not, strictly speaking, a penalty for not employing a pilot, it is a gratuity, with no direct benefit rendered or service demanded I and therefore requires a strict construction as against the pilot. The pilot's and master's duty are reciprocal,':-the pilot to be there and offer his services, and the vessel to pay whether his services are accepted or not. But, in order to justly demand of the master of a vessel a compensation for being on hand and offering his services, the pilot should offer them in a way which would not only be an ofrer on his part, but which must be so made as to be understood as such by the master. The simple term "speaking," without further construction or explanation, cannot be accepted as expressing the will, intention, or design of the legislature. The pilot might speak a vessel, and ask any numbcr of questions. What port she is from? what was her cargo? or, how long they had been on the voyage? any of which would be a speaking, but no one would for a moment consider that this was such a speaking as is contemplated or required. The statutes of different states use different language in providing for the speaking of a vessel by a pilot. In New York, the term "offering his services" or "tendering his services" is used. In Pennsylvania, he "shall offer himself." The vessels going up the Delaware river must pay half pilotage for "refusing or neglecting" to take a pilot. In Korth Carolina the vessel" pays pilotage for refusing to take a pilot;" and in Louisiana, for "refusing to take a pilot when one offers." But there can be no question but what the legislatures of all states had one idea in common, and meant a plain and distinct offer by the pilot of his services, so made that the master of the vessel could have it within his power to employ or refuse him. Anything less than that would lead to an injustice and hardship that no court could sustain without the most positive enactment. , I have been referred to one case in which the construction of the term "speaking" has been attempted, but which has left the question in but little better condition, if any, than before.. The Ullock, 19 Fed. Rep. 207.
In that case the pilot commissioners declared that the speaking of a vessel or the offer of a pilot's services on the bar should be construed to mean either the usual form of hailing, or the usual code of signals, withant declaring what the usual code of signals was understood to be; but the commissioner, in testifying, stated that he understood the ofrer to be customarily made in the day-time by "putting her head down towards the ship, and a blue flag," and" at night by burning a flare." That case was determined upon the fact that the pilot-boat was beyond the distance which had been determined by the commissioners, so that the question as to the usual code of signals was not involved; and what the learned judge would have hE'ld necessary under other circumstances is uncertain. But it is stated in the opinion that the usual signals by which an offer of pilot service is made in the day-time is a flag at the mast-head, in this country the modification of the country's flag known as the "jack," and that "the burning of flare-ups or a flashing light, over th'e side of the boat at short intervals, is also the customary method of making an offer of pilot services at night," but whether an offer, where these customary methods are disregarded, would be considered sufficient, is uncertain. These ordinary customs and rules or regulations, whether established by use for an indefinite period of time or direct legislation, show plainly that one thing has been aimed at,-the distinguishing of pilot-boats as a class from any other class of vessels. In most ports of importance they are licensed,numbered, and their numbers painted on their sails. They have their distinguishing flag, the jack, by day, and their distinguishing light, the flash, unlike any other class of vessels, by night. These are the ordinary distinguishing marks for which every master looks when desiring one. . The" speaking" it could never have been intended should be left to the uncertainties of the human voice. Nor could every master be presumed to stop and pay attention to the hail of every small boat in entering a port, to ascertain if it is a pilotofl'ering his services, unless there is some disdnguishing signal. It is true, as was remarked by the learned judge in The Alcalde, 30 Fed. Rep. 133, that "it mattered not to the master to whom the pilot offered his services on the pilot-ground how he got there. He may have trusted to a canoe, or even swam out. If he is on the ground. and ready and capable of taking charge of the vessel, that is all the master can require." But the master is entitled to the full knowledge and information that it was a pilot'speaking for pilotage, and where the question is whether there had been a sufficient speaking and offer of services, when the testimony shows the hail was not heard on board, I am satisfied that the visible surroundings of the pilot should have much weight in determining it. And onespeaking from a regular pilot-boat, with a jack flying by day at a and flash-light at night, would be recognized, when the canoeist or swi.mmer would be disregarded. Where the pilot uses all the usually accepted and ordinary means of conveying information of his character, the burden of proof'1s on the master who claims that the speaking. hailing, or offering was not sufficientto give him the necessary knowledge; but where all the ordinary
and generally accepted menrisare neglected, or, as it appears in this case, an attempt made to .conceal the character of the piloi,ul1til speaking alone might betray it, the burden is upon the pilot to show satisfactorily that the master understood· him, and had an opportunity to accept or reject his services. ; In the first case mentioned (Acosta v.The it appears that the anchored in or near the channel, at l1iaht without any light, but that the pi1<;lt went off on a small boat, aml, the steamer came by, hailed it. The master said that he saw a vessel anchored there withQut any light, and so reported to the ofIicers of thecuf:ltoms, upon arriving in port, but that he had no knowledge that it was a pilotboat; that he saw a small boat, but. heard no hail, nor did the officer on the bridge, the lookout, or the quartermaster kn\)w of the steamer's having been spoken by a, pilot. The small boat had a plain white light, which it showed a short time before the steamer passed. In the second case, (Shaw v. The Mascotte,) the pilot-boat lay in back of Sand Key, with an anchor light up, but showing no other light, and when the Mascotte was seen coming the pilot went off in a small boat, some over a mile, to speak her. This small boat was seen in the channel, and, just as the steamer approached, showed a lantern. The pilot says he put his hat over it occasionally to make it a flash-light, and hailed the steamer as she passed; but all of the witnesses, officers and men, on the deck of the steamer, testify that they heard no hail, nor anything that could be understood, and that they had no knowledge that it was a pilot. In these cases, I considered that there had been a willful concealment of the character of the pilot-boat, and that the evidence was not enough to show the bringing home to the master the knowledge of the offar of his services sufficiently to compel the payment of the compUlsory pilotage, and therefore dismissed the libels. In this case a new question of fact arises. The pilot-boat was an-chored back of the Eastern dry-rocks, two and a half miles from the ,channel where the steamer was expected, and a dingy-boat, with a pilot and two men, sent Qut from Sand Key light, a light-house station :about half way between where the pilot-boat was lying and the channel where the steamer was expected. 'fhe pilot says he had a bright white light,-a lantern ,-which he showed all the time, and a flash-light, which he showed just as 11e came to the steamer. He says the white light was a lantem which he held in his hand so it could be seen all around; that. the flash was a regulal; flash-light; that he displayed it once, dipping .it down two or three' seconds, so as to make it show plainer; that the steamer was. passing when he last displayed it. He says he 100 feet off the Lj1teamer's port bow when he first showed .the;flash-light. Weltus, one of the pilot's crew, with him in the aays they went .off in the boat, and stopped until the steamer came up abreast of them. . Then they spokehllr. The captain held the lantern up In his hl,l.nd.'1'h.e flashclight was used once,-dipped once and shown twice. He were 100 or more feet away when they displayed these lights. .W\lliams, another of the ,crew, testifies to the
same. The master of thll Mascotte says, as they were coming to the westward of Sand Key,' he saw nothing but the three light-hollses until he saw a dark object in the water; that he thought it might be the Western dry-rocks; that he took his glasses and saw it was a row-boat; \,hat he saw a man take a light from the bottom of the boat and hold it up, but he heard nothing; that there was no light shown until' the boat was abeam of the ship; that when he first saw the boat it was two points forward of the beam, but there was no light there; that he was on the bridge, and could have heard anything said, but heard nothing; that ther'l was no pilot-boat in sight or light seen on any vessel; that all the light he saw was the one the man took up from the bottom of the boat, and held up; this was not until the boat was abeam of the ship; that there was no flash shown, that he saw. The second officer of the Mascotte says that he was on the bridge with the captain; that the captain saw the boat first; that it was just a little ahead on the port bow; just as they got up very nearly abreast of the boat, a little forward of the beam, he saw a white light; saw no light before; this was the only light heaaw; that he was looking at it continuously, and, had there been a flash-light, he would have seen it; that after it went abaft the beam he did not turn to look at it; tl')at he looked at it all the time until it got abeam; that he did not know that there was a pilot there: The watchman on the port bow says he saw something black, about 100 or 150 yards on the port bow; when it got abreast of the beam he saw a bright white light; there was no other light; no flash-light; that he looked at it continuously until it was abaft the beam; then he did not see it any more; that he did not hear any hail from the boat. The light-keeper at Sand Key says he saw the boat when near the Mascotte; that he saw the light; a white light first; then a flash-light; then the Mascotte hid the 'lights, and, as she passed, he saw the lights again; that he was about one and a quafteror one ahd a half miles distant; that he first saw the lantern light, then the flash, before the Mascotte and boat came together; that he saw the flash-light again; he cannot say whether once or t .vice afterthe Mascotte passed. In this condition of the testimony, what can be accepted as the true state of facts? When was the flash-light shown? for, viewed from the standpoint of the respondent, this may be considered an important question in the case. According to the testimony of the pilot and crew, it was off the bow, orwhenl it must have been seen by the officers of the steamer; but 'they swear positively that there was no flash shown-nothing but a: white lantern light-until the boat had passed abaft the beam. Their business was forward, and not aft, and they naturally paid no attention to what they had passed, and therefore,saw no flash. The testimony isdirectly contradictory in this respect, and where has been the mistake, if any? I thought at first that the testimony of the lightkeeper at Sand Key would determine the question, but, upon considering the course the vessel was steering, and the direction the light-house bore from her, it appeal's that a light could beetlen from the lighthouse in a range foi"\'I'ard of the bow of the steamer when abaft her'beam) if
the light was,.as far from the steamer as those :onthe .steamer testify; or -that the steamer would not necessarily :S4\lto,ut. th!il' light, until it had passed quite a little distu,nce:ahead of it.. So t.\lis testimony can have no conclusi\'e weight, and question of the probabilities of enol' must be considered. The testim9ny of the officet's of the steamer that there was no flash shpwnwhile the boat WllS in their sight is so direct and positiye, they so entirely disinterested, as far as any profit or advantage' could come to theQl,' and otherwise apparently entitled to the utmost confidence, that. it should require fully as positive and testimony on the opposite side to overcome the strong presnmption of the truth of their statements. The pilot says that he spoke the steamer, and received no answer; that they heard people talking on deck; that he showed the lantern and the flash-light when they were off the port bow. Weltus says that they waited until the steamer came up abreast of them, when they spoke. her, and the captain held the lantern up in his hand, and showed ,the flash. Williams says that t.hey were about 100 feet from tbe Mascotte when they showed the lantern and the fl:tsh-light. The pilot also stated, hefore any question of the time when the lights were shov''l had arisen, that when the flash was being shown the second time the steamer was passing them. If there could be any question of judgment as to the positien of the boat to the steamer, those on board the steamer could judge more accurately than those in the boat. I can come to but one conclusion,-,that the pilot permitted the steamer to approach as near as he considered safe in order to speak her; then ciisplayed the lantern, and as soon as he could displayed the flash,light; but that from some accident, loss of matches, or other cause there was a delay in lighting the torch until the steamer, going very rapidly, had passed and left them abaft the beam. I have no doubt but wh9t they commenced to make a display of the torch when, perhaps off the bow, but I am satisfied it was not finally displayed until too late to be seen by the master or officers. I cmmot give a shadow of truth to the entire testimony by any other supposition, not able to bring myrpind to disbelieve the testimony of those on the steamer that there was no flash-light within their sight. What is the legal effect of this condition of factl'J? Tam satisfied the flashlight was not displayed until the boat was so far abaft the beam of the steamer that the master did not !>ee it. Nor was it flashed so that with due diligence he could have seen.it. The rule for the of a pilot-boat (article 11, § 4233, Rev. St.) is a flash-light every 15 minutes. The signal as recogniz E3 d in The Ullock, and with which I heartily conI(ur, is a flash at frequent intervals. rhe pilot says he saw the steamer ,eoming some 15 miles off; but, making all allowance, she must have been in sight from half to three,quarters of an hour at the least, and no light was shown, according to his own statement,. until he .\V.as within about 100 feet, or, the of those on the steamer, 100 yards; and I am satisfied no flash-the light to distinguish the boat as containing a pilot-was shown. until she was too far abaft the. beam to be seen by those in charge of the steamer. The flash was to denote the character of the boat, and should have been shown from the small boat, if that
WELDT V. THE HOWDEN.
had been taken for the service, as well as from the large one, and in season to show his presence. I do not consider the claim forpiJotage against any vessel entering one of the larger ports of our couptry, inade under the same circumstances, speaking from a small dingy-boat, with no distinguishing marks or signals, would be entitled to any consideration, and the argument that the master should have presumed it was a pilot because it was not probable that any other small boat would be out there at that time of the night cannot be accepted. I do not consider the libelant used the ordinary customary signals in time to make his presence and character known to the respondent; and the testimony is positive that the hail was not heard on board, and there was therefore no legal and sufficient speaking to justify judgment. The libel is therefore dismissed.
(District Court, S. D. Galifo1·nia.
September 11, 1889.)
Where it appears that such bay and the p\?rt of Wilmington have always been locally regarded as identical, and that congress. by legislation, has recognized San Pedro as a port, and changed its name to that of the port of Wilmington, andreferred to the bay as the bay of Wilmington. such bay will be held a port, within Pol. Code Cal. § 2436, providing for compensation to pilots at "ports," irrespective of its merits as a harbor.
In Admiralty. Libel to recover half pilotage. Stephen M. White, for libelant. Mortimer &; Harris, for respondent. Ross, J. At the times stated in the pleadings, the libelant was a duly licensed pilot" for the port Of Wilmington and bay of San Pedro," and, as such, spoke the British bark Howden, bound for 8an Pedro, and tendered services as pilot. His services being declined by the master of the bark, libelant .commenced the present proceeding, claiming to be entitled to half the usual rate of pilotage by virtue of section 2436 of the Political Code of California, which provides, among other things, that pilots for all of the ports of this state other than San Francisco, Mare island, Benicia, and Humboldt bay, are entitled to receive for piloting every vessel into or out of port the sum of eight dollars per foot draught, and that, when the person commanding any vessel refuses to take a pllot, the pilot first offering his services is entitled to half pilotage. That tlly'state has the right to impose half pilotage on foreign vessels entering the ports of the'state,and declining the services of a pilot, 'was