special line when making the combinations respectively claiUled by them. When 3'talid patent hasbeetL obtained under such.conditions, the claims oN;hepatentee must be restricted to the precise form and arrangement of parts described in the specification. Such a patent is an entirety; and it is a familiar principle that all the parts of the combinations must be used by the defendant in order to constitute an infringement. Howe v. Neemes,18 Fed. Rep. 40; Matteson v. Caine, 17 525 ; Bragg v. Fitch, 121 U. S. 478, 7 Sup. Ct. Rep. 978; Railway Co. v. Sayles, 97 U. S. 554. After a fUll consideration of the whole case, we have found no reason to doubt the correctness of the conClusions arrived at by the circuit court, and its decree is therefore affirmed.
GREENWOOD etal. v. TOWN OF WESTPORT. ,(District Court,. D. Connecticut. January 23, 1800.)
Nos. 915, 916MARITUIE TORT NEGLIGENT MANAGEMENT OF "
ADlURAI\TY JURISDICTION DRAWBRIDGE.
A libel alleged that'll steam ve.,selapproaching a drawbridge over public navigable waters of the United States gave timely Ilignals that she desired to. pass through the same, but that no attention was paid to her signals, and that on reaching the draw she was to wait about an hour, and was then caught by the ebb tide, struck on the bottom, and sank; that said bridge was USed as a public highway, and 'was in the care, control,andmar.agement of defendant town. Held, that the cause of action alleged was a maritime tort, cognizable in admiralty. I .
BBIDGES-MANAGEMENT BY TOWN-NEGLIGENCE.
A town, which has undertaken to manage and control a drawbridge over navigable waters is liable for negligence or misfeasance therein, although it might not have been originally charged with the duty of. opening said draw.
In Admiralty. Libel .1>y Sylvester Greenwood and others against the town of Westport to recover for damages to the steam barge Hebe, alleged to have been caused by the negligence of the said town in the management of a certain drawbridge. Heard on exceptions to the jurisdiction. Overruled. Samuel Park. for libelants. Curt.is Thompson. for defendant.
TOWNSEND, District Judge. The libel alleges that the steam barge Hebe was proceeding up Westport river laden with coal, about noon on October 26th, and, when about three quarters of a mile from a certain drawbridge in the town of "iestport, she commenced to give signals from her steam whistle that she was approaching and desired to pass through said draw, and repeated said signals until she had nearly reached said bridge, but that no attention was to Said signals, and that, after being compelled to wait about an hour, the Hebe was caught by the ebb tide, struck the bottom, and sank. The libel further alleges that said drawbridge "is a part of a public highway crossing public navigable waters of the United States; and that
GREENWOOD 'V. TOWN OF WESTPORT.
said drawbridge, 38 a public highway, is in the care, control, and man· agement of the said town of Westport." The defendant excepts t,o the libel on the following grounds, namely: "Becallse there are no allegations in the libel showing an express statutory liability, or any legal liability;" and because the allegations do not bring the case within the jurisdiction of a court of admiralty. In support of these exceptions defendant claims that, in the absence of state legislation, there is no obligation on the part of towns to open and close drawbridges, and that no statutory duty is imposed upon the town of Westport. It is further claimed that this bridge is not necessarily a nuisance, and that the commercial use of said Westport river, at the point where it is crossed by said bridge, is not such that it wQU1d justify the expense of the <lonstant attendance of a man at said draw. Finally, it is claimed that a court of admiralty has jurisdiction of such cases only where there has been an actual collision, 3I!l in tres· pass at common law, and not where the damage claimed indirectly results from the injury, as in case. The first claim under the exception seems to, me to overlook the nature of the jurisdiction of a court of admiralty. The libel alleges negligence in the management of a drawbridge over a navigable stream, and damag-e suffered thereby. This constitutes a maritime tort. "Admiralty has jurisdiction over damage done to a vessel on navigable water by a bridge or permanent structure." City of Bostoo v. Crowley, 38 Fed. Rep. 204; Assante v. Bridge Co., 40 Fed. Rep. 767. And. if the defendant has undertaken to manage and con· trol this drawbridg-e, it is liable for misfeasance, although it might not have been originally charged with the duty of opening draw. The evidence as to whether there was misfeasance in fact, and in reo gard to the alleg-ed commercial insignificance of the navigable stream, is only admissible by way of defense. As is stated by Judge Brown in Edgerton v. Mayor, etc., 27 Fed. Rep. 233:
"In constl1lcting the bridge with a draw, and in undertaking to open and manage the draw, so as to allow vessels to pasl, the ,state ,and the city have recognized the right of vessels to pass through without an:r allpeal to the na· tional authority to protect that right. People v. Saratoga, etc., R. Co., 15 Wend. 113, 134, 136; Escanaba & L. M. Transp. Co. v. L'hicago, 107 U. S. 678, 683, 2 Sup. Ct. Rep. 185; Miller v. Mayor, etc., 109 U. S. 385, 393, 3 Sup. Ct. Rep. 228. Having thus recognized the rights of commerce, and undertaken to provide accommodations for the passage of vessels, the corporation is bound that the custodians of the bridge shall use ordinary diligence to avoid acci· dents to veflBels going through the draw at customary hours, and in the customary manner, as one of the incidents of the care, management, and control of the bridge itself. It is responsible, therefore, for the want of ordinary care and diligence in its servants, and for the consequent damage."
The claim that only trespasses are included under the term "maritime torts" is not supported by the authorities in the federal courts. Mr. Justice Grier, in Philadelphia, W. & B. R. Co. v. Philadelphia & H. De G. Steam Towboat Co., 23 How. 209, holds that maritime torts have always included wrongs suffered in consequence of the negligence or malfeasance of others, where the remedy at common law is by an action on the case. It seems to me that, if the town was negligent in the discharge of a duty which it had undertaken to discharge, it is im· material whether the damage resulting therefrom consisted in an
oollision witti 'thelicldgetor witlftherocksat ,the' $ide of m the case of Hill v.' Board, 4:5': i'ed,. Rep. 260," alleged in this libel. There;. as steamer, ·.8I tmawbridgeacross '. a Iiaviga,ble : stream, .she, sounde!l,"tbWusualwhiStbJioonotify the bridge to open the: draw, ,fl'hQ(loutywas .$tJ :negligently;'. performed .that· the propeller, without fatdt, eollidedWftl1the bridge. Upon the question of ·juri$. Green.att:.er re:vi.ewi.D.g the deci$ions of the supreme thg 11ni;ted StateS, :Says: ,"As tl:teri, 18 admiralty jUrisdiction ovm-1iorts, the
th.e ,cham:ret 'The facts
was the tort ienmplained ·of committed on land ,or on )lll.vigait may be, Is decisive alld final. Clearly, inthts. it appears tha.t, the wrongf\l1 act WI!S commlttedupon navigable watepi!, ;4p.dl:iellce Within the,jUrisdiction of this court.'.' ,
, : '.1-',,:, ,,' :.'
are. overruled. '
TlIE GUY C. GOBS. pVGET $OUND MACHINERY DlJ)POT v. THE GUY O. GOSS. (District Court,D. Washington, N. D. December 19, 1892.)
vnreference of an o,e;tmiralty cause toa commissioner to take and report the evidence, the libelant rested after examining three witnesses, and Without giving notice of intention to offer further proof at a later stage. , The cla.b:nant. thereupon, filed a motion to dismiss for want of e.idence sutlicientw sustain. the libel, but, without waiting tosubmlt the motion to the court, he proceeded be!ore the commissioner to take evidence on his side, after notice that the motion was not waived. Held; that the claimant ,was entitled toha"fe thecaae decided on the evidence of the first three witnesses, unaided by evidence adduced by libelant on cross-examination of claimant's witnesses or in rebuttal; no suflicient reason appearing for receiving such evldenceout of time.
,CARRIAGE op' GOODS .,', LIABILITY pOR DAMAGE -;-PLEADING AND ,
In Admiralty.Suitby'the Machinery Depot (a cOr,poratioil) for damage by.' rust to· a consignment of· iron pipe, shipped fr?m York via Gape Horn to.Seftttle, on the bark Guy C. GQ$S. ;DISmIssed.": , '