Silsby et al. v. Foote. to be correct, "that defendant has not infringed plaintiff's patent unless he has used all the parts embraced in plaintiff's combination," I think it is clear to ocular demonstration that the defendants have not infringed either of the combinations claimed, unless we assert that all other combinations which produce the same result are equivalents for the first-a sophism which has just been rejected by this court in the case of McCormick v. Manny. A vindication or demonstration of the correctness of this conclusion could not be made intelligible unless by a long recital from the specification, and an exhibition of models or diagrams. The decree of the court below very properly does not assert or adjudge that defendants have used the complex combination of complainant's specification in any of its numerous parts save one-the expanding rod. On this point, therefore, my objection to the affirmance of any portion of this decree is, because it is founded on a claim admitted to be void in law, and is sustained by presuming, contrary to the record, that it was founded on a claim found by verdict in the case to be void in fact, and without any proof of infringement save ocular demonstration of the contrary. III. But, assuming the verdict of 1848 between the present complainant and some of the defendants to be conclusive as an estoppel on all of them, notwithstanding the denial of the answer and the evidence of our senses, yet that verdict was between the complainant's patent and the Race patent, which is called the "brass-rod regulator," then used by the defendants. It had no reference whatever to the "expander patent," afterwards used by defendants. There is no charge in the bill that the combination of this last patent infringes the complainant's patent. There was no evidence offered to prove such to be the fact. The master's report declares it not to be an infringement of the combination of the third claim-it is patent to the eyes of any one who will examine the models, that it does not; yet, because it used the expansive power of metals, the defendants are mulcted in the sum of $7,033 damages, not for invading the complainant's rights, but for evading his patent by a patented invention for a different combination. I forbear to make any further remarks on this enormity, because it is affirmed by the division of the court, and their opin ion has, happily, not been compelled to defend it by argument. As it is without precedent, so neither can it be cited as such hereafter. IV. Lastly, after a very long and laborious investigation, the master has found that the profit of making and vending the machine charged as an infringement, is ten cents on each regulator. This finding of the report was excepted to by the People's Ferry Company of Boston v. Beers et al. complainant. The court overruled the exception and confirmed the report on this point; and, nevertheless, assess the damage at ten-fold the amount. By what process of reasoning or arithmetic, on what facts or what principle of law, this astonishing and ruinous decree is founded, it does not undertake to explain. I can conceive of no other ground than that the court have calculated the whole profit of the stove, as was done in the case of Seymour v. McCormick, and overruled by this court. Believing, therefore, that the decree of this court, so far as it affirms any portion of the decree of the Circuit Court, is not only unsustained by evidence, but contrary to the law as heretofore established by this court, I cannot give my assent to it. THE PEOPLE'S FERRY COMPANY OF BOSTON, CLAIMANTS OF THE The admiralty jurisdiction of the courts of the United States does not extend to cases where a lien is claimed by the builders of a vessel for work done and materials found in its construction. Whether the District Courts can enforce a lien in such cases, where the law of the State where the vessel was built gave a lien for its construction, is a question which the court does not now decide. [MR. CHIEF JUSTICE TANEY, HAVING BEEN INDISPOSED, DID NOT SIT IN THIS CAUSE.] 20h 393 'L-ed 961 22h 132 23h 494 7wa646 11wa 28 21 wa554 21 wa556 21 wa592 9f 124 141 876 17f 461 THIS was an appeal from the Circuit Court of the United 321 704 States for the southern district of New York. The facts of the case are stated in the opinion of the court. It was argued by Mr. O'Connor for the appellants, and Mr. Benedict for the appellees. Mr. O'Connor made the following points: First Point.-A contract to build and complete a ship or vessel is not within the admiralty jurisdiction of the United States courts, though it be intended to employ her in navigating the ocean, and even though the employer be a citizen or inhabitant of some other State or country than that in which the work is to be done; much less is a contract merely to construct the hull of an intended vessel within that jurisdiction. I. The Constitution and laws of the United States conferred on the courts of the Union the admiralty and maritime jurisdiction, as it existed at our separation from the parent State, under a just view of English jurisprudence. 88f 299 34f 403 135 608 391 40 46f 137 461 398 461 798 148 11 521 389 People's Ferry Company of Boston v. Beers et al. 1. The attempt to tie down the jurisdiction, as a moral and legal entity, to a definition based upon the instances in which the English court has been able to exercise its powers in despite of judicial rivalry and hostility, may not have succeeded. But there is nothing inconsistent with the above proposition (I) in any of the decisions of this court which carry the exercise of admiralty cognizance beyond the limit marked by practice in England prior to and at the Revolution, nor even in any of the opinions favoring such extension. (Genesee Chief v. Fitzhugh, 12 How., 455; New Jersey Steam Navigation Company v. Merchants' Bank, 6 How., 392; 18 How., 189.) 2. No one at this day will propose to extend the admiralty jurisdiction to all cases which would fall within it according to the practice of continental Europe. And unless it is defined by a reference to the true principles of that law on which our whole judicial polity is based, we shall be left without guide or precedent. (1 Kent's Com., 369, notes, 8th ed.) II. The laws of continental Europe in respect to claims for repairs and supplies to ships or vessels, and in respect to the question of admiralty jurisdiction, do not discriminate between foreign and domestic vessels. The law of England always has so discriminated, and this court has in like manner discriminated. In English and American law, the admiralty jurisdiction is confined to repairs, &c., furnished in a place other than the home port of the vessel. (The Nestor, 1 Sumner, 79; Justin v. Ballam, 2 Ld. Raym., 806, first resolution; 3 Hagg., 144; 3 Knapp P. C. R., 194; Act of 3d and 4th Vic., ch. 65, sec. 6; The Alexander, 1 W. Robinson, 288; ib., 360; Ward v. Peck, 18 How., 267; Benedict's Adm., sec. 108; Zane v. The Brig President, 4 Wash. C. C. R., 456; The General Smith, 4 Wheaton, 438; 12th Admiralty Rule of this court; 1 Curtis's Com., sections 51, 52.) 1. The Roman civil law and the law of several modern nations, estimating less highly than the English common law the free and unrestricted circulation of property, gave a lien on solid grounds of natural equity to the producer, preserver, and improver of a thing, and to him who lent money for any of these purposes. This policy extended alike to every description of property. (Cushing's Domat, secs. 1741, 1745, 1765; The Nestor, 1 Sumner, 79; Bee's Ad. Rep., 78; Code Civil of Napoleon, sec. 2103, subs. 4, 5; French Com. Code, Book 2, art. 191, sec. 8; Civil Code of Louisiana, art. 3194, 3204 to 3215; Vanleuwen's Roman Dutch Law, Book, 4, ch. 13, sec. 8.) 2. The English common law, on the contrary, favoring the free negotiation of property, gave no lien in any of these cases, People's Ferry Company of Boston v. Beers et al. unless the claimant retain possession of the thing. And even those nations of Europe which adopted the civil law as the general basis of their jurisprudence, and yet held intimate relations with England, assimilated their laws to the English policy. (Lickbarrow v. Mason, 1 Smith's Leading Cases, 430; Phila. Law Reg., 1856, vol. 4, p. 577; Bell's Com., secs. 1385, 1387, 1397.) 3. There was no reason in any other nation than England for a dispute as to the jurisdiction of the admiralty where the right existed; but in England that jurisdiction, if not kept within defined limits, encroached upon trial by jury. In this country, there is an additional objection. Every assumption of admiralty cognizance is an encroachment upon the jurisdiction and independence of the States. III. Although the law and policy of continental Europe, overlooking as immaterial the distinction between foreign and domestic owners, gave a lien for building or constructing a vessel, as well as for repairs, and overlooked, as equally immaterial, in which court the claim was prosecuted, it is clear that, according to the principles and policy both of English and American law, the builder has not any lien by the general law, and cannot prosecute in the admiralty for his compensation. (The General Smith, 4 Wheat., 438; Robinson v. Hosier, 4 B. and Ald., 344; Wood v. Russell, 5 B. and Ald., 942; 2 Story's R., 462.) ÍV. Building or constructing a ship for a citizen or a foreigner is a purely local matter, merely tending toward and not in any way directly connected with maritime commerce. It is not within the reasons on which admiralty jurisdiction is founded. (St. Jago de Cuba, 9 Wheat., 409; Shrewsbury v. Two Friends, Bee, 435; Hurry v. John and Alice, 1 Wash. C. C. R., 296; 2 Woodb. and Min., 110.) Second Point.-The builders had no lien by any rule of maritime law, nor by the common law, nor by any local law, nor by any contract. I. The lien recognised in some of the maritime codes of continental Europe is not admissible in this country. II. They relinquished their builder's lien under the common law by parting with the possession. III. There is no statute or other local law in New Jersey giving a lien to shipwrights. IV. The laws of New York giving a lien to shipwrights apply only to the case of debts contracted within the State of New York, and for work done or materials furnished in the State of New York. (2 R. S., 493, sec. 1.) V. The contract created no lien. The special provision People's Ferry Company of Boston v. Beers et al. on that subject contained therein was designed for other objects. 1. Although a vessel is to be paid for by instalments as the work progresses, it depends on the terms of the contract whether any title is acquired by the employer before final delivery. This is especially so as to materials provided but not applied to the vessel. It was designed to settle this question in favor of the employer as security for his advances. (Andrews v. Durant, 1 Kernan, 45; Spanish Co. v. Bell, 34 Èng. L. and Eq., 188; Wood v. Bell, 36 Eng. L. and Eq., 148.) 2. The second branch of this clause was designed to save the common-law lien of the mechanic from the possible implication of a relinquishment in consequence of the transfer of the ownership to the employer. The common-law lien remained until the mechanic parted with the possession. Third Point.-If any lien existed at common law, by local statute or by express contract, it was not enforceable in the admiralty. I. If there was a lien by force of the contract, it was not a maritime lien. (Leland v. Medora, 2 Wood. and Min., pp. 107 to 113; Hurry v. John and Alice, 1 Wash. C. C., 296; 2 Brown's Civ. and Adm. Law, p. 116, 95; Bogart v. The John Jay, 17 How., 400; Schuchardt v. Angelique, 19 How., 241.) II. Where State law, either positive or customary, gives a lien, there is no ground for enforcing such lien by admiralty process. 1. When the lien is given by the State law, that same law provides adequate means for enforcing it. (1 Peters Adm. Dec., 228; Barque Chusan, 2 Story, 462.) 2. Enforcing the lien of the State law by admiralty process would lead to inconvenient conflicts of power. (The R. Fulton, 1 Paine's C. C. R.; 623.) 3. Furnishing repairs, &c., to foreign vessels is the only case in which the maritime law gives a lien. If it was necessary for the purposes of maritime commerce, the lien would be given in other cases. That a lien for repairs, &c., in other cases, is not needed, proves that such liens, when given by other laws, are not in their nature maritime. And there is a great incongruity in enforcing by admiralty process a title unknown to the admiralty law. 4. Although it has been often decided in the circuits that a lien for repairs, &c., not known to the general maritime law, and merely arising from State legislation, might be enforced in the admiralty, that point has never been conclusively determined in this court. (Peyroux v. Howard, 7 Pet., 341; Barque Chusan, 2 Story's R., 463.) |