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Vol. I.]

BRADY V. AMERICAN STEAMSHIP Co.

(No. 9.

was the article made by the plaintiff. The vice-chancellor granted an injunction, although the defendant was an actual resident at Glenfield and his manufactory was there. It was dissolved on appeal, but reinstated and affirmed by the house of lords. The vice-chancellor said, “ that no man had a right to avail himself of a trade-mark, or to adopt any other means whereby he should induce people to purchase his goods under the belief that they were purchasing the goods of another man;" and he was of opinion that “ the defendant had pursued that course with the deliberate and fraudulent intention of palming off his starch upon the public as the starch of the plaintiff, and acquiring a sale of his starch by means of the connection and reputation of the plaintiff.

In Newman v. Alvord, 49 Barb. 588, it appeared that the plaintiffs for thirteen years had carried on business at the village of Akron, in the county of Erie, where they manufactured and sold cement, or water-lime, which they designated as “ Akron cement” and “ Akron water-lime."

The defendants manufactured an article in Onondaga County, which they labelled “ Alvord's Onondaga Akron cement or water-lime, manufactured at Syracuse, New York." They were perpetually enjoined from using the word “ Akron” on their bills and labels, or in any other way in connection with the manufacture or sale of their cement or lime. The judgment awarding the injunction was affirmed at the general term, and also by the commission of appeals.

As a general rule geographical names cannot be appropriated as trademarks, but the rule has its exception where the intention in the adoption of the descriptive word is not so much to indicate the place of manufacture as to intrench upon the previous use and popularity of another's trade-mark.

The order appealed from should be modified and the injunction extended so as to prohibit the use of the words • Worcestershire sauce" on the bills, labels, and wrappers of the defendants.

BRADY, J., concurred.

DISTRICT COURT OF THE UNITED STATES. - EASTERN

DISTRICT OF PENNSYLVANIA.

[JULY, 1874.]

ADMIRALTY. — SALVAGE SERVICE BY PASSENGER.

BRADY V. AMERICAN STEAMSHIP CO.

The rule is that a passenger cannot be a salvor, and any exception to it is to be ad

mitted with the greatest caution. Where a passenger, who was a master navigator, assumed command of a ship of

great value during a violent storm and after the master and other officers had been lost, and rendered efficient service during the continuance of the storm : Held, that he was to be regarded as a salvor. But having acted as master after the subsidence of the storm such passenger was held to have thereby detracted materially from the merit of his services, and the compensation was reduced accordingly.

BRADY 0. AMERICAN STEAMSHIP Co.

Vol. I.)

(No. 9.

Messrs. Theodore Cuya vessel mannized represe

The facts are set forth in the opinion.
Messrs. R. E. Shapley & C. M. Neal, for the libellant.
Messrs. Theodore Cuyler & M. P. Henry, contra.

CADWALLADER, J. A vessel manned and otherwise fitted for a voyage is often spoken of as having an organized representative or artificial personality. A public armed vessel represents the sovereignty of the nation to which she belongs. A merchant vessel represents a little private community. It is a definite organized portion of the social system of her nation. Judges, on both sides of the Atlantic, have assimilated such a vessel, when on the high sea, to a floating portion of this nation's territory, of which, though temporarily detached, it continues to be a part. Her internal relations are determined by its laws, and her external relations by the laws of the sea, which constitute a part of the system of universal jurisprudence. Under certain qualifications, her ex-territoriality is, through international comity, recognized, even when she is in foreign territory.

These observations, in part, explain the remark of Montesquieu, that mariners are citizens or inhabitants of the vessel. They cannot rightfully leave her, unless their association with her is legally at an end, through the conventional termination of their voyage, or otherwise. Till then they can be compulsorily detained in her.

The relation of a passenger to the vessel is different. If a sailor has been rightly described as an inhabitant of the vessel, and as in subjection to her government, a passenger may be compared to a mere sojourner in her who is only in temporary subjection. A passenger, while on board, may, indeed, be considered as one of her company, but not in the same light as one of the crew. The passenger may leave her at his pleasure, if an opportunity occurs before the end of his conventional passage ; and may do so even in time of danger, however great.

For this reason, if the vessel is in distress, and a passenger who has an opportunity of leaving her chooses to remain on board, he may stand afterwards, upon a question of salvage service, nearly or quite in the same relation as if he were not associated with her at all. He may therefore entitle himself to compensation of the nature of salvage, by rendering even service of ordinary bodily labor, as in pumping, or otherwise. But where he has had no such opportunity of dissociating himself from the vessel, he is, in time of danger, compellable to render, to the utmost of his ability, like service with any other person of her company; and, as to such service, cannot have any claim of salvage.

It by no means follows that a passenger peculiarly capable of rendering extraordinary service, far beyond that of one of a good crew, is, in all cases whatever, compellable to render it; or that, if he does render it with useful effects, he cannot, in any case, become entitled to compensation of the nature of salvage. We may suppose the case of a ship, or her cargo, partially on fire, the ship having on board a passenger who is a chemist, with a sort of travelling laboratory. He may have, in this laboratory, the probable means of checking the fire, but perhaps not without some risk to himself and others, of increasing the danger. If, by professional skill and judgment, under the authority of the navigator of the vessel, the chemist makes the experiment, and there is a successful result, is he to receive no

Breat.

Vol. I.)

(No. 9.

BRADY v. AMERICAN STEAMSHIP Co.

compensation ? If he should be compensated, is not the compensation for a service of the nature of salvage ?

The decision in the case of the steamer Great Eastern answers the question. When that vessel was three hundred miles from land, her paddle-wheels were disabled, so that she could be moved by the screw alone. While she was in this condition, the rudder shaft was broken, and was disconnected from the steering gear, so that she became quite unmanageable. Her officers in vain endeavored to substitute and secure some appliance by which to work the shaft. A passenger, who was a mechanician, then devised, and, with the consent of the master and the assistance of the crew, executed a plan for the purpose, which was successful. This was done by a skilful use and adaptation of fixtures, tackle, and apparel of the vessel herself. For the service $15,000 was decreed to the passenger as salvage. 11 Law Times, N. S. 516. The reason of the decision was that this highly beneficial service had been peculiar and extraordinary, and such as he was not compellable to perform. This decision is, I think, right in principle. But it establishes what must be considered as an exception from a rule. The rule is that a passenger cannot be a salvor. The exception, lest it should engender litigation, and promote insubordi. nation, must not be admitted without the greatest caution. Especially must such caution be observed where the passenger is of the nautical profession.

In the present case, a large steamer, worth perhaps half a million of dollars, with passengers and a cargo, having four officers, beside the master, encountered in mid-ocean a tempest of great violence. During the storm, when changing watches at midnight, she shipped a heavy sea which stove in the forward hatches, and swept away the house forward, carrying overboard the master and first and second officers, with two of the crew.

So long as any officer of a vessel is on board, and not disabled, there can be no suspension of the executive authority of her internal government. Therefore, at this crisis, the command legally devolved, at once, upon the third officer. He, however, did not assume it, but was for some time fully and usefully engaged in securing the forward hatches, or in superintending the securing of them. The fourth officer had been previously disabled, and was not on duty. The wheel was fully and properly manned, and this was at no time otherwise. But there was no officer of the deck surviving, and there was urgent necessity for such an officer to give directions to the men at the wheel. It was a crisis of great peril. There was, at all events, great seeming danger; and it would now be mere idling to inquire speculatively how far actual danger may really have existed. The after-born supposed wisdom from such a retrospect might be arrogant folly. There certainly was also great alarm, with ample supposed cause; and a general panic, if not prevented, might have soon ensued; and this might, in its consequences, have been dangerous if not disastrous.

At this crisis the libellant intervened meritoriously. He was on board simply as a passenger, who, as such, had paid his fare. He was a competent professional master navigator, with former experience in the command of sailing vessels and of steamers. He went to the wheel-house and promptly assumed command or direction there, doing whatever was necVol. I.]

BRADY v. AMERICAN STEAMSHIP Co.

[No. 9.

essary and proper for the exigency. He thus averted until the termination of the storm, whatever danger may have been caused by the unfortunate loss of the master.

I think that this was a salvage service. The difficulties in the way of so deciding are great. But those in opposition to a contrary decision would be greater. It is true that when the third officer succeeded of right to the command of the vessel, he might have ordered the libellant to take the watch during the emergency. The libellant would certainly have been compellable to go to the wheel-house. If he had been directed, when there, to act as officer of the deck, it would, I think, have been his duty to obey, and to execute the office to the best of his ability. Had he done so, under such orders, I do not, as at present advised, think that it would have been a salvage service. But, without orders, he was not compellable to decide who should have the watch, or to take upon himself the direction, with its cares and responsibilities.

At the crisis of danger there was no means of organizing the internal government of the vessel, unless through immediate energetic action of the third officer. That officer did not thus act. The libellant was, therefore, justifiable, under the law of maritime necessity, in acting upon his own responsibility, as officer of the deck. There was, at this time, therefore, no usurpation of unlawful authority by him. This being so, his conduct thus far was meritorious and highly beneficial ; and the service was, under the circumstances, extraordinary. It was a peculiar service for one who was not of the crew to take the command of the watch without being assigned to it.

On the next morning, the storm having ceased or abated, and no special danger continuing to exist, the chief engineer and the purser, and some others on board, without consulting the third officer, whose authority alone they should have recognized, wrongfully assumed upon themselves to offer the command of the vessel to the libellant, and urgently invited him to assume it as master. He very improperly did so. He did not consult the third officer, but nominated him as first officer. It is contended that the third officer acquiesced in what would thus otherwise have been a usurpation. An English judge has recently said that quiescence is not acquiescence. Mere enforced submission certainly is not. The third officer here submitted, but did not acquiesce.

The libellant continued to act in this usurped relation of master of the vessel for several days, until she reached the port of destination.

On her arrival, the owners, who are here defendants, gave thanks, in writing, to the libellant, as for extraordinary services, and offered him what would have been a liberal gratuity for meritorious conduct if he had been an officer of the vessel. But the amount offered was greatly below the least possible estimate of compensation for a salvage service.

He now alleges that he became of right master of the vessel, and thus rendered a continuing salvage service. This unfounded pretension is of course rejected.

The question then arises, whether through his usurpation of the command of the vessel after the storm, he has incurred a forfeiture of the salvage compensation to which he was otherwise entitled for his prior service.

theen an office ve been ains for extrao here defend destination

(No. 9.

Vol. I.)

DORGAN v. THE TELEGRAPH COMPANY.

I do not think that under the peculiar circumstances of the case an absolute forfeiture of the whole amount was incurred retroactively by his assumption and exercise of the illegitimate authority. But the effect of this usurpation must necessarily be to reduce very materially the amount which would otherwise be awardable to him.

What the reduced amount ought to be is not easily determinable. I have hesitated between three thousand and four thousand dollars, and have determined on the greater sum, partly because I think that the defendants' letter of thanks almost invited the litigation which has followed, and, though not so intended, must have induced a high estimate by the libellant of the value of the service.

Costs are adjudged to the libellant; but under the head of depositions, taxable costs will not be allowed to an amount exceeding two hundred dollars. The testimony is of great bulk, but of no proportionate weight; and its excess in bulk ought not to be allowed to swell the costs.

Decree for libellant for four thousand dollars, provided that, under the head of depositions, costs exceeding two hundred dollars will not be taxed or allowed.

headecree for libehulk ought nereat b

CIRCUIT COURT OF THE UNITED STATES. - SOUTHERN

DISTRICT OF ALABAMA.

[APRIL, 1874.)

NEGLIGENCE BY TELEGRAPH COMPANY EXPOUNDED. — UNINSURED

MESSAGE. —DELAY IN DELIVERY.

DORGAN V. THE TELEGRAPH COMPANY.

A telegraph company undertakes to receive and transmit by telegraph, and to deliver, without unnecessary delay, according to directions, the messages offered

for transmission. Where a message was left at the office of defendant in New York at about twenty minutes after five o'clock P. M. for transmission to Mobile, Alabama, and was not delivered at the office of the person addressed until half past ten o'clock the next forenoon, and it appeared that under ordinary circumstances it would only require four minutes to transmit the message, and the plaintif had paid uninsured day rates for its transmission, the court instructed the jury that the facts made out a

primâ facie case of negligence. Those who use the telegraph as a means of communication, unless they insure the

delivery of their messages, take the risk of delay and failure of their messages to reach their destinations arising from the accidents and obstructions to which telegraphic lines are liable. It is the duty of a telegraph company to transmit messages impartially in good faith

and in the order in which they are received. Therefore, if the company proved that the delay in the transmission of the message

was not owing to the carelessness or negligence of its agents, but to obstructions in the line which the company could not foresee or prevent, or that the delay arose from the observance of the rule that messages must be sent in the order in which they are received, then the primâ facie case of negligence is overthrown.

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