THE MASCOTTJll.
605
and used long before defendants patented it1 and cannot now make the difference betweeu the two combinations which shall prevent infringement. It is further urged that the tongue form of bifurcation permits the whole width of the adchor to be applied to holding down the hem of the wider flange, while in the split form only one half of the anchor is so applied. In practical operation, it will probably be found tllat, in the split form of anchor, the parts of the joint will be so pressed together that the shorter leg of the anchor would press down on the lip of the higher flange, thus that the whole width of the anchor would be 'applied to holding down the fold of the higher flange. However this may be, the difference in operation, if any, is simply one of degree, which might, have been\'compassedin the split form of anchor by ening the anchor used. Moreover, this chauge, if it be ooe, does not remedy any known defect in'the complainant's device. In the use of the latter there never has been any complaint that the holding-down strength of the split anchor was not ample for all purposes. In our opinion, therefore, the defendants' devise is, in effect, the same combipatented to the complainant's assignor. The variatione nation are produced by merely slight changes in form, without any real differ·· &OCein. function or operlltion or result. The decree will be for a perpet· ual injunction, and, as it is in evidence that actual infringements have taken place since the filing of the bill, there will be a reference to a master, evidence, and, report on the damages to complainant.
CaTER et.l al.v. THE MASCO'I'rllI. (No.1.) (Cireu.it OouTt 0/ AppeaZ" Second Otrcuit. July 00, 189l1.)
No.7&. 8ml'PING-D.uUGB TO
1111, aftlrmed In part.
Where a ship gives a bill of ladin'g reolting that the goods were received on board "in good order and oondition," and afterwards delivers them in a damajfed condition, the bUl'!ien Is on, her ,tollhow that the damage a,ros,e from an excepted peril ; and, if she is unable to explain the clause of the damage, she is liable. 48 Fed. Rep.
Paoo_BILL OP LADING.
Appeal from the District Court of the United States for the Southern District of New York. In Admiralty. Libel by Carter and others against the steamship Mascotte for damage to cargo. The cause was tried, together with another suit between the same parties, to recover the extra cost caused by discharging certain tea in Brooklyn instead of within the" tea district," on the New York side of the East river. Decree for libelants. 48 Fed. Rep. 119. Claimants of the vessel appeal. Affirmed.
vol. 51. ':; Thb':oPifiii%Sh''belG'W', fl11'80+ farqi.s:'itncpnoerns,tMs 'as well!
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b . ·. ..' . ". 88. ,.\lee.D.. :d. . e. . .h' . ".t,be. e.Vid. . ?lore th. a.n ,Qat. ., .. Cl:J.. Q,qo ..}. 'th.e 8.ta.. inl'l and. defa,cing.o. . .· . . Hne.,g., ative, tmrtain causes tha't; might, undei" somecircul'nstahCgJ;'have 'produced but I to releaile Milp from her ! The'18hip has, andcontrQI .ot .the' goods' from' the ttmertlhey are deliveredi.inlloher cUlltUlY.·" [f t he,ga<X!s reQei vel'Lin good conditliohi as ,this bill, of 1ading tl)"y we,Jle" s1l1:1 warraJM' tqeiJ;dl;li y,err p. '.IAk . . Opd.,il., ion. '.. unles11 da.m,. g.edt,.h gh tb.e a.. ct o(Gqd. p ',:r-iverpool & th.e ...·......"' .. . . . .. . ... .. illS, cause. G. W. stea:m Oa. v. pheni:b Tna. Oo.,129'U., ,8...,97, 437, 98tip.Ct·. Rl'p. 469. The tiu'ta4q.of showh'ig tlfat'the damage arose from such an' cause Is tl'pontlle·sblp. 'Nel8o"'>v;,W<JOdrujf;lBlack. 156. As evi.. denoeldoes nob show this.,butmerllly'leaVilS,thedamage I1ne¥plalne4, I must shipllable. (or .tbls &' 1{irlilfl.,' (J. 'Pd:i-ker Kirli'A,' 'Of cotinllel,) for appellants.. EdtlXlil'dL. LOwen" 'forappellees· . afii!tl::u\ooMBE,: it,'1'c11it Judges, and·SaIPllAN, Di&trictJtidge; " , " i.
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the learned1district judge who decided this cause in the court below, that the libelants have a sufficient case for the recovery of their damages, by reason of nondelivery of their cargo in good order and condition. The burden of proof is on the steamship to overcome the effect of the acknowledgment in the bill of lading of the reception of oil board" in good order and condition," and the evidence introduced on her behalf is not sufficient. to overcome etlect.loi· this The .decree is affirmw.' ·
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The oustbmtottbe port of New' York requfringcargoes of tea to 'be dfschBt'lirlid in: tlle ...tll.e ...Nll.W. 1fO ..t;kSide.of.the. Jl:l1o".I1,r,iver· d.Oe& Qot.apPly to a. gener. ShiP.. . . . QOIl,BIs,ts o!,.Wll,·' anp where, a ship ,endeavor.ad for hllarly thtelldays. Withott'b success. to obt3l11a ',bertli ih such dtstrict, and. afterw,Ji'ls elsewhere, which WM;adceptable to the (lonslgneesof the relt. of the cargo, she was not liable. for the inoreased coatcBWied b,¥ diaclllqgiD.i
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tea t.here. 48,Fed; H.'ep. 119,
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