2

tions are at the extreme outer sides of this fulminate, for two purposes: one is to diffuse the fire from this center most thoroughly; the other is to have an unperforated anvil over and against the fulminate, as it rests solid in its chamber, to receive the central blow of a striker and obtain complete resist ance by the anvil bar, and yet have free escapement for the explosive force at once It is obvious that this is a claim for a from beneath the anvil plate without any combination, none of the elements or conchamber or space for it to expand into un-stituent parts of which is claimed to be new, der the plate. This assures a certain ignition, security of the anvil plate to keep its position, and a complete combustion of the powder charge from the base forward, as it impels the bullet out of the gun."

"In such a claim, if the patentee specifies any element as entering into the combination, either directly by the language of the claim, or by such a reference to the descriptive part of the specification as carries such element into the claim, he makes such element material to the combination, and the court cannot declare it to be immaterial. It is his province to make his own claim and his privilege to restrict it. If it be a claim to a combination, and be restricted to specified elements, all must be regarded as material, leaving open only the question whether "2d. The circular plate E, constructed as an omitted part is supplied by an equivalent described, in combination with the circular device or instrumentality." Fay v. Cordesdisc D, and metal solid firetight case A, sub-man, 109 U. S. 408, 27 L. ed. 979, 3 Sup. Ct. stantially as shown and described. Rep. 236.

merely claiming "a circular metallic tight may be used in it; the one used by the Unitfitting plate perforated with a central ful-ed States and alleged to infringe claimant's minate chamber, leaving a central solid or rights is a circular metallic cup, into which unperforated bar over the fulminate cham-is put the fulminate; above this is fastened ber, within a solid firetight metal case," the a disk or cover having a groove on its upper claimant was anticipated by the patents of side, being the diameter of the circle; at each Moffat, 53,168, March 13, 1866; of Tibbals, end of this groove a small piece or notch is 90,607, May 25, 1869; and by an English cut out of it; through the holes thus formed patent, 2,906, 1865. It was not until the the flame from the fulminate escapes; if this, claimant specifically claimed, as part of his primer is placed in the chamber of the re-o combination, "an anvil over the fulminate loading*cartridge, with the closed end of the* provided with two or more openings whose cup outwards and the grooved end against inner edges nearly coincide with the edges of the top of the chamber, the flame from the the central chamber of fulminate in the base fulminate when exploded would pass through of the cartridge," that the patent was al- these holes or notches, thence along the lowed. Whether the examiners were right groove to the central aperture in the cart or wrong in so holding we are not to inquire, ridge case or shell, thence to the black powas the claimant did not appeal, but amended der chamber through this single aperture. his claim and accepted a grant thereof; The entire area of each of the holes or thereby putting himself within the range of notches in the disk is over the fulminate the authorities which hold that if the claim chamber, and the portion of the disk between to a combination be restricted to specified the holes is the anvil." [20 Ct. Cl. 363]. elements, all must be regarded as material, This finding is claimed by the appellant and that limitations imposed by the in- to be incorrect in several respects, and parventor, especially such as were introduced ticularly in its statement that "the portion into an application after it had been persist- of the disk between the holes is the anvil." ently rejected, must be strictly construed But even if we were permitted as an apagainst the inventor and in favor of the pub-pellate court to depart from the findings of lic, and looked upon as in the nature of disclaimers.

"It may be observed. . . that the courts of this country cannot always indulge the same latitude which is exercised by English judges in determining what parts of a machine are or are not material. Our law requires the patentee to specify particularly what he claims to be new, and if he claims a combination of certain elements or parts, we cannot declare that any one of these elements is immaterial. The patentee makes them all material by the restricted form of his claim." Per Mr. Justice Bradley in Union WaterMeter Co. v. Desper, 101 U. S. 332, 337, 25 L. ed. 1024, 1026; Morgan Envelope Co. v. Albany Perforated Wrapping Paper Co. 152 U. S. 425, 429, 38 L. ed. 501, 502, 14 Sup. Ct. Rep. 627.

With these principles of construction in view, we are constrained to concur with the court below in holding that the cartridges made and used by the government were not within the description contained in the appellant's claim.

The government cartridges alleged to be within the appellant's patent are of two kinds, one called the "cup-anvil cartridge," the other the "reloading cartridge." As the appellant has withdrawn his claim for infringement of the former, we have only to do with the latter or reloading cartridge. It is thus described in the sixth finding of the court below:

"This cartridge is a hollow metallic shell, rimmed around the base with a pocket in the exterior of the center of the base; through the center of the top of this pocket, supposing the cartridge to be stood upon its base or closed end, is pierced a single aperture or hole to carry the fulminate flame to the black powder chamber. This cartridge contains only the black powder and the bullet. Any one of the several different kinds of primers

fact made by the trial court, we do not per ceive that the particulars in which this finding is objected to really affect the case as presented to us. Even if we were to adopt the description of the government's cartridge given by the appellant, it still appears that there is an essential difference between the two types of cartridge. Without accepting or rejecting the government's contention that the government's cartridge is outside primed and the appellant's inside primed, and wherein it is claimed that for reloading purposes an outside primed cartridge is superior, it is sufficient to say that the difference in the shape and position of the vents, whereby the explosive force of the fulminate is com municated to the powder charge, is obvious.

The distinguishing feature of the appellant's cartridge is that the anvil plate has two or more openings whose inner edges nearly coincide with the edges of the central chamber of fulminate; but in the reloading cartridge of the government the vents are wholly over the fulminate chamber, do not lead directly to the powder chamber, but lead to a channel cut across the upper face of the anvil, and by this to a hole in the base of the powder chamber.

By this latter construction the explosive force of the fulminate enters the powder chamber in a central stream. But the appellant specifies, as a distinguishing feature, that the fulminate "chamber at its sides or outer extreme edges communicates directly and exclusively with the powder charge, so. that the explosive force of the fulminate is not allowed to expand under a larger area* of the anvil plate and blow it out, but is compelled to diffuse its explosive force, not in a central stream, but in a diffused body into the base of the powder charge."

It may be, as the appellant contends, that his method of communicating the explosive force of the fulminate to the powder charge

is an improvement on previous methods, and | OREGON
is superior in efficacy to that used in the gov-
ernment's cartridges; but our inquiry is not
as to the merits of the patent in suit, but is
confined to the question whether it covers,
in legal contemplation, the defendant's car-
tridge.

Some contention is made, in argument, that because it is stated that some grains of powder may and do fall down through the base of the defendant's powder chamber, and lie loosely in the groove across the upper face of the anvil, therefore it must be concluded that such loose grains of powder come directly in contact with the flame of the fulminate before the latter enters the powder chamber. But such a fact, if it be a fact, appears to be immaterial. It is not pretended that these few loose grains of powder are relied on, or in fact operate, as a means of igniting the charge in the powder chamber.

(179 U. S. 55) RAILWAY & NAVIGATION COMPANY, Appt.,

v.

ROBERT BALFOUR et al., Partners, Doing
Business as Balfour, Guthrie, & Co. et al.

OREGON RAILWAY &

บ.

NAVIGATION COMPANY and Oregon Short Line & Northern Railway Company, Appts., ROBERT BALFOUR et al., Partners, Doing Business as Balfour, Guthrie, & Co., et al. Admiralty appeals proceedings to limit liability of shipowners.

Proceedings under the act of Congress to limit the liability of shipowners, and the rules of the Supreme Court in that regard, are admiralty cases within the meaning of the Judiciary act of March 3, 1891, § 6, making the judgments or decrees of the circuit court of appeals from admiralty cases final, from which no appeal can be taken to the Supreme Court.

Nor can we accept the contention that these two combinations are identical because they are intended to obtain the same result. What we have to consider is not whether the end sought to be effected is the same, but whether the devices or mechanical means by which the desired result is secured Submitted October 9, 1900. Decided October are the same.

We do not consider it necessary to consider a further suggestion, contained in the

opinion of the court below, that, even if the relative position of the vents and the wall of the fulminate chamber be not a material part of the claimant's patent, still the claimant cannot recover because the other characteristics of his invention, found in the cartridge now used by the defendants, were introduced by them prior to the application for or issue of the patent.

The decree of the Court of Claims, dismissing the claimant's petition, is affirmed.

(179 U. S. 86)

WILLIAM W. HUBBELL, Appt.,

v.

UNITED STATES.

Petition for rehearing.

[No. 198, Oct. Term, 1897.]

Leave granted to submit petition for rehearing May, 31, 1898. Denied October 22, 1900.

N PETITION for a rehearing of the de

[Nos. 73, 74.]

22, 1900.

APPEALS from decrees of the United States Circuit Court of Appeals for the Ninth Circuit affirming decrees of the District Court for the District of Oregon in proceedings for limitation of the liability of shipowners. On motion to dismiss. Dismissed.

See same case below, 61 U. S. App. 150, 90
Fed. Rep. 295, 33 C. C. A. 57.

The facts are stated in the opinion.
Messrs. W. W. Cotton and A. B.
Browne for appellants.

Messrs. C. E. S. Wood and George H.
Williams for appellees.

Mr. Chief Justice Fuller delivered the opinion of the court:

These were petitions for a limitation of liability of shipowners, filed in the district court of the United States for the district of Oregon, sitting in admiralty, which proIceeded to decree in that court. From this decree appeals were prosecuted to the United States circuit court of appeals for the ninth circuit and the decree affirmed. 61 U. S. App. 150, 90 Fed. Rep. 295, 33 C. C. A. 57. From that decree appeals were taken to this court, which appellees now move to dismiss.

By the 6th section of the judiciary act of March 3, 1891, it is provided that the judg ments or decrees of the circuit courts of appeals in admiralty cases shall be final; and no appeal to this court lies therefrom. If,

Ocision in 171 U. S. 203, 43 L. ed. 136, 18 then proceedings under the act of Congress

Sup. Ct. Rep. 828, affirming a judgment of the Court of Claims dismissing a petition against the United States for infringement of a patent. Petition denied.

See same case below, 31 Ct. Cl. 464. See, further, the statement of facts the case preceding.

to limit the liability of shipowners, and the rules of this court in that regard, are admiralty cases, it follows that the motions to dismiss must be sustained.

By the 2d section of article 3 of the Con. institution, the judicial power extends "to all cases of admiralty and maritime jurisdic

tion," the word "maritime" having been | the definitive decree of a competent court, added, out of abundant caution, to preclude which should be binding on all parties intera narrow interpretation of the word "ad-ested, and protect the shipowners from bemiralty." ing harassed by litigation in other tribunals.

The jurisdiction to limit the liability of shipowners was conferred upon the district courts by the act of Congress of March 3, 1851 (9 Stat. at L. 635, chap. 43), carried forward into §§ 4282 to 4289 of the Revised Statutes.

It was not until December term, 1871, in the case of the Norwich & N. Y. Transp. Co. v. Wright, 13 Wall. 104, 20 L. ed. 585, that the court was called upon to interpret the act, and to adopt some general rules for the purpose of carrying it into effect, and this was done at that term. 13 Wall. xii., xiii., 20 L. ed. 926, 927; Rules of Practice in Admiralty, 54-58.

We see no reason to modify these views, and, in our judgment, the proper district court, designated by the rules, or otherwise indicated by circumstances, has full jurisdiction and plenary power, as a court of admiralty, to entertain and carry on all proper proceedings for the due execution of the law, in all its parts."

Clearly, then, these were admiralty cases; the decrees of the Circuit Court of Appeals were made final by the statute; and the ap peals must be dismissed.

Plffs. in Err.

บ.

(179 U. S. 68)

AMERICAN NATIONAL BANK et al.

decree.

The power of Congress to pass the act of 1851, and the power of this court to pre- WILBERFORCE SULLY, Trustee, et al., scribe rules regulating proceedings thereunder, were maintained in that case, and were recognized and reaffirmed in many subsequent cases. The Benefactor, 103 U. S. 239, sub nom. New York & W. S. S. Co. v. Mount, 26 L. ed. 351; The Scotland, 105 U. S. 24, sub Motion to retax costs-interpreting former nom. National Steam Nav. Co. v. Dyer, 26 L. ed. 1001; Providence & N. Y. S. S. Co. v. Hill Mfg. Co. 109 U. S. 578, 27 L. ed. 1038, 3 Sup. A Ct. Rep. 379, 617; Butler v. Boston & S. S. S. Co. 130 U. S. 527, 32 L. ed. 1017, 9 Sup. Ct. Rep. 612; Re Morrison, 147 U. S. 14, 34, sub nom. Morrison v. United States Dist. Ct. 37 L. ed. 60, 67, 13 Sup. Ct. Rep. 246. In the latter case the proceeding is styled "an

decree of reversal as to one of several plaintiffs in error, with costs, is interpreted to allow only the costs of the successful plaintif in error.

[No. 266.]

22, 1900.

equitable action," but not in any sense as in- Submitted October 9, 1900. Decided October consistent with the admiralty jurisdiction. In these cases the provisions of the act and of the rules are fully set forth, explained,

and commented on, and need not be repeated.

As decisive of the question before us it will be sufficient to give the following extracts from the opinion of the court, delivered by Mr. Justice Bradley, in Providence & N. Y. S. S. Co. v. Hill Mfg. Co.:

IN ERROR to review a judgment of the Su

preme Court of the State of Tennessee. Motion to retax costs granted.

The facts are stated in the opinion.
Mr. E. J. Baxter for motion.
Messrs. R. E. L. Mountcastle, Samuel
C. Williams, and T. S. Webb in opposi

tion.

This is in substance a motion to retax costs in this case.

Upon the day of the final adjournment of the court, May 28, 1900, the cause was decided, and a decree entered reversing the judgment of the supreme court of Tennessee as to the plaintiff in error Carhart, who was one of several plaintiffs in error, with costs to be paid by the American National Bank. Subsequently to the adjournment all the costs of this court were taxed against the bank, which now prays for a retaxation.

"The subject is one pre-eminetly of admiralty jurisdiction. The rule of limited liability prescribed by the act of 1851 is nothing more than the old maritime rule adminMr. Justice Peckham delivered the opinistered in courts of admiralty in all coun-ion of the court: tries except England, from time immemorial; and if this were not so, the subjectmatter itself is one that belongs to the department of maritime law. The adoption of forms and modes of proceeding requisite and proper for giving due effect to the maritime rule thus adopted by Congress, and for securing to shipowners its benefits, was, therefore, strictly within the powers conferred upon this court; and where the general regulations adopted by this court do not cover the entire ground, it is undoubtedly within the power of the district and circuit courts, as courts of admiralty, to supplement them by additional rules of their own. .. In promulgating the rules referred to, this court expressed its deliberate judgment as to the proper mode of proceeding on the part of shipowners for the purpose of having their rights under the act declared and settled by

The decree of this court has been misinterpreted. It does not mean that all the costs in this court are to be paid by the bank, but only the costs of the plaintiff in error Carhart, in regard to whom alone the judgment of the court below was reversed.

The motion to retax the costs is granted, and the taxation modified to that extent.

(179 U. S. 69)
JAMES KNOTT, Petitioner,

บ.

at Buenos Ayres December 21, 1894, gave her liberty to call at any port or ports to re

BOTANY WORSTED MILLS and Henry P. ceive and discharge cargo, and for any other

Winter and Charles F. Smillie.

Harter act negligence in loading or stow age of cargo-voyage of foreign vessel from foreign port to United States-stipu lations in bill of lading-law of ship's flag.

1.

Damage to wool stowed on the forward side

of a temporary wooden bulkhead, by drainage from sugar stowed aft of the bulkhead, when It results from the fact that for a short time the vessel was trimmed by the head after discharging a part of the cargo, until she was again trimmed by the stern at another port, arises from negligence in loading or stowage of the cargo, which makes the vessel liable under the Harter act of February 13, 1893, chap. 105, § 1 (27 Stat. at L. 445), notwithstanding any stipulations to the contrary in the bills of lading; and it is not a damage from fault or error in the navigation or management of the ship. 2. A stipulation that the law of the ship's flag shall govern, in a bill of lading for goods

in a foreign vessel on a voyage from a foreign port to the United States, is nullified and overridden by the Harter act of February 13, 1893, chap. 105, 1 (27 Stat. at L. 445), which prohibits contracts against liability for negligence in loading and stowing the cargo.

[No. 5.]

purpose whatever; and purported to exempt the carrier from liability for "negligence of ural decay, leakage, or breakage, and all masters or mariners;" "sweating, rust, natdamage arising from the goods by stowage, smell, or evaporation from, them;" "or any or contact with, or by sweating, leakage, other peril of the seas, rivers, navigation, or kind; and whether any of the perils, causes, of land transit, of whatsoever nature or or things above mentioned, or the loss or injury arising therefrom, be occasioned by the wrongful act, default, negligence, or error in judgment of the owners, masters, oflicers, mariners, crew, stevedores, engineers, and other persons whomsoever in the service of the ship, whether employed on the said steamer or otherwise, and whether before or after or during the voyage, or for whose acts the shipowner would otherwise be liable; or by unseaworthiness of the ship at the beginning or at any period of the voy. age, provided all reasonable means have been taken to provide against such unseaworthiness." Each bill of lading also contained the following clause: "This contract shall be governed by the law of the flag of the ship carrying the goods, except that general average shall be adjusted according to York-Antwerp Rules 1890."

The facts of the case are substantially undisputed. The bales of wool of the libellants Argued October 12, 13, 1899. Decided Octo- were taken on board at Buenos Ayres, Decem

ber 22, 1900.

ber 21-24, 1894, and were stowed on end, with proper dunnage, between decks near the bow,

ON WRIT OF CERTIORARI to the United and forward of a temporary wooden bulk.

States Circuit Court of Appeals for the Second Circuit to review a decree affirming a decision of the District Court of the United States for the Southern District of New York for damage to a cargo. Affirmed.

See same case below, 51 U. S. App. 467, 82
Fed. Rep. 471, 27 C. C. A. 326.

The facts are stated in the opinion.
Mr. J. Parker Kirlin for petitioner.
Messrs. Wilhelmus Mynderse and
Black & Kneeland for respondents.

Mr. Justice Gray delivered the opinion of the court:

head, which was not tight. The vessel, after touching at other ports, touched on February 19, 1895, at Pernambuco, and there took on board 200 tons of wet sugar (from which there is always drainage), which was stowed, with proper dunnage, between decks, aft of the wooden bulkhead. At that time the vessel was trimmed by the stern, and all drainage from the sugar, flowing aft, was carried off by the scuppers, which were sufficient for the purpose when the vessel was down by the stern, or on even keel in calm weather. There was no provision for carrying off the drainage in case it ran forward. She discharged other cargo at Para; and on March 10, when she left that port, she was 2 feet down by the head. She continued in this trim until she took on additional cargo at Port of Spain, where the error in trim was corrected, and she left that port on March 18, loaded 1 foot by the stern. It was agreed by the parties that there was no damage to the wool by sugar drainage until she was trimmed by the head at Para; that the wool was damaged, by sugar drainage find

The Botany Worsted Mills, a corporation of New Jersey, and Winter & Smillie, a firm of merchants in the city of New York,* respectively owners of two separate lots of bales of wool, shipped at Buenos Ayres for New York on board the steamship Portuguese Prince, severally filed libels in admiralty in personam in the district court of the United States for the southern district of New York, against James Knott, the owner of the vessel, to recover for damage caused to the wool by contact with drainage from wet sugaring its way through the bulkhead and reachwhich also formed part of her cargo.

The Portuguese Prince was a British vessel belonging to a line trading between New York and ports in the River Plata, Brazil, and the West Indies, loading and discharging cargo and having a resident agent at each port. The bills of lading of the wool, signed

ing the woll, at Parat, or between Para and Port of Spain, and not afterwards; that, aft er she was again trimmed by the stern at Port of Spain, none of the drainage from the sugar found its way forward; and that the court might draw inferences.

The district court entered a decree for the