does not appear to be the equivalent of the Wertz device; nor is it apparent that they furnish substantial security against the danger of explosion from back-firing. Assuming that each of the elements of the claim in question other than the Wertz tape-holding and tape-feeding springs were old when the Wertz patent issued, the claim is nevertheless valid, provided by the use of these springs a new result is accomplished or a better result accomplished in a distinctively new way; and the evidence fairly indicates that the Wertz invention has accomplished a new and better result by practically eliminating danger from back-firing, at least when proper ammunition is used. The Clark patent seems to be the result of improvements made upon the Wertz device by plaintiff's president, after the purchase by plaintiff of the Wertz patent. The Clark device retains both the tapeholding and tape-feeding springs of the Wertz device, differing from the latter, in the respect most material here, that, instead of having the hammer and trigger integral, those elements are separate. The single claim of the Clark patent is printed in the margin. None of the pistols presented as evidence of prior use contain, so far as shown, the tape-holding and tape-feeding springs of Wertz and Clark or their equivalent. 3 [2] What has been said regarding the prior art as affecting the validity of the Wertz patent has more or less pertinency to the Clark patent. It is urged, however, that preliminary injunction should not issue in the absence of adjudication of the validity of the patent sued on. No such hard and fast rule pertains in this court; nor is it imperative that infringement be shown beyond a reasonable doubt. Where plaintiff's title to a patent is clear (as is the case here), and the record shows a fair probability that the patents are valid, and there is a sufficient showing of public acquiescence therein, and that infringement exists, the same considerations relating to the exercise of discretion in issuing injunctions in patent causes pertain as in equity causes generally; that is to say, injunction should be granted or withheld according as, upon a balancing of convenience and inconvenience, seems necessary to the protection of the rights of the parties. Blount v. Société Anonyme du Filtre Chamberland Systême Pasteur, 53 Fed. 98, 101, 3 C. C. A. 455; Grand Rapids v. Warren Bros. Co., supra. We think a substantial showing of acquiescence on the part of the public in the 3 "A toy pistol comprising a casing, an anvil at the upper end of said casing, a support for a roll of fulminate strip at the lower end of said casing beneath said anvil, enabling the strip to pass in a direct course from the roll over the anvil, a strip-holding flat spring engaging the strip near the anvil to prevent retrograde movement thereof, a hammer pivoted in the casing, provided with a side beveled shoulder, a spring actuating the hammer against the anvil to explode the fulminate, a flat feeding spring carried by the hammer with its edge in engagement with the fulminate strip and acting upon the cocking movement of the hammer to feed the strip over the anvil, a trigger pivoted in the casing and provided with a head co-operating with the said shoulder, and a spring to retract the trigger whereby when the trigger is pressed its head will engage the said projection, cock the hammer, and passing therefrom release the hammer, and then when itself released will return to normal position." case of both the Wertz and Clark patents is shown. Plaintiff's pistol, manufactured under the Wertz patent, had been on the market for about five years, and its manufacture under the Clark patent about three years, when defendant began its alleged infringement. During that time, so far as shown by the record, no other manufacturer has employed the tape-holding and tape-feeding spring devices of the Wertz and Clark structures. This acquiescence is a proper element entering into the exercise of judicial discretion with respect to the issue of preliminary injunction. If the District Judge took the proper view of the validity of the two patents involved, there was room to find infringement. While defendant claims to have manufactured under the Bean patent (No. 1,098,215, May 26, 1914), it does not appear to employ the tape-retaining and tape-feeding springs of Bean. It does, however, use the precise flat springs commercially used by plaintiff, and which seem within the disclosures of plaintiff's patents; for while the Wertz patent does not describe the two springs in question as flat, the Clark patent does specifically so describe them. True, defendant's hammer is not integral with the trigger, while the Wertz hammer is; but we think the claim in question is not necessarily limited to a trigger integral with the hammer, especially as the record indicates that it was old to form the hammer and trigger in one piece. Indeed, the examiner so declared in connection with the history of the Wertz patent. This being so, infringement is not avoided by making the hammer and trigger separate from each other. It is true, also, that defendant's hammer and trigger differ from that of Clark, in that the latter has a beveled shoulder from which the trigger extension slides by way of releasing the hammer, effecting what is called a "wobbling movement," while defendant employs a wire trigger projecting below the guard, the resiliency of the wire aiding the trigger in slipping past the hammer; but, so far as appears from this record, these changes are not necessarily controlling, for there seems a reasonable probability that they may ultimately be found to represent substantial equivalents. A number of considerations were properly addressed to the court's discretion, including an alleged cutting of price by defendant and the sale by it of inferior ammunition, which facts, if established, might materially affect plaintiff's toy pistol trade. The public favor with which the Wertz and Clark pistols have been received has a bearing upon the question of invention, when otherwise in doubt. [3] Complaint is made that the injury to defendant from the issue of injunction is disproportioned to the injury plaintiff would suffer from its denial. But in view of the showing as to the extent of plaintiff's business, and the lack of as definite showing of defendant's loss as might be desired, we cannot say that the District Court, taking the entire case into account, improvidently exercised a discretion in favor of injunction. It is also complained that the court refused to require of plaintiff a bond for stipulated damages, according to the practice recognized in Grand Rapids v. Warren Bros. Co., supra. This question was likewise addressed to the discretion of the District Judge; and the case presented fails to show that the discretion was improvidently exercised It should be unnecessary to say that we are not deciding the ultimate rights of the parties as they may be developed on final hearing, and perhaps on fuller testimony. It results from these views that the order complained of should be affirmed, with costs. The affirmance will be without prejudice to such further application, if any, as defendant may be advised to make, upon proper and sufficient showing, for reconsideration of the order complained of with reference to the matter of bonds by the respective parties, which would probably be within the competency of the court without the reservation stated. (219 Fed. 134) THE BEAVER.† (Circuit Court of Appeals, Ninth Circuit. January 4, 1915.) No. 2365. COLLISION 82-STEAMSHIPS IN FOG-VIOLATION OF RULES. Article 16 of the International Rules (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 326 [Comp. St. 1913, § 7854]), providing that a steam vessel hearing, apparently forward of her beam, the fog signal of a vessel the position of which is not ascertained, shall, so far as the circumstances of the case admit, stop her engines, and then navigate with caution until danger of collision is over, imposes a positive duty, and, where a vessel violates the rule and a collision follows, she cannot avoid liability without showing, not merely that her fault probably did not contribute to the collision, but that it could not have done so. [Ed. Note. For other cases, see Collision, Cent. Dig. §§ 170-174; Dec. Dig. 82. Collision rules, speed of steamers in fog, see note to The Niagara, 28 C. C. A. 532.] Appeal from the District Court of the United States for the First Division of the Northern District of California; R. S. Bean, Judge. Suit for collision by Olaf Lie, master of the Norwegian steamship Selja, on behalf of himself and the owners, officers, and crew, against the steamship Beaver; the San Francisco & Portland Steamship Company, claimant. From the decree, libelant appeals. Affirmed. For opinion below, see 197 Fed. 866. See, also, 219 Fed. 139, 135 C. C. A. 37. E. B. McClanahan, S. H. Derby, and Louis T. Hengstler, ail of San Francisco, Cal., for appellant. William Denman and Ira A. Campbell, both of San Francisco, Cal., for appellee. McCutchen, Olney & Willard and Denman & Arnold, all of San Francisco, Cal., advocates. Before GILBERT and ROSS, Circuit Judges, and VAN FLEET, District Judge. ROSS, Circuit Judge. The record in this case is very voluminous and has been very carefully examined, as have also been the elaborate and able briefs of the respective parties. The case grew out of a collision between the steamships Selja and Beaver near Point Reyes For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Rehearing denied March 8, 1915. on the coast of California. The collision resulted in the sinking of the Selja and the bringing of three suits against the Beaver-the main one by the master of the Selja on behalf of her owner, officers, and crew, to recover for the loss of the ship and her equipment and for the loss of the personal effects of her officers and crew; the second, an intervening libel on behalf of the owners of the Selja's cargo; and, the third, an independent suit by the charterers of the Selja against the owners of the Beaver to recover for loss of freight. The three cases were consolidated and tried together, resulting in both vessels being held in fault by the trial court and in an interlocutory decree providing, among other things, that the damages sustained by them. be apportioned under the usual rule of cross-liabilities, subject to certain specified offsets; that the master of the Selja have and recover from the Beaver on behalf of the officers and crew of the Selja, excluding himself, the full damages suffered by them, without offset of any kind, and also have and recover from the Beaver on behalf of the owners and underwriters of the cargo of the Selja the full damages sustained by its cargo, without offset of any kind, and reserving for final adjudication other questions of damages until after proofs should be taken before a commissioner, to whom the cases were referred for the purpose of taking such proofs, ascertaining and computing the damages in accordance with the interlocutory decree, and with directions that he report to the court such damages, together with all of the evidence produced before him. Subsequent to the making of the order of reference, the respective parties entered into such stipulations and agreements as enabled the trial court to fix the various items of damage as a matter of law, which it did in and by the following finding: 1. Cargo owners.. 2. Officers and crew of Selja: Alfred Halvorsen, 1st officer.. Arvid Bjorn, 3d officer.. Rambek Eggen, Chief engineer. Choi Hoy, carpenter. 3. Damages of Olaf Lie, master of the Selja. 4. Damages of William Jebsen, owner of the Selja: Value of the Selja exclusive of the items hereinafter mentioned ... $200,344 41 643 50 372 00 249 90 458 28 349 30 292 50 791 10 284 75 1,973 23 171,000 00 Provisions for Chinese crew of Selja. 261 45 Cost of keeping Chinese crew in San Francisco, pending their return to China... 160 63 Cost of returning Chinese crew to China. 1,771 20 Cost of maritime declaration made by the master of the Selja 5. Damages to the Beaver. 43 00 31,829 18 6. Damages of the Portland & Asiatic Steamship Company, charterer of the Selja: For loss of pending freight... 10.742 21 Bunker coal, flour slings, etc.. 3,209 04 135 C.C.A.-3 It was admitted that the several amounts above specified should bear interest at 6 per cent. per annum from the date of the collision to the entry of the final decree, and that the cargo owners and the officers and crew of the Selja, other than her master, were entitled to judgment against the Beaver for their full damages without offset, and that the damages of the owner and master of the Selja and of the Beaver be apportioned, "and that, if any balance be found due from. the steamship Beaver to said libelant, Olaf Lie, individually and also on behalf of the owners of said steamship Selja, there be deducted therefrom one-half of all damages awarded under clauses 2, 3, 4, and 5 of this (interlocutory) decree, and that, if no balance be then due, no damages be recovered by said libelant for himself individually or for the owners of said steamship Selja, but that, if any balance be found due, said libelant have and recover said balance from said steamship Beaver for himself and the owners of said Selja in proportion to the respective amounts of their claims." As half of the cargo damages were more than the half damages awarded to the Selja, the result was that the master and owner of that ship recovered nothing; and to that effect, in part, was the final decree. The appeal is from that portion of that decree, and from the further provision thereof that the costs be divided. It is conceded by the appellant that, if the trial court was right in holding both vessels in fault, the decree appealed from is correct. It is, however, strenuously contended on its behalf: First, that the Selja was not in fault; and, secondly, that if so her fault did not contribute to the collision, and hence that the libelant should have been awarded the full amount of damages suffered, with interest and costs. At the time of the collision, and for some time before, a dense fog prevailed. The Beaver, which was a passenger as well as a freight ship was on her regular run from San Francisco, Cal., to Portland, Or., and was proceeding, according to the contention of the appellant, at about 15 knots an hour, and according to the contention of the appellee at about 12 knots an hour. That either was excessive speed under the circumstances prevailing is conceded by the proctors for the appellee, so that in that respect, at least, the Beaver was clearly in fault. That fact, of course, attached to her some liability. Was she solely responsible for the collision? is the question. It occurred at 3:16 p. m. of September 22, 1910. The Selja was bound for San Francisco from Yokohama, Japan, in command of the libelant, Capt. Lie. She encountered the fog at 1 a. m. of the day of the accident. Except for the fog the weather was good, and the sea was calm, with a long, rolling swell. When she entered the fog, the third officer, then on watch, called the captain to the bridge, where he remained practically continuously, directing the navigation of the ship up to the time of the collision. He testified, among other things, substantially that from 1 o'clock a. m. to 3:05 p. m. of September 22d, the Selja was running at half speed; that at 2:50 he heard a whistle that sounded loud and clear from three to four points on his port bow, which he thought was the Point Reyes whistle; and that he continued to hear that whistle at intervals of 35 seconds to the time of the col |