quired by pilot rule 7 to stop, reverse, and come to standstill, when it became apparent other vessel had disregarded signals. 5. Collision 91-Jamming of steering gear of vessel undertaking proper method of passing held not proximate cause of collision. Jamming of steering gear of vessel which had undertaken normal and proper method in navigating of passing port to port held not proximate cause of collision, even though, had the gear not been jammed, the collision might have been avoided. In Admiralty. Libel by one Young, master of the steamship Lady Brenda, against the steamship Sabine Sun and the Sun Oil Company, in which the Sun Oil Company, as owner of the Sabine Sun, filed a cross-libel against the Lady Brenda. Decree for crosslibelant. Biddle, Paul, Dawson & Yocum, of Philadelphia, Pa., for libelant. Lewis, Adler & Laws, of Philadelphia, Pa., for respondent. THOMPSON, District Judge. This case was heard upon libel and answer and crosslibel, and arose out of a collision in the Delaware river on March 27, 1925, between the steamship Lady Brenda, owned by the Dawson Line, Limited, a British corporation, and under charter to the Munson Steamship Line, and the Sabine Sun, owned by the Sun Oil Company. Lady Brenda was bound from a port in Cuba with a cargo of centrifugal sugar on a voyage to Philadelphia. She is a British-built steel screw steamship of 3,167 gross tons, about 325 feet long, 48 feet beam, and 22.2 feet deep. The Sabine Sun is an American-built steel screw tank steamship of 6,728 gross tons, 429 feet long, 59 feet beam, 31.4 feet deep. At the time of the collision, the Sabine Sun was bound light from Philadelphia to Sabine Pass, Tex. The collision occurred at a point approximately a mile above Fourteen-Foot Bank light, shortly after 6 p. m. During the late afternoon there had been intermittent fog upon the river, but it had cleared somewhat, and the lookout upon each vessel had observed the other vessel when from three-quarters of a mile to a mile apart. There is considerable discrepancy in the testimony as to some of the facts in the case, but the pertinent facts are not difficult of determination. The Lady Brenda had taken on a pilot at a point somewhere between Overfalls Light vessel and Cape Henlopen. After taking on the pilot and while passing Brown Shoal buoy No. 7, according to the navigating officers of the Lady Brenda, her course was set at north by west, magnetic, which was held without change until just before the collision. According to her pilot, the course set while passing buoy No. 7 was north by west one-half west, magnetic, which was kept until buoy No. 10, south of Fourteen-Foot Bank light, was passed 1,000 feet on the starboard side, and then changed to north by west, and she was on that course when the Sabine Sun was sighted. There was a strong ebb tide and, because of the fog, the Lady Brenda was proceeding slowly at about two knots over the ground. The Sabine Sun was taking the usual course for outgoing steamships down the river, when the Lady Brenda was sighted; her course being about south by east one-half east. When the Sabine Sun was seen by those on the Lady Brenda, she was on the Lady Brenda's port bow and showing her starboard side. The Lady Brenda was well over on the west side of the channel, as shown by her course marked on the chart in evi dence, while the Sabine Sun was in about the same position further upstream. In this situation, if the pilot rules had been observed, the facts incident to the collision show that they could have passed each other in safety. It was testified to by all the witnesses examined on that point that, under the orders of the pilot on the Lady Brenda, she gave two short blasts of her whistle to indicate her intention of passing starboard to Sabine Sun are equally unanimous in testifystarboard. The witnesses on behalf of the ing that they heard but one blast from the Lady Brenda, and were thus led to suppose it was intended to pass port to port. At all events, the Sabine Sun replied with one blast. This would seem to indicate that the Sabine Sun failed to hear the two-blast signal. Otherwise, in the ordinary course of navigation, unless flagrantly violating rule II, she would not have answered two whistles with one. Upon giving her first signal, the Lady Brenda started her engines full speed ahead, and, after hearing the single whistle from the Sabine Sun, replied with two whistles and kept her speed. The Sabine Sun replied again with one whistle. After carefully weighing the evidence, I can find no reason to doubt the veracity of the witnesses for the Sabine Sun, and therefore find as a fact in the case that the first signal of the Lady Brenda was heard on the Sabine Sun as but one blast of the whistle. The Sabine Sun, having heard but one whistle and replied with one, immediately put her helm hard aport, throwing her to starboard, and then, hearing the second signal of the Lady Brenda, the master ordered the wheel 21 F.(2d) 121 put to starboard; but the wheel had become jammed, so that the helmsman could not obey the command, and the Sabine Sun continued on her port wheel to starboard. It was testified by the witnesses for the Sabine Sun that, when they sighted the Lady Brenda, she was practically dead ahead. The witnesses on the Lady Brenda testified that the starboard side of the Sabine Sun was visible, and that the Sabine Sun was apparently in a position where, if she maintained her course, she would cross the bow of the Lady Brenda unless she changed her course to starboard. Under rule IV, if they were approaching each other head and head (that is, end on, or nearly so), it was the duty of each to pass on the port side of the other, and in that event the Lady Brenda, having given the first signal, should have given one short and distinct blast of her whistle, and the Sabine Sun should have answered promptly by a similar blast of her whistle, and thereupon the vessels should pass on the port side of each other. But, if the courses of the two vessels were so far on the starboard side of each other as not to be considered as meeting head and head, the Lady Brenda should have given two short and distinct blasts, which the Sabine Sun should have answered promptly by two similar blasts of her whistle, and they should pass on the starboard side of each other. Inasmuch as the testimony shows that the Sabine Sun appeared on the port bow of the Lady Brenda, it should have been apparent to the pilot and navigating officers that the situation did not come within the latter clause of rule IV, which would justify the signaling by two whistles, and therefore rule VII applied to the situation. That rule is as follows: "When two steam vessels are approaching each other at right angles or obliquely so as to involve risk of collision, other than when one steam vessel is overtaking another, the steam vessel which has the other on her own port side shall hold her course and speed; and the steam vessel which has the other on her own starboard side shall keep out of the way of the other by directing her course to starboard so as to cross the stern of the other steam vessel, or, if necessary to do so, slacken her speed or stop or reverse. "If from any cause the conditions covered by this situation are such as to prevent immediate compliance with each other's signals, the misunderstanding or objection shall be at once made apparent by blowing the danger signal and both steam vessels shall be stopped and backed if necessary, until signals for passing with safety are made and understood." Under that rule, the Lady Brenda, as shown by her own witnesses, had the Sabine Sun on her port side, and it was her duty, therefore, to hold her course and speed. While the action of the pilot shows that he might be said to have held his course, he obviously did not obey the rule in regard to holding his speed, for immediately upon giving the signal the engines of the Lady Brenda were started full speed ahead. It being apparent that the two-whistle signal was not understood, the navigator of the Lady Brenda should, upon hearing the one answering blast, have immediately stopped her engines and backed. Both vessels did stop their engines, and backed and dropped anchor, when it was too late to prevent the collision. If the Lady Brenda had maintained her speed of three knots through the water or two knots over the ground, with the ebb tide holding her back, and in favor of her stopping and getting out of the way, it is clear that no collision would have occurred, for, as it did occur, the stem plate of the Lady Brenda collided with the port side of the Sabine Sun about amidships and scraped along her side, which would indicate that, if she had obeyed the rule, she would have been far enough below the Sabine Sun to have avoided the collision. A few feet would have been sufficient. [1-3] I find that the primary cause of the collision was that the Lady Brenda failed to maintain her slow speed and started full speed ahead, without waiting for an answering passing signal from the Sabine Sun. Where two vessels, coming from opposite directions, are meeting head on, or nearly so, in a channel of sufficient width to give clearance, with no risk of grounding, the port to port passing is the normal and proper method of navigation, and one vessel is not entitled to assume that another will pass her starboard to starboard until two whistles have not only been blown, but answered. Bilbster (C. C. A.) 6 F.(2d) 954. And, if they are approaching each other as much as 12 to 2 points, they are to be considered as head and head, and bound to pass port to port under the rule above quoted. The Victory & The Plymothian, 168 U. S. 410, 18 S. Ct. 149, 42 L. Ed. 519. The [4] The port to port passing being, therefore, the normal and proper method of navigation, the navigator of the Lady Brenda was put in the position of responsibility of judging whether the ordinary port to port passing was practicable. Having taken that responsibility, and it being apparent that the Sabine Sun had disregarded her signals, and being in a situation of doubt whether the starboard to starboard passing could be accomplished, it was his duty to stop, reverse, and come to a standstill, until the course of the Sabine Sun had been ascertained with certainty and the risk of collision removed. The New York, 175 U. S. 187, 20 S. Ct. 67, 44 L. Ed. 126; The Munaires (C. C. A.) 1 F. (2d) 13. Instead of stopping and reversing, and coming to a standstill, as might easily have been done with the ebb tide, the navigator of the Lady Brenda, while a situation from the signals existed which should have put doubt into the mind of a careful navigator, started his engines full speed ahead, with the inevitable result of a collision. [5] I have not overlooked the fact that the steering gear of the Sabine Sun was jammed, which prevented her from being under such control as might have enabled her in extremis to avoid the collision by putting her wheel to starboard. This was not, however, the direct and proximate cause of the collision, as the Sabine Sun had undertaken the normal and proper method, in navigating, of passing port to port, and the immediate and proximate cause of the collision, the full speed ahead of the Lady Brenda without waiting for an answering signal, preceded the condition caused by the jammed steering gear. The sole fault for the collision must be placed upon the Lady Brenda, and a decree may be presented for the cross-libelant, with reference to a commissioner to ascertain and report the damages to the Sabine Sun, unless they shall be fixed by the parties by agreement. LATHROP v. RICE & ADAMS CORPORATION. District Court, W. D. New York. May 31, 1927. 1. Patents 327 (14)-Decree for infringement against user is conclusive as to all matters involved against manufacturer, who openly conducted defense. Where a suit against the user of an infringing device is openly defended by the manufacturer, who has complete control of the defense, a decree holding the patent valid and infringed is conclusive against him in a sub sequent suit against him by the same complainant; but the decree is not so binding unless he had full control of the defense, with right to appeal. 2. Patents 81-To establish prior use to defeat a patent, court must be satisfied, by proof beyond reasonable doubt. To establish prior use to defeat a patent, the court must be satisfied by the proof beyond a reasonable doubt. 3. Patents 328-880,713, for improvement in can-washing machine, claims 2-4, 9-13, held valid and infringed. Blair patent, No. 880,713, for improvement in can-washing machines, claims 2-4, 913, held not anticipated, valid as against claimed prior use, and infringed. 4. Patents 312(1)—Plaintiff in suit for Infringement has burden of proof. by defendant has burden of proof. Plaintiff in suit for infringement of patent In Equity. Suit by Harry D. Lathrop against the Rice & Adams Corporation. Decree for complainant. See, also, 6 F. (2d) 91. John S. Powers, of Buffalo, N. Y., for plainJoshua R. H. Potts, of Chicago, Ill., and HAZEL, District Judge. The patent in suit to Blair, No. 880,713, granted March 3, 1908, for improvements in can-washing machines, assigned to plaintiff, was litigated in the Northern district of Illinois, Eastern division, Judge Carpenter presiding, in an action brought by the plaintiff herein against the defendant Bowman Dairy Company, and held valid and infringed as to the claims there in controversy. The defendant in that case was a user of a can-washing machine manufactured by defendant in this action, which had been made a party defendant in the action against the user; but, on motion, the service of process was quashed on the ground that the Rice & Adams Corporation had no regular and established place of business in the district where the action was brought. After entry of the final decree, plaintiff brought action in this district, where defendant conducts its business, for infringement of the same claims of the patent that were in issue in the former case, and now contends that defendant is bound by the final decree in the action against Bowman Dairy Company, claiming that it conducted and controlled the defense at its own expense and later paid the judgment that was obtainedin short, that Rice & Adams Corporation was the decree as to all matters which were or the real defendant, and therefore bound by might have been asserted in defense of the charge of infringement; that it cannot again 21 F.(2d) 124 be heard, either as to the validity of claims, prior use, or noninfringement; and that, if it was dissatisfied with the prior decree, it should have appealed the case. Defendant, however, denies that said decree is res adjudicata, or binding upon it, or that it is chargeable with privity with the Bowman Dairy Company, and testimony was taken upon this issue. [1] It is undoubtedly a rule of law that, in a suit against the user of an infringing machine, where the manufacturer defended the action and became the real defendant, and a decree, that was affirmed on appeal, determined the claims of the patent to be valid, such a decree became res adjudicata, and the manufacturer cannot again be permitted to defend an action subsequently brought on the same claims for infringement. Bemis Co. v. Brill Co. (C. C. A.) 200 F. 749; Souffront v. Le Compagnie Des Sucreries, 217 U. S. 475, 30 S. Ct. 608, 54 L. Ed. 846. And if a manufacturer of an infringing device has complete charge and control of an action against a user, with the right of appeal, and the patent is held valid and infringed, the judgment of the court is conclusive upon him, in an action afterwards brought against him by the same complainant, as to all matters of fact or law that were involved therein and relating to the particular device which is the subject of controversy. D'Arcy v. Staples et al. (C. C. A.) 161 F. 733; Bigelow v. Old Dominion, 225 U. S. 111, 32 S. Ct. 641, 56 L. Ed. 1009, Ann. Cas. 1913E, 875; Rumford Chem. Works v. Hygienic Co., 215 U. S. 156, 30 S. Ct. 45, 54 L. Ed. 137; Greenleaf on Evidence, § 523; 3 Robinson on Patents, § 1176; Gen. Elec. Co. v. Morgan (C. C. A.) 168 F. 52; Fish v. Vanderlip, 218 N. Y. 29, 112 N. E. 425, Ann. Cas. 1916E, 150; Walz et al. v. Agricultural Ins. Co. (D. C.) 282 F. 646. This principle finds unqualified support in Kessler v. Eldred, 206 U. S. 285, 27 S. Ct. 611, 51 L. Ed. 1065, wherein it is expressly stated that, "if rights between litigants are once established by the final judgment of a court of competent jurisdiction those rights must be recognized in every way, and wherever the judgment is entitled to respect, by those who are bound by it." In Elliott v. Roto Co. (C. C. A.) 242 F. 941, it was sought to estop the defendant from interposing its defense in an infringement suit, on the ground that it was bound by a decree in a previous suit on the same patent, in another federal jurisdiction, by the same plaintiff, against a seller of a motor manufactured by defendant. Estoppel, however, was denied on the ground that, in the earlier action, the defense was not open or avowed, and accordingly the element of mutuality was lacking, the defendant being unaware that plaintiff knew that it was defending the case in place of the named defendant. The court ruled that whether the defendant was estopped or not depended upon the evidence; that one who relies on estoppel must prove that the defense was actually conducted by the defendant in the subsequent action. Such, I conceive, is the rule of law applicable to the present situation. The merits pertaining to the question of res adjudicata and privity may now be examined. Admittedly the attorneys of record in this action also participated as counsel in the case against Bowman Dairy Company. They were associated with Parker & Prochnow, employed by Rice & Adams Corporation, as patent counsel in the prior action, with the consent of Montgomery, Smith & Herriott, solicitors for defendant. Parker & Prochnow, or Mr. Bean, an associate, examined witnesses on deposition. It is shown that a Mr. Stevens and a Mr. MacFadyen, representatives of Rice & Adams Corporation, were present when depositions were taken in New York City and Chicago, and furthermore that Mr. Adams, of the defendant corporation, attended taking depositions at Buffalo. Indeed, there is abundant evidence showing that Rice & Adams Corporation was keenly interested in the pending litigation, even to the extent of its patent counsel arguing the case in court, and after the interlocutory decree knew that Bowman Dairy Company, through its attorneys, was engaged with Mr. Potts in effecting a settlement, and, moreover, that it supplied the money, or part thereof, to adjust the litigation. To apply the doctrine of res adjudicata or privity, however, it must be shown that Rice & Adams Corporation had full control of the defense, including the right of appeal from the decision of the court. This has not been sufficiently shown. Indeed, the witness Herriott, who appeared throughout the litigation as attorney for the Bowman Dairy Company, testified that neither Parker & Prochnow, his counsel, nor Mitchell & Staples had any control over the defense interposed by the Bowman Dairy Company, and after the decision holding the patent valid and infringed he was unwilling to take an appeal, and advised his client not to appeal, but to make a settlement; that he refused to permit Rice & Adams Corporation to appeal or control the final disposition of the case in any way, and that he independently initiated negotiations for a set tlement, and, he added, if Rice & Adams Corporation had declined to contribute towards the settlement, it would not have sold any more machines to his client. This evidence is not discredited, though I have considered the criticisms made upon it by counsel for plaintiff. Herriott's various references to Parker & Prochnow or to Mitchell & Staples, as to adjournments or fixing dates of argument, does not prove that the latter had control of the case or the right of appeal from the decree of the court. Nor do the exhibit letters written by Mitchell & Staples to Herriott, or to plaintiff's counsel, relating to adjustment, stating that, if the amount is not acceptable, "we shall be obliged to appeal and will do so," overcome Herriott's evidence that his firm alone controlled the litigation, and, on his advice, defendant Bowman Dairy Company did not appeal or consent to an appeal. Since Rice & Adams Corporation was not a party, it had no right of appeal, and cannot be deemed to have been bound by the decree (Australian Knitting Co. v. Gormly [C. C.] 138 F. 92), which, in fact, was entered after settlement of the case and without defendant being aware of its entry. Plaintiff, however, presumably anticipating this conclusion, has given testimony bearing on the validity of the patent and its infringement. [2, 3] Thirteen claims are involved, of which the following are said to be infringed: 2, 3, 4, 9, 10, 11, 12, and 13. It will suffice to set out claim 12, which specifically embodies the entire structure, and the broad claim, 13: "12. A receptacle washing apparatus comprising a vat having a plurality of compartments, a circulating system connected to each vat, means to heat the contents of one or more of said vats, discharge pipes connected to said systems having upwardly directed discharge openings, opposed upright discharge pipes having lateral facing discharge openings, and endless carrier comprising laterally spaced members adapted to receive thereon receptacles to be cleansed, said endless carrier having an upper horizontal run projecting beyond said vat at the intake end thereof, a receptacle beneath said projecting portion of said run of said carrier to receive material draining from receptacles positioned thereon, a housing mounted upon said vat through which the receptacles are traversed upon said carrier, and lateral guides for the receptacles supported upon said projecting portion of said carrier. "13. A receptacle washing apparatus comprising a support, a carrier adapted to receive receptacles thereon, cleansing medium pipes having discharge orifices directed toward said receptacles positioned thereon, and means adapted to receive from the receptacles, when positioned upon the carrier and in a condition uncontaminated by the cleansing medium, the material contained in said receptacles when in use, and discharged therefrom when said receptacles are positioned upon said carrier." The patented washing machine comprises a long, oblong table, with an endless chain conveyor, tanks and vats underneath the table, and a hood over it. In the hood there is provided washing, sterilizing, and drying instrumentalities for drying a series of inverted cans, which rest on the chains as they are conveyed, for draining the residue or clinging milk or cream adhering to the interior of the cans, and then washing and drying them. At the feed end of the machine, there is a slanting drip pan or table projecting from the hood (Fig. 3-41) where the cans discard their drippings, which, in their travel, first flow into a discharge spout. The movements of the cans are progressive and continuous during the operation of the machine. The drip pan apparatus is separate from the washing operation and entirely free from contact therewith. The alleged infringement relates exclusively to the can-draining attachment, by which the milk or cream is enabled to drip into a spout before the cans are rinsed. The utility and commercial success of the invention is not questioned. It quickly went into general use and has taken the place of prior can-washing machinery. The machine of the defendant, according to the evidence, corresponds, at the forward end, to the drip-saving arrangement by which the cans pass into the machine and are washed and dried, and then leave the machine at the opposite end, substantially as described in the Blair patent. Defendant's machine is driven by pumps, motors, and an oscillating device that intermittently moves the cans forward, as shown in plaintiff's Exhibits 5 and 6, pictorial representations of defendant's machine. Its operation was observed in the Bowman dairy plant and also in the plant of the defendant. The defendant challenges the validity of the patent, mainly on the ground that the defendant, as early as 1902, prior to the Blair invention, openly manufactured a can-washing machine with a drip-saver attachment, and, incidentally, that the patent is anticipated by the prior art, and, in any event, defendant's structure is not an infringement. First, as to anticipation: The prior art does not disclose a power-driven washing ma |