ber, 27, above. Whether this added detail of Surrell's is of itself a patentable variation, I believe I need not determine here, though it seems to me open to some question. I shall in any case assume for argument's sake that it is. Certainly, if in the form of "corrugations," it should be entitled to a narrow protection.

I need not dwell upon such elements as the damper door, which I considered before; there can be no invention in such a detail, any more than in having two legs, instead of one to each section, Passing these, I can come directly to the matter of infringement. In what terms is that feature described which distinguishes Surrell from Bernhard, I mean the connection between sections of the combustion chamber directly with the first return flue? In claim 1 it is described as consisting of flues made by "corrugations" in the sides of the sections; in claim 2, as "means upon the opposite face of each said section whereby flues, extending from the air and gas combustion chamber to the heat areas of said boiler, are formed." The distinction so maintained between the claims makes it necessary to hold rather rigidly in claim 1 to the word "corrugations"; it being clear that claim 2 is intended to speak more generally. Certainly there is no warrant whatever for speaking of the defendant's sections as having "corrugations" on the face of the sections. If the plaintiff can hold the defendant at all, it must be under claim 2.

Coming, then, to the defendant's boiler, and omitting any consideration of the fire box, which is, so far as I can see, functionally identical in all three structures, Bernhard's, Surrell's, and the defendant's, one finds the combustion chamber with a structural limit on one side-i. e., the grill of water legs but on the other structurally ended only after the whole chamber has been twisted on itself and abuts upon the front wall of the boiler. This space is, however, divided into three parts by two rows of columns or tubes, one leg of each row being in each section, precisely as Bernhard's combustion chamber was divided. The upper of these legs is not columnar, but a half square in section.

The gas, entering the chamber through the grill, passes through all three divisions of the chamber, and is sucked out at one end of the boiler into a return flue, whence it reaches the chimney. I hardly think I should have even thought of distinguishing between the three divisions of the combustion chamber at all, had it not been that the defendant has

called the last of them a "collecting flue," thus giving color to the supposition that it was in some way different in function from the others. But this cannot be, so far as I can see. It is true that the gases are drawn out only from the end of this upper or last division of the chamber, and that all of it must therefore pass up through the first and second, yet this would equally be true if there were no rows of columns or tubes within it.

If one looks at Surrell's boiler, and sees what he had in mind in describing the "flues" in his claim, it must be apparent that it was something altogether different from what the defendant has done. Flues are normally long, narrow passages through a wall, and that is how Surrell used the word. One may casuistically argue that, if you divide an open space by columns, the spaces between them are flues; but the impropriety of the term is obvious, as soon as one is candid. The tail has been made to wag the dog. Just as no one would properly think of regarding the two lower divisions of the combustion chamber as connected by flues, because there are columns within it, so one would not divide the third part from the rest, because, the twist being there most rapid, the columns are broadened at their circumferential end.

It is therefore entirely clear what Butler did. He took Bernhard's boiler and twisted the combustion chamber upon itself through an angle of substantially 180°, making it necessarily deeper and longer in section. He kept the two rows of water tubes, 25, changing the shape of the second row for the reason just given. Had he stopped here, there could be no conceivable question of the provenience of his boiler; but he did more, and it was only this step which has exposed him to any color of claim for infringement at all. Had he sucked the gas out of the end of all three of the divisions made by the two rows of tubes, he would have done no more than Bernhard; but he closed up the ends of the first two divisions and sucked out the gases only through the third. In so doing, however, he did not change his combustion chamber into three chambers connected by "flues," nor did he make the result different by calling the third division a "collecting flue." His boiler still shows the inheritance of its progenitor, and has no likeness to Surrell. Nor is it relevant that, after so doing, it has become possible to omit altogether the upper passage between the "crown sheet member" and the "dome."

It is clear, then, that Surrell's claim

ought not to be interpreted as covering the defendant's boiler. The words have a different meaning, and are used colloquially, not esoterically. The defendant has no flues, and to speak of the spaces between the columns as such is to ignore their origin, and to make the claim invalid. I therefore find that neither claim of patent 14,003 is infringed.

Nor do I believe that Butler copied Surrell's boiler, even after getting the supposed hint that a single-sided boiler might easily be made. Butler had no need to look to Sur

rell, and, when he made his boiler, he kept far away from him. He was working upon Bernhard's disclosure, for Bernhard was an employee of the defendant. He had nothing to learn and nothing to borrow from Surrell, though, as is commonly the case with inventors, Surrell supposed that all roads must of necessity lead to Rome. There is no evidence to support his quite gratuitous assump

tion.

The Counterclaim.

[4] Surrell's boiler was certainly disclosed before the date of filing of Butler's application, and before any date which can be stretched into an antecedent date of invention, the latter part of the year 1911. Surrell filed on November 25, 1911, and his Washington avenue boiler was in use still earlier. If the defendant can succeed at all, it must therefore be because it was an infringement to change Surrell's double boiler into a single one. There is no difference between the two forms, except that one side has been cast away and the space closed up. Indeed, it is possible that Surrell got the idea of a single-side boiler from Butler, in spite of his supposition that the derivation was quite the opposite. It makes no difference. There was nothing new in the idea of a single-feed boiler for either of them, because Bernhard had twice disclosed it in his patents, assuming that it was patentable at all. The idea being in existence, Surrell surely may make single his double boiler, whether it falls within Butler's claim 13 or not. If it does, the claim is invalid; if Butler's claim is to survive at all, it can be only because Surrell's single boiler does not infringe it. I need not decide where the truth lies between these alternatives. In neither event can the defendant succeed on this claim, and in the interest of the patent I may content myself with a finding of noninfringe

ment.

Bill and counterclaim dismissed, without costs.

Evidence held to show steamer at fault in collision with scow in tow in comparatively open water.

2. Collision 75-Failure of scows to carry lights required by International Rules held not to have contributed to collision (International Rules, art 3 [Comp. St. § 7839]; Inland Rules Act, § 2 [Comp. St. § 7906]; Inland Regulations, art. 3 [Comp. St. 7877]).

Failure of scows in tow on high seas to carry red and green lights, required by International Rules, art. 3 (Comp. St. § 7839), instead of white lights, required by regulations of Board of Supervising Inspectors, with approval of Secretary of Commerce, under Inland Rules Act, § 2 (Comp. St. § 7906), held not to have contributed to collision with steamer; the tug having carried lights required by Inland Regulations, art. 3 (Comp. St. § 7877), substantially identical with International Rules, art. 3.

In Admiralty. Libel by the Munson Steamship Line against the steam tug Helmsman, Robert Rogers and Frederick E. Jones, claimants, and libel by Frederick E. Jones against the steamer Tuscan, the Munson Steamship Line, claimant, wherein the Munson Steamship Line impleaded the tug

*Decree affirmed in 11 F. (2d) 444.

WARD, Circuit Judge. November 20, 1920, between 9:30 and 10:30 p. m., the steamer Tuscan was lying about 21⁄2 miles southeast of Scotland Lightship, waiting for a pilot to take her in to New York. The tug Helmsman, with a tow of two loaded dump scows tandem, with a hawser of 200 fathoms to the first scow, F. J. 33, and a hawser of 100 fathoms to the second scow, F. J. 22, making a tow of about 2,000 feet in length, was bound to the dumping ground on the high seas outside of the limits of the inland waters.

There was a light wind from the east, and the tide was ebb; but there was no proof of its force, except the testimony of the pilot that it was setting to the southward about the strength of the ebb, and the testimony of Cameron, second officer of the Tuscan, who is not shown to have any acquaintance with the harbor and coastal tides of New York, that he did not know the strength of the tide, but thought it was about 3 knots. The port bow of the Tuscan, heading about north-northeast, came into collision with the second scow, F. J. 22. Both vessels sustained damage.

The Munson Steamship Line filed a libel against the tug Helmsman, to which Robert Rogers and F. E. Jones filed an answer, as claimants of the tug. F. E. Jones, as owner of the dumper F. J. 22, filed a libel against the steamer Tuscan, to which the Munson Line filed an answer, as claimant, and also filed a petition under the fifty-sixth rule in admiralty, impleading the tug Helmsman. Both causes were tried together.

[1] The statement of counsel for the Munson Line at the time depositions were taken, a few days after the accident and before the libel was filed, as well as its answer to the libel of F. E. Jones, and the testimony of all its witnesses examined by deposition, was that the fault of the Helmsman was in letting her tow sag down under the influence of the ebb tide upon the Tuscan, which was going astern on her engines. I do not believe

this was so, because the tide was setting southward more or less in the course of the tow, which is said to have been southeast second officer of the Tuscan that the tide in 11⁄2 east. Nor do I credit the estimate of the had a force of anything like three knots. It these wide, open coastal waters could have much better evidence of the direction and lay upon the claimant of the Tuscan to give force of the tide, if it intended to rely upon its effect upon the tow as the cause of the collision. In point of fact, it relied principally upon a situation first developed by the pilot, the only witness it examined at the trial. He said that the Helmsman, after passing the Tuscan, changed her course to starboard, and so brought the tow down upon her. The testimony was quite overwhelming that the tow always remained in line with the tug, and I cannot accept this belated explanation, which is quite inconsistent with the statement of counsel for the Tuscan before the libel was filed, with its pleadings filed, and with the testimony of its witnesses examined by deposition within a few days after the collision.

What, then, did cause the collision? I think it was because, after the Tuscan had begun to proceed to New York on a course to pass the Helmsman and her tow starboard to starboard, the pilot thought he was getting too close, became excited, and rang full speed astern on her engines several times, which had the effect of throwing her bow to starboard toward the tow and bringing her into collision with F. J. 22. The orders to the engines, as given in the rough engine room and deck logs, do not correspond, as appears from the following: Deck. P. M. 10:20. Proceeding

Engine Room. P. M. un- 10:13. Stop.

der slow bells astern. 10:37. Full astern.

10:40. Barge

ship.

10:43. Stop.

10:38. Half astern.

10:39. Full astern. rammed 10:40. Full astern.

10:45. Stop.

So no orders were given to the engine, according to the engine room log, between 10:13 and 10:38; whereas, according to the deck log, the steamer was proceeding under slow bells astern between 10:30 and 10:37. But both logs do agree that for some six minutes the engines were working astern, during which period the collision took place.

The entry in the deck log has most obviously been altered, though the third mate, who made it, denies that there was any alteration. We naturally inquire why this

was done, keeping in mind the inferences to be drawn in odium spoliatoris. The words "slow" and "astern" have been written over erasures. The paper shows this plainly; the longitudinal blue line, on which "slow" is written, and a vertical red line, running through "astern," having been rubbed out. Counsel for the tug and the dumper points out that the word "proceeding" naturally means going ahead; that the expression "proceeding under var. bells" is frequently used, for instance, at 8:30 p. m. of the same night and twice in the entries for the preceding day. He gives reasons quite convincing to me that the word erased was "var.," for "various." The plural "bells" is consistent with various orders, but not with one order to slow. There is nothing to show what word was erased when "astern" was written in. I think it was "ahead," although that word was superfluous, if "proceeding" means going ahead.

I believe the Tuscan was proceeding on her course to New York after she had picked up the pilot and starboarded, so as to shut out her red light and to show her green to the tug and tow, and that there was plenty of water in this space of more than four nautical miles between Scotland Lightship and the Ambrose Lightship for a powerful steamer like the Tuscan, under full steam, to give a wide berth to a slowly moving tug and tow, such as the Helmsman's, even if they were swinging down upon her. When the pilot blew the alarm and rang full speed astern, some three minutes before the collision, he was evidently in a state of great excitement because of the danger of collision. Backing full speed astern for three minutes would have just the effect of carrying the Tuscan's bow to starboard, quite likely as far as north-northeast.

I do not see any inconsistency between the testimony of Clark, the master of the Helms man, and Lindsay, the mate. Both say the Tuscan showed her red light, heading about north-northeast while she was waiting for the pilot, and that afterwards she got on a course starboard to starboard with the Helmsman and her tow, and showed her green light. It is quite unbelievable that the Tuscan could not have kept well out of the

way of the Helmsman and her tow, by the exercise of ordinary care and skill, in these open waters.

[2] We now come to a question of law. It is admitted that the Helmsman and her tow were on the high seas, and not upon the inland waters, when the collision occurred; and that under the International Rules the dumper scows should have carried red and green lights, whereas they only had white lights, in accordance with the rules adopted by the Board of Supervising Inspectors and approved by the Secretary of Commerce applicable to barges towed by steam vessels between Troy and the boundary line of New York Harbor at Sandy Hook, in accordance with section 2 of the Inland Rules (Act May 25, 1914, 38 Stat. 381 [Comp. St. § 7906]). If this fact could have contributed to the collision, the Helmsman and F. J. 22 are also at fault. But the Helmsman did carry the lights required by article 3 of the Inland Regulations (Act June 7, 1897, c. 4, 30 Stat. 96 [Comp. St. § 7877]), which is almost exactly in the same words as article 3 of the International Rules (Act Aug. 19, 1890, c. 802, 26 Stat. 320 [Comp. St. § 7839]). Therefore the pilot and the licensed navigators on the Tuscan, who admit that they saw these towing lights, knew that the Helmsman had a tow of more than one scow and that the tow exceeded 600 feet in length.

Furthermore, the pilot admitted that he saw the two dumper scows from the time he first discovered them, half a mile away, down to the collision. So did the captain and chief mate; the latter, though saying he did not see the lights of the first scow, admitted that he could see the tug and the barges, and the course they were on, without any difficulty. The purpose of the International Rules was accomplished, even if the dump scows did not carry red and green side lights, as required by article 3. No defense of this kind was pleaded, and I find that the failure to comply with the regulation could not have contributed to the collision.

There may be a decree dismissing the libel of the claimant of the Tuscan and its petition under the fifty-sixth rule, with costs, and the usual interlocutory decree in favor of the owner of F. J. 22.