the two devices, however, reveals the fact that the defendant has in· corporated into his machine the essence of the Farnsworth anil Barnes invention, and that the mechanism he employs is substantially the same. In the patented machine the button.is so situated that the tack goes forward to the clinching die on a line parallel with the flat side of the eye of the button. In the defendant's machine the button is so situated that the tack, in going forward to the clinching portion, is presented to the hole of the eye at right angles to the flat side of the eye, and therefore passes through the eye before reaching the clinching die. Merely changing the position of the button does not constitute, in our opinion, a material difference; nor can the fact that the tack first passes through the eye of the button before the process of bending or clinching begins, relieve the defendant. of the charge of infringement of the first claim. This would be to give too narrow and technical a construction to the language of the claim. Concerning the second claim, the defendant's machine clearly shows the same elements, or their equivalents, in combination. In relation to the tack, and for forcing and clinching its point tbrough the eye of the button, the die of defendant's machine performs the same functions as the recessed lip or die which forms one of the elements of the second claim of the patent in suit. The defendant contends that Barnes was the sole inventor of the improvements covered by the patent, and that it was not the joint invention of Farnsworth and Barnes, as stated in the patent, and that, therefore, the patent is void. There is much conflict of testimony on tbis question. Upon the record before us we cannot give much weight to the testimony of Barnes. Upon careful consideration, we do not think the defendant has established this point with sufficient clearness and certainty to overthrow the patent. Decree for complainant.
F ANWOOD. 1
(District Court, 8. D. New York. January 5,1886.)
COLLISION-FERRY SLIP-TuG AND FERRy-BOAT-DUTY TO YIELD TIlE RIGHT OF' WAY.
The tug W.· with a schooner in tow, in passing up the Jersey shore, went opposite and near to the Communi paw ferry slips, so as to obstruct the entrance of the ferry-boat F .. which was approaching her slip, and was about one-quarter of a mile distant. Both on, and the ferry-boat collided with
.Affirmed on appeal to the circuit, July, 1886, no opinion being filed.
the schooner at the upper end of the slip. Held, that both were in fault: the tug, for not keeping out of the way, as she might have done, having the ferryboat on her starboard hand; the ferry-boat, because the course and intent of the tug were apparent, and her timely of two whistles, indicating her intent to cross, ought to have been perceIved by the ferry-boat, and because she had no right to persist in her course at the expense of collision, when she might have avoided it after the tug's intent was clear.
In Admiralty. Wilco,t, Adams <t Macklin, for libelant. De Forest <t Weeks, for the Fanwood. Hyland <t Zabriskie, for the Wash bum. BROWN, J. On the thirtieth of December, 1884, between 11 and 19 o'clock in the forenoon, as the ferry-boat Fanwood was approaching her slip at the Railroad, New Jersey, she came in collision with the libelant's schooner Mediator, in tow of the tug Washburn, upon a hawser about 80 feet in length. Either from the rebound of the blow, or from the forward motion of the ferry-boat, the bow of the schooner was carried a little towards the shore, so that her bowsprit came in contact with the side of the pier which forms the upper rack, a few feet from the end of the pier. This circumstance establishes beyond dispute the placeof the collision. The tide was strong ebb. The Mediator had been taken in tow by the Washbum a short distance below the Communipawferry, and was bound for the Hoboken coal docks. According to the evidence of the libelant's witnesses, and the witnesses for the Washbum, she was making about two or two and one-half knots per hour against the ebb-tide, and was coming up about 200 or 300 yards off the ends of the piers below the ferry. The pilot of the Washburn, when a little below the ferry, suddenly observed a ferry-boat (the Communipaw) coming out of the slip, without sounding, as he says, any previous long whistle, as she should have done. Being but a few hundred feet below, and unable to cross her bows, the tug, though having the right of way, was obliged to give a sharp sheer to the westward, and pass under the stem of the ferry-boat, in order to avoid a collision. This brought him much nearer to the ferry slips,' Before passing astern of the out-going feny-boat he had observed the Fanwood in mid-river, coming west, and gave her two whistles, but heard no reply. After the Communipaw had passed ahead of him he again gave the Fanwood two whistles, but heard no answer. Being then opposite the slip which the Fanwood would enter, he rang his jingle bell to go ahead as fast as possible. At the last signal the Fanwood waR estimated to be one-qual'ter of the distance acrOS8 the river. The witnesses on the part of the Fanwood testify that they heard no whistles from the tug; that they passed the out-going ferry-boat from one-third to half way across the river ; that they gave four signals of one whistle each, but heard no whistles from the tug, except several short blasts, just before the collision, as a signal to the
schooner to drop the hawser. There is considerable conflict in the details testified to by the ferry-boat's witnesses, and they cannot 1:Ie harmonized. In general, they state that the first whistle was given about mid-river; the second, about one-third of the way from the Jersey shore; the third, when from 600 to 900 feet from the shore; and the fourth, when about 200 feet from the shore. The pilot and the engineer differ altogether as to the signals to slow and stop and reverse; the pilot stating that they were given at different times, with considerable intervals between them; that the slow bell was given between the second and third whistles; and that he stopped the engine at the third whistle, and backed at the fourth. The engineer testifies that the whistles came all together, within a second of each other. The testimony of several disinterested witnesses. establishes beyond doubt the fact that the two signals of two whistles were given by the tug as her witnesses state; and that the last signal of two whistles was given when the tug was already opposite the slip. Had the Fanwood been giving any proper attention to the tug, the latter's whistle would have been heard oraeen, since the tug could not at that time have been much over a quarter of a mile distant. Thi!! is evident from the place of collision, and from the known speed of both boats. At the time of cQllision the bow of the tug must have been about 120 feet above the end of the upper rack. 'l'he Fanwood was proposing to enter the middle of the three divisions which formed the ferry slip, and the lower Pllrt of that division was. somewhat less than 200 feet below the upper pier. The tug made only abol,t 300 feet, therefore, from the time she began to lap the middle division of the slip. She was making only from two to two and one-half knots against the tide, while the ferry-boat was crossing at about the rate of twelve knots, or about five times the speed of the tug. The Fanwood was consequently about 1,500 feet, or a quarter oia mile, distant from her slip when the tug was plainly beginning to obstruct her entrance. Under these circumstances, there was no excuse for this collision on either side. It was equally in the power of the tug and of the ferry-boat to avoid it. The tug,having the on her starboard hand, was bound to keep out of the way; the ferry-boat had the right of way. The tug, though she twice signaled her intention to cross the ferry-boat's bows, got no answering assent; and by the well-settled rules it was therefore at her own peril and risk tha·t she kept on, instead of giving way to the ferry-boat, as it was her duty to do. The Oity of Hartford, 11 Blatch£. 72; The City of Ohester, 24 Fed. Rep. 91. The master of the tug was doubtless acting under some irritation and provocation, since a few minutes before he had himself' been obliged to give way to the Communipaw in order to avoid collision, though he had the right of way. But one wrong does not excuse an-
other. Redress for the infraction of the rules must be sought in the penalties prescribed by law, not by running into collisions. If the tug, having been forced to the westward by the Communipaw, had had no other alternative to avoid the Fanwood but to keep on, that would doubtless have constituted an exception. under the twentyfourth rule; but I cannot find that she was under any such compulsion. After passing astern of the Communipaw she had only to wait about a minute and a half, going under a slow bell, 01' possibly stopping for a part of the time in the ebb-tide, and she would have given the Fanwood the free course to which she was entitled. There were no other vessels in the way to prevent the tug's stopping her headway for this brief time. Against the tide the tug had full and easy control of her position, and of her movements; and the tug must therefore be held in fault. The fault of the Fanwood is equally clear, because the course and intention of the tug and tow to cross the slip ahead were obvious to the ferry-boat in time to avoid them by any reasonable effort to do so. As I have said, had attention been given her from the Fanwood, the tug's last two whistles, Itt least, would have been either heard or seen. But whether the whistles were perceived or not, the tug was already plainly visible, obstructing and crossing the Fanwood's slip, when the Fanwood was nearly a quarter of a mile distant. The ferry-boat - could come to a dead stop in the water in less than half that distance. Though the tug was crossing the slip unlawfully, the ferry-boat had no right to run her down when her eJfort and intention were clearly perceived, and the ferry-boat could easily avoid her. There was nothing to prevent the Fanwood's stopping in time, and giving way to the-tug, as the tug had given way to the Communipaw a few moments before, and as it was the duty of both alike to do, rather than run into collision. Orockett v. Newtun, 18 How. 581; The Warren, 18 Fed. Rep. 559; The Frisia, ante, 249. The comparatively slow progress of the tug makes it certain that the tug must already have passed the middle division of the slip when the Fanwood was at least from 800 to 1,000 feet distant,-a space more than sufficient for the ferry-boat to have come to a stop in the water before reaching the tug and tow. Her keeping on, therefore, instead of stopping in time, when this obstruction was so plainly in view, could only proceed from a willingness to inflict injury, or gross neglect of timely precautions, or want of attention to the position of the tug and tow; for either of which the Fanwood would be equally culpable. The weight of evidence is clear that the ferryboat's engines were not reversed till she was very near the tow. The libelant is therefore entitled to a decree against both the tug and the in the usual form, with costs.
THE F. C. LATROBE. VASEY, Master, etc.,
MAYOR, ETC., OF BALTIMORE, Owner, etc.
(1Jistrict Oourt, 1J, Maryland. April 13, 1886.)
COLLISION-LIABILITY OF MUNICIPAL CORPORATION FOR DAMAGE DONE BY ICEBOAT IN RENDERING GRATUITOUS SERVICE TO ANOTHER VESSEL.
An ice-boat, maintained by the city of Baltimore to free tho harbor from obstructions, and to aid the commerce and navigation of the port, came into collision with a British steamer anchored in the harbor. Held, that the iceboat was in fault, and that the owner. although a municipal corporation, was liable in personam. Held, following The Fidelity, 16 Blatchf. 569, that public policy required that the city should not be deprived of the use of the ice-boat, but that the fact that no lien could attach to the offending boat furnished no ground for denying the remedy against the city in per8onam.
In Admiralty. Collision. John H. Thomas, for libelant. Bernard Garter, for respondent. MORRIS, J. On seventeenth January, 1886, the British steam-ship Sylvia having been loaded in the harbor of Baltimore, and made ready for sea, had proceeded to the quarantine grounds, and was lying there at anchor, waiting for her engineer, and some small stores, and a pilot to be put on board. The F. C. Latrobe is a large and powerful side-wheel steamer, built for the mayor and city council of Baltimore, to be used as an ice-boat to break the ice, and keep the harbor of Baltimore and the approaches free from obstruction by ice, and to aid the commerce and navigation of the port. On the sevJanuary, and prior thereto, the harbor had been more or 'less obstructed by ice, and the Latrobe had been engaged in breaking it up, and opening the channels. The steam-tug Calvin Whitely had -been employed by the agent of the Sylvia to put on board her the pilot, engineer, and stores, and she had also been employed to put a pilot on board anot,her British steamer also ready for sea, which was anchored near .the Sylvia. 'rhe steam-tug was disabled by an accident in the floating ice, and signaled for assistance. The Latrobe, which was not far off, came to her, and, at the request of the master of the tug, took off the persons and stores destined for the sea-going steamers, and proceeded to do what the tug had been disabled from doing. The pilot was safely put on board the first steamer, but, in attempting to get along-side of the Sylvia, the Latrobe struck the Sylvia a heavy perpendicular blow with her bow, just forward of the poop, on the starboard side, and did the Sylvia such damage that she was obliged to return to the port for repairs. The blow was the result of a miscalculation on the part of the master of the Latrobe with regard to the resistance of the ice, which was solid