/'
476
FEDERA.L UPORTEB,
vol. 63
letters patent No. 268,912, dated December 12, 1882, to Henry Julian Allen, for "preserved compound for mince pies." W. Hey, f()l'appellant. ..Josiah 'Sullivan, for appellees. ;l:.4coMBE and SHIPMAN,. Circuit Judges. ,In. affirming the upon the ground that no is .,shown, it seems uJinecessary to ad4 anything to what has been ,said PYthe circuit judge, The patentee obtained his letters patent .after and many amendments, which; with increasing insistence,preaented his invention as a practically dry compound of f)ld ingredients, viz. beef,. sugar, apples, spice, currants, raisins, and salt,. with, if desired, a small quantity of starch, and also, if desired, "wine, brandy, or. other liquor," in Bosmall a proportion as to "create no sensible moisture in the composition." To secure the dryness which he pointed out as characteristic of his invention, he not only cooked the meat and desiccated the apples, btit· also avoided the use of ingredients containing a substantial quantity of free water. Cider was commonly used as an ingredient of earlier compounds. The patentee does not include it in his enumeration, and, when referred by the patent 'office to Atmore's compound, distinctly states that he uses none, .except such as may be present in the desiccated apples, "the cider being dried, and the free waters removed, when the apples are dried or evaporated. So that I have the cider in my compound without useless water, which may be added when the eonsumer wishes to use it." And in his final amendment of the specification he seekS to differentiate his invention from "mince-pie compounds [which] have heretofore been prepared in the wet state with free water present in the shape of wine, cider, or other liquid." Within the lines with which the patentee has himself circumscribed his patent, it must be construed, and, as thus construed, there is no infringement in a compound where there is added 140 pounds of boiled cider to every 1,200 pounds of the other ingredients, with the result of creating a sensible moisture in the composition. The decree ot the circuit court is affirmed, with costs.
PEij
THE EMPIRE. THE TRANSFER NO.8. T. THE EMPIRE and THE TRANSFER NO.3
et aI.
(Circuit Court of Appeals, Second Circuit;; No. 150.
September 12, 1894.)
L
CoLLISION Il'l' EAST RIVlIlR-BREACH OF STATUTE AND INSPECTOR8' RULES-
Tows; A steamer going east In the east channel of the East river is In fault for keeping in close to the Blackwell's Island shore, and attempting to pass a steamer going In the opposite directloll starboard to starboard, instead .of keeping In the middle ,of the river, and passing port to port, as required by. the state statute, thil rules of the superVising inspectors, and the CUB-
THE EMPIRE.
477
toinof navigation In that locality. Nor can she excuse herself on the pretense that, having a tow astern on a 5O-fathom hawser, there was danger 'that the tow would drift upon the rocks at Brown's Point on the Long Island shore; for, If there was any such danger, it WlUl! her dut7, to shorten the hawser, or take the tow alongside. .. SAME-ABSENCE 011' LOOKOUT.
Failure of the other vessel to have a stationed lookout wUl not render her llable, It appearing that her captain saw the approaching steamer In time to palls her safely according to the customary rules of navigation.
Appeal from final decree of district court, eastern distriot of New York, dismissing the libel as to Transfer No.3, and holding the Empire liable in solido for damages sustained by libelant's schooner Thos. Potter in collision with a car float lashed to the .starboard side of the Transfer. The schooner was lashed to the port .side of the Empire, which had another schooner in tow on a hawser of 60 fathoD:ls. :Wm. W. Goodrich, for Kennedy. Chas. C. Burlingham, for the Empire. Henry. W. Taft, for the Transfer No.3. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.
the east channel, and less than 125 feet from shore. The tide wa.s flood, the wind light, and the weather rainy, but there was no diffioulty in seeing vessels on the river. The Empire was bound east; the Transfer, west. The latter, just previ,ous to the accident, had (lome out of Harlem river, on a course about from Eighty-Nintll street, in the city of New York, to the upper end of Blackwell's Island, intending to round in shore, and thus take advantage of the eddy. The Empire rounded Lunatic Point (which makes out on the Blackwell's Island shore about a quarter of a mile below the upper end of the island), under a starboard wheel, passing within 150 feet of the point, and continued to swing in even closer to the shore as she proceeded. The channel is nearly 600 feet wide. The district judge held the Empire in fault for "going over to the Blackwell's Island side of the river, as she approached the turn at the head of Blackwell's Island, instead of keeping in the middle of the river." We concur in this conclusion. The statute of the state, the rule of the supervising inspectors, and the custom of navigation in the locality all required her to keep towards mid river, and to pass such vessels as she encountered. going in the opposite direction port to port. The excuse offered for hugging the Blackwell's Island shore is that, with a tow astern on a 50· fathom hawser, there was some chance, if she kept to starboard of mid river, of having her tow swing over on the rocks at Brown's . Point, on the Long Island shore. We agree with the district judge that the proofs fail to sustain such excuse; and, if there was any luch risk involved, it was the duty of the Empire to shorten the hawser, or to take the tow alongside. She should not so incumber herself that she cannot navigate according to law, and then suggest the inoumbrance as excuse for failure SQ.to do. It is quite olear
LACOMBE, Circuit Judge. The collision happened at about 8
';!ts
FEDERA.t'ind'ORTEIt, vol. 63.
'hat{' e ;:bee.. ha. td' nfM;, the ",eataBtI'9pb.ewould nothaveoccul'red;:and the, distrICt Judge, therein fault for the collision., , ' The appellants insist that:tJieTfan:sfer 'was guilty of fault to, Emp,ii'E!),:ounded of, \wo, Whistles. indicatmg 8. looquest'that both vessels.shouldpass,not accoioamg to rule port to" ,to .The thIS, 'JI\gnlU ,-was 'to, ,'the.' Transferg'l'ringan' answerIng ,si'gna}"oftwOwhistles; 'that thus, under the ,:rule .laid down. in Fed. ,'907, tneFhrlpire 'was not in fa,1i1tl'!6r contmmng on ,. c.ourse agreed upon," and the Transfer for not .accordance,"1ththe ag:oeement, port" Upon this question, however,-viz. what sig· nals were sounded by the Transfer?-there is a conflict of evidence, the witnesses for the Transfer testifying that sbe replied, not with two whistles, but with all. alarm signal of three whistles. judge, who saw mO,stot the Upon this conflict the found.. in, of the rrrausferras free from 'fautt,and we are not satisfled 'that hIS conclusIOn was er·...... .'.' .'.. ..,.' '., ..' allte. ,de.d..t.h.. T.ransfer.was .at.' t.. for an.y fal..I. u re .. , to stop' back; not IS she to be p.eld hable for not ha,ving a statidn'edll'ooko,ut, as her, captain . saw the at a, to'aIlowhim to pass her safely, according to the of,rtltffgation. 'Had. he seen.' sooner than' he did, before. f$heblew her two whistle signal, such dishavewarrflnted hiUl in assuming that the Empire was 'going to try to pass hIm starboard to starboard, because, .alpassed 150fee,t1, Point, the trend of th'e. that had she kept on wlthout,further starboarding, orp<)rted a httle, she would have been where she ought to have by the time the vessels reached each other. As an earlier vie"V o.f the EIilJ?ire would not have called for any change in the nilvigation of1;heTrasfer, the failure to discover her when she Lunatic Point in no way contributed to the collisioll. .. .. .' '., " The de«reeof the district court is affirmed, with interest to the . the Empire, and costs to the Transfer against the
,and
:tl.
THE StiLE. ,:NORTH (}EnMAN LLOY;()v. TROUTClN
et
at.
(CircUit Oourt ot Appeals, Second O1rcuit. No. 157. 1.
Are(juction of but 1 knot frama. full speed of 16 knots is not "moderate speed." . Nor is 10 knots moderate speed, if it does not enable the steamer' to avold a vessel sighted in her track at a distanceot from twice t()thltee times, her length. 59: Jl'ed. 716, affirmed.
AND SAIl, IN'FOG-¥ODl1lRATE SPEED,