"Q. What was the weather when you started? A. The weather was good enough when we started.

"Q. Did you see any impropriety about starting? A. Not then.

"Q. How fast was the wind blowing when you started? A. I suppose about 10 miles an hour.

"Q. Did you suppose there would be any trouble until these lines parted between the scows? A. I didn't think there would be any trouble until we got nearly down to ripraps.

"Q. You thought it was all right up to that time? A. Yes sir.

"Q. What time of day was that? A. About 10 o'clock.

"Q. Had there been a great decrease in the wind from the night before? A. Yes sir.

"Q. And everything looked safe enough? A. If it had not been we would not have started.

"Q. The wind was north? A. Yes sir.

"Q. Until you had passed the black buoy (halfway from Sewell's Point to ripraps) you did not anticipate any trouble at all? A. No sir.

"Q. Was there a great sudden increase in the wind then? A. Yes sir. "Q. And the sea commenced to get rough? A. Ebb tide, yes sir.

"Q. How far were you from the dumping grounds when you first felt that there was likely to be trouble? A. Well, about a mile and a half from the ripraps then.

"Q. Near to the dumping grounds? A. About a mile and a half.

"Q. If the lines had held together don't you think you would have been all right? A. Yes sir.

"Q. How far from the black buoy had you anticipated trouble for the first time? A. Nearly down to the ripraps.

"Q. How far from the ripraps? A. A couple of miles.

"Q. How fast were you moving before that? A. I don't know, not over three miles an hour.

"Q. Don't you remember the sun shining that day? A. The sun was shining some.

"Q. Was there every indication of clearing weather when you started? A. Looked something like it, but the wind was increasing."

The inspector, who was accustomed to those waters, at no time before the accident suggested any return with the scows. That might have been done when in the vicinity of the black buoy, but not when near the ripraps; and the inspector anticipated no trouble until near the latter, and thinks that no harm would have ensued had not the lines parted, and the testimony shows that the lines. were good. This is further confirmed by the fact that during some five or six hours after the accident the Luckenbach and another tug, the Hudson, were maneuvering in picking up the scows, in dumping them and in taking them all back, except one which stranded. All the witnesses, moreover, testify to the sudden great increase of the wind when in the vicinity of the ripraps. I see no reason for charging the master with foreseeing such an event, or that the lines would part.

The alleged fault in not returning before reaching the ripraps is of much the same character. The superintendent of the line had been urging expedition upon the master. This would not be a reason for excusing him for incurring any unreasonable risks; but it is evident from the inspector's testimony that no trouble was anticipated by any one and no idea entertained of returning, until the accident had actually happened through the breaking of the lines in the sudden increase of wind near the ripraps, and after a return was impracticable with such a tow, through the narrowness of the

channel. Even if the master made an error of judgment in not returning sooner, this is not the same thing as negligence, and negligence does not seem to me to be established by the testimony. The Allie and Evie, supra.

Without considering therefore the further defense that the plaintiff's agent was cognizant of the sale of the tug shortly after the accident and that he permitted the sale to proceed to a purchaser for value without asserting or making known any claim of lien upon the tug by reason of this accident, I think the libel should be dismissed upon the grounds first above stated, with costs.

Samuel Park, for appellants.

Le Roy S. Gove, for appellees.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

PER CURIAM. The facts are quite fully stated in the opinion of the district judge. In one respect his statement of them is fairly open to criticism. The testimony hardly warrants the finding that there was a sudden increase of wind; but we concur with him in the conclusion that the allegations of fault on the part of the tug are supported mainly by the wisdom that comes after the event. It would have been good judgment to stay in port. It would have been good judgment to turn back at Sewell's Point, when return was feasible and safe; but we are not prepared to say that in deciding to push on the master of the tug displayed such bad judgment as would amount to recklessness or negligence. The tows were staunch, well-built scows, two-thirds to three-fourths loaded; there was a government inspector along, who apparently was authorized, in the event of urgent necessity, to allow dumping short of the designated ground. The catastrophe was precipitated by the breaking of a bridle rope furnished by the tow, which seems to have been in very poor condition. Although the storm had not finally broken, the wind had gone down very much before they started from the haven they had put into overnight, and according to the weather records it continued to fall much lower during the two hours ensuing their departure. The master made a mistake in pushing on beyond Sewell's Point, but we concur with the district judge in the conclusion that it was not an error of judgment so gross as to justify a finding of negligence. The decree is affirmed, with costs.

(113 Fed. 1018.)

FORCE v. SAWYER-BOSS MFG. CO. et al. (Circuit Court of Appeals, Second Circuit.

No. 131.

1. PATENTS-VALIDITY-ESTOPPEL TO DENY.

March 10, 1902.)

All persons who join in the sale and assignment of a patent, or participate in the consideration received therefor, are estopped to allege its invalidity, and a corporation of which such persons own all the stock is equally estopped.

2. SAME-INFRINGEMENT-NUMBERING MACHINE.

The Sawyer patent, No. 462,065, for a numbering stamp, held infringed as to claims 1 and 2.

Appeal from the Circuit Court of the United States for the Eastern District of New York.

This was a suit for infringement of patents. From a decree in favor of complainant, defendants appeal.

The opinion filed below, and here reprinted from III Fed. 902, was in full as follows:

THOMAS, District Judge. The bill is filed to enjoin the defendants from infringing two certain letters patent, one of which, to wit, No. 462,065, issued October 27, 1891, is alone the subject of present controversy. The defendant is a business corporation, formed by Willard W. Sawyer, Robert A. Stewart, Thomas H. Boss, and George T. Holihan, who own all the stock of such corporation, and are its sole officers and directors. Previous to the formation of the corporation, all of such persons, either directly or indirectly, concurred in the sale of said letters patent to the complainant, and by reason of such sale, or by participation in the consideration received therefor, are estopped from averring the invalidity of the patent. Rob. Pat. 787, 984, 1021; Curran v. Burdsall (D. C.) 20 Fed. 835; Underwood v. Warren (C. C.) 21 Fed. 573; Purifier Co. v. Guilder (C. C.) 9 Fed. 155; Barrel Co. v. Laraway (C. C.) 28 Fed. 141; Woodward v. Machine Co., 8 C. C. A. 622, 60 Fed. 283. The defendant corporation is estopped by this act of the persons who created, direct, and own its capital stock, and are its sole directors and officers. National Conduit Mfg. Co. v. Connecticut Pipe Mfg. Co. (C. C.) 73 Fed. 491. Thus all the persons interested in the sale and in privity with the assignor are estopped, as against the assignee. Daniel v. Miller (C. C.) 81 Fed. 1000; Parker v. McKee (C. C.) 24 Fed. 808.

The remaining question relates to the defendants' infringement. The device is a numbering machine. The defendants' construction, as regards claim No. 2, is identical with that of the complainant, and is as follows:

“(2) In a stamp, the combination of a main frame, a longitudinally movable rod fitted thereto, and carrying similarly spaced numbering wheels, slots in said rod, a cross pin connected to the main frame, and passing through said slots, and an enlargement in one of said slots for receiving an enlarged portion of said pin to lock the rod in its depressed condition, substantially as specified."

In view of the validity of the patent as herein ascertained, infringement of that claim must be declared without further discussion. Claim I is as follows:

"(1) In a stamp, the combination of a main frame, a series of similarly spaced numbering wheels, corresponding ratchet wheels, detents for these numbering wheels and ratchet wheels operating radially within a support, pawls for imparting motion to said ratchet wheels, a movable yoke sustaining the numbering and ratchet wheels, a frame-like lever carrying the pawls and pivotally connected to said yoke and also to the main frame, and an inking lever fulcrumed to the main frame, and pivotally connected between its ends with the said lever which moves the pawls, substantially as specified."

In the defendants' machine the construction is such that the inking Dad and the operating pawls are both on the same side of the

51 C.C.A.-38

machine, while in the complainant's device they are upon opposite sides. The argument, as regards this claim, relates chiefly to the words, "a frame-like lever carrying the pawls, and pivotally connected to said yoke, and also to the main frame." The specification indicates that the frame-like lever should be of such shape as would carry the inking pad to the side of the machine away from the actuating pawls. The defendants have changed the shape of such lever so as to carry the inking pad to the same side of the machine as the actuating pawls. This is a mere change in the shape of the lever, whereby the inking pad is changed from one side of it to the other. There is no change in the mode of operation or the results attained. It is considered that this claim is valid, even when considered in connection with the Reinhardt patent, No. 425,581, and that the defendants should be enjoined from infringement thereof by the construction of their present device.

H. A. West, for appellants.

Henry Schreiber, for appellee.

Before WALLACE and LACOMBE, Circuit Judges.

PER CURIAM. Affirmed, on opinion of the circuit court.

(113 Fed. 1018.)

THE FRIESLAND.

(Circuit Court of Appeals, Second Circuit. February 25, 1902.)

No. 91.

1. SHIPPING-DAMAGE TO CARGO-LIMITATION OF LIABILITY

A provision of a bill of lading exempting the carrier from liability for loss or damage occasioned by unseaworthiness, provided the owners had exercised due diligence to make the vessel seaworthy, leaves upon the owners the burden of proving such due diligence, which includes thorough and careful inspection.

2. SAME-INSPECTION OF PIPES.

A cargo was injured by sea water which entered the vessel through d hole which had been worn and eaten by corrosion through the iron bottom of a valve chest three-eighths of an inch thick. The peculiar liability to corrosion of iron in such place was well known, and, while there was evidence of inspection, it was not specific as to manner in which such inspection was made, and it did not appear that the valve chest had ever been removed for examination since it was placed in the ship nine years before, or even that the valve itself had been taken out. Held, that such evidence did not show reasonably careful inspection, such as was incumbent upon the owners under a provision of the bill of lading requiring them to exercise due diligence to make the vessel seaworthy, in order to exempt them from liability.

Appeal from the District Court of the United States for the Southern District of New York.

This was a libel to recover damages for injury to cargo. From a decree for libelants, respondent appeals.

The opinion filed below, and here reprinted from 104 Fed. 99, was in full as follows:

BROWN, District Judge. On a voyage of the Friesland from Antwerp to New York in October, 1898, four shipments of libelants' goods were damaged by sea water, which gained access through a leak in the valve chest through which one of the steerage closets was discharged. The libel was filed to recover the damages. The evidence shows that the bottom of the valve chest, which was of cast iron and three-eighths of an inch thick, had become worn away by the combined action of corrosion and the play upon it of the valve, so that a circular hole about three-eighths of an inch in diameter was made, through which the sea water came in and did the damage. The chest was made fast to the side of the vessel inboard and had an opening to the sea. The valve inside of the chest, and about four inches inboard, was of brass, oblong in shape, and weighed about eight pounds. It was supported by brass pivots or pintles, which rested in cast iron sockets or pockets near the top of the valve chest. The valve swung outward from the pipe, so as to permit the discharge of the contents of the waste pipe; but at the bottom it swung back against a shoulder or stop, so as to prevent ingress of sea water into the pipe beyond the valve. There was originally about a quarter of an inch of free space between the bottom of the valve and the iron chest. Through the combined effects of corrosion and wear it was found on examination that the pintles had dropped fully half an inch in their original supports, permitting the valve to drop that distance from its original position until a hole was worn through the bottom of the chest, as above stated.

The iron chest was so placed that examination of the interior was difficult. There was a cap upon the top of the chest, which could be easily removed, and through this the valve could be taken out, and when that was done some examination of the inside of the chest could be made showing the wearing of the pockets and the dropping of the valve; and the bottom of the chest could then be seen through the pipe from the outside of the ship. The chest could also be detached from the side of the vessel. It was the habit of the respondent to make an inspection of all the steerage closets upon each voyage. Once a year there was a general overhauling. The vessel had been running about nine years. The chest and valve are the same that were originally put in. The bill of lading contains the following among its exceptions:

"It is also mutually agreed that the carrier shall not be liable for loss or damage occasioned by any latent defect in hull or machinery or appurtenances * or by unseaworthiness of the ship at the time of shipment or the commencement of or any period of the voyage, provided the owners have exercised due diligence to make the vessel seaworthy."

Assuming the validity of this stipulation (The Carib Prince, 170 U. S. 655, 18 Sup. Ct. 753, 42 L. Ed. 1181) the question presented is, whether the evidence shows the exercise of due diligence by the respondent to make the steamer seaworthy as respects the condition of the valve chest.

The question involved has been several times before this court in different forms. The burden of proof, it has been held, is upon the shipowner. The exemption in the shipowner's favor is in deroga