The bulkhead was a public dock, and the Graney No. 4 was rightfully moored there. This, however, in no way affects the obvious character of the place.

There is no indication to me, on the evidence here, that the Graney No. 4 was injured by reason of her work. On the contrary, I think it is not only probable, but plainly indicated, that she was injured by reason of the swells of the Silvia, which

sels, and there is no distinct line of cleavage, where the result of one fault ceased and a new producing cause commenced to operate, the rule of equal division of damages must be applied.

In Admiralty. Suit by Graney Bros., Inc., against the steamship Silvia. On exceptions to commissioner's report. Overruled.

See, also, 2 F. (2d) 99.

Alexander & Ash, of New York City (Ed

the stone bulkhead, when the Silvia carelessly passed so close and at an excessive speed, and that while, with her tender bottom and the condition under which she was handled, she was more susceptible at that time to damage than a boat with a better bottom would be, a condition which should have been considered by her owner, yet she was seaworthy. She had been there a week without evidence of any damage, and the traffic up and down the river must have had its small and large boats.

Violations of a statute, while relevant, are not necessary to find, where all the circumstances indicate a probable cause of injury or fault indicating negligence. I find, there fore, after carefully considering all the evidence and the probabilities appearing therefrom, that the Silvia was negligent, and that its negligence was a proximate cause for the injury to libelant's boat, and I also find that the libelant was at fault as above set forth, and that this fault materially contributed to the accident and the damage.

[4] I am fairly satisfied that the fault of the libelant occasioned the damage to a greater degree than the fault of the Silvia; but, both parties being found in fault under the rule governing this court, I cannot apportion the damage according to the degree in which they were to blame. "If there is blame causing the accident on both sides, they are to divide the loss equally." Cayzer v. Carron Co., 9 App. Cas. 873; The Catharine, 17 How. 170, 15 L. Ed. 233; The North Star, 106 U. S. 17, 1 Sup. Ct. 41,

27 L. Ed. 91.

Accordingly I decree that the damage be

divided.

THE SILVIA.

(District Court, E. D. New York. September 22, 1924.)

No. 5640.

Shipping 86(3)-Rule of equal division of damages applied.

Where the court has found that an injury resulted from concurrent faults of two ves

for libelant.

Kirlin, Woolsey, Campbell, Hickox & Keating, of New York City (William H. McGrann and William H. Arnold, both of New York City, of counsel), for claimant.

INCH, District Judge. This matter arises on exceptions to the commissioner's report. The interlocutory decree held both parties in fault, and directed that the damage, when ascertained, be divided.

The exceptions taken by claimant are twofold: One, that the commissioner erred in finding a total loss of the Graney; the other, that the commissioner erred in including in the damage all that happened to the Graney after a certain period in the catastrophe.

The exception to the finding of a total loss is overruled. It seems to me that the facts show such total loss.

The exceptions based on the claim that more damages have been allowed than proximately resulted from the accident present more difficult and interesting questions. After due consideration, I believe that these exceptions also should be overruled.

I base this decision on the fact that here

both parties have been found to be in fault, and that where such finding exists, and is justified by the facts, the rule seems to be certain authorities mentioned in my former that the damages are divided. I quote again decision. Cayzer v. Carron Co., 9 App. Cas. 873; The Catherine, 17 How. 170, 15

L. Ed. 233; The North Star, 106 U. S. 17, Admiralty (2d Ed., 1920) § 147, p. 312, 1 Sup. Ct. 41, 27 L. Ed. 91; Hughes on and subsequent pages. "But now it is quite settled, and there is no dispute about it, that the rule of admiralty is that, if there is blame causing the accident on both sides, they are to divide the loss equally."

My attention is drawn by claimant to the following cases on which it apparently relies:

Penn. R. R. Co. v. Washburn (D. C.) 50 Fed. 335: The facts in that case are differ

ent from the facts now before us. There certain damage was found to have arisen after the accident proper, plainly and solely, because a master would not hire men, who had offered their services, and thus, because of a desire to save money, and without the exercise of reasonable diligence, directly caused a loss of a considerable amount of the cargo. The line of cleavage between the accident and what happened thereafter was plain and readily ascertainable, and was a distinct situation which could be fairly found between the parties. It was not a case of mutual fault.

The Asbury Park, 147 Fed. 194, 78 C. C. A. 1: That case also differs from the case before us on the facts, although closer than the other cases cited. In that case the court states: "The case presented, therefore, is not one of mutual fault, the two causes contributing to produce a loss, but of two successive causes, distinct and separate from each other." Page 195. In that case the court held that the evidence showed that the boat would not have sunk, provided she had been properly pumped out, and indicates that adequate opportunity to pump out the boat existed, and that the master, instead of doing so, went to dinner.

The Luckenbach (D. C.) 200 Fed. 630, affirmed 214 Fed. 571, 131 C. C. A. 177. That case also differs on the facts from the case before us, and the court states (200 Fed. at page 637): "It is not a case of concurrent fault on the part of the tug and the barge." In that case, after the accident had happened, the master of the barge with adequate equipment ready, plainly was found to have acted in a careless manner, and thus produced what was really another complete accident.

There are other cases of somewhat similar nature, and it seems to me, in cases of mutual fault, that unless it plainly appears from the facts in each case that a decision thereon can be fairly and intelligently rendered, showing that the first accident was completed, both as to cause and effect, and thereafter something happened, in which only one party was concerned, that the rule of half damages as applied here is the proper rule. To be sure there runs through some of these cases of half damages a situation of fact, where two vessels are damaged, and, as the learned author (Hughes) states, "there is a tendency to extend this doctrine of comparative negligence." Page

317.

After all, this dispute would seem to be,

not so much as to whether the damages should here be halved, which would rather be in favor of claimant, whose vessel was found to be the cause of the accident, as to what damages should be so halved. In any case, only such damages can be recovered which are the natural and proximate result of a negligent act. This is often a difficult question to decide. It is conceivable that acts may increase and contribute to damages without being the producing cause thereof, as understood in the law. The Leland (D. C.) 19 Fed. 771, at page 780.

On the argument claimant intimated that the damages here would have been less if the Graney had been sunk where she lay, necessitating but her raising. Possibly this is so, but there is no proof in the record that I can find that indicates that assuredly the Graney would have so sunk. In fact, one of the claims of the libelant is, and it was one of the excuses most strenuously urged, that the operator of the Graney cut the lines to make her sink, and surely, if this were so, the libelant should not be blamed because under such circumstances the Graney refused to sink.

On the contrary, however, it seemed to me that it should have been plain to the operator that the Graney would not so sink, and yet in his endeavor to obtain this result he cut her adrift, and this was one of the several faults that I found contributed to the accident and the damages resulting therefrom, and thus caused by the mutual fault of both the Silvia and the Graney. In other words, in this case I am unable to see on the proof that clear line of cleavage which would be necessary to enable me to say, in justice to the parties, that here the accident proper, with all its surrounding circumstances, ended, and here a new negligent act or producing cause commenced.

Two distinct causes and effects, it seems to me, should plainly appear; else the rule followed by the commissioner in this case should apply. In the cases cited by claimant and others examined by the court, as already referred to, and aside from the question of mutual fault, such two causes clearly appear. They do not with equal clearness and certainty appear in this case.

The libelant objects to the commissioner having failed to include certain items made necessary to show that a total loss existed. My opinion is that they should have been allowed. In fact, I do not understand that claimant seriously disputes as long as a total loss is found. Accordingly, claimant's

MERRELL-SOULE CO. v. POWDERED MILK CO. OF AMERICA.

Sherman and South Dayton to make the powdered milk, and no doubt would have done so, had it not been for its butter making and cream business (a noninfringing business). The butter fats or cream was sold in the open market, and butter fats made into butter, which was sold to the Wilkinson Company and others.

Whether the master was right in deciding that there were recoverable profits in the

1924.) No. 488.

1. Patents 318(1) Defendant held liable for profits from infringement.

Defendant held liable for profits made from that part of its business which involved infringement of complainant's patent, though it made no profit on its entire business, on a finding by the master, supported by evidence, that the business was separable, and that the infringing part could have been carried on, and the profits realized, without aid from the other part.

both parties concede, upon whether a required amount of skimmed milk could have been bought in the neighboring territory to the two plants; for, if it could not, then it became necessary, in order to make powdered milk, to buy whole milk, which was at a If the busihigher price than skimmed milk. nesses were single and unitary, there were no gains and profits. Then, as the evidence shows, there was a loss from the cream and

It is not the province of the court to disagree with findings of the master, before whom the witnesses testified, on conflicting testimony, or upon testimony rejected by him as unbelievable, unless there was manifest error.

In Equity. Suit by the Merrell-Soule Company against the Powdered Milk Company of America. On exceptions to master's report. Modified and confirmed.

Howard P. Denison, of Syracuse, N. Y., for plaintiff.

Archibald Cox and Harry A. English, both of New York City, for defendant.

HAZEL, District Judge. The report of the master that the defendant company made profits from its infringement of plaintiff's process for making powdered milk, amounting to $57,481.83, embraces a complete discussion of the various questions involved, and gives reasons for disagreeing with the contention of the defendant, and little remains to be added thereto. He also found damages for $32,861.45, but recommends a judgment in favor of plaintiff for the profits only.

[1] Thirty-seven exceptions to the report have been filed by defendant, the most important arising from the finding that defendant conducted separable businesses that its butter making and cream business was separable from the powdered milk business, in which the infringing Stauff process alone was used, and, further, that it could have purchased skim milk from farmers in sufficient quantities in the territory or within a reasonable distance from its plants at

powdered milk business. In fact, the powdered milk business amounted to about onethird of the entire business, and the amount received from sales to about one-half of the joint amounts received from sales of butter and cream.

It is contended in the main that the powdered milk industry was not profitable, since it cost 544 cents per hundredweight, and not 322 cents per hundredweight, as found by the master. This difference in price, however, was due to the fact that whole milk, instead of skimmed milk, was bought. Defendant could have bought skimmed milk only to produce the powdered milk, but its cream and butter business required whole milk. The average value of skimmed milk was 25 cents a hundred pounds in the accessible territory.

From my examination of the proofs I think the conclusions reached were not unwarranted by the facts and circumstances. The evidence was sufficient to show that both businesses were conducted as separate enterprises. I hesitate to adopt the view, in the absence of satisfactory evidence, that it was necessary for defendant, in order to conduct its powdered milk business, to buy whole milk.

[2] It is not the province of this court to disagree with the master, before whom the witnesses testified, upon conflicting testimony, or upon testimony rejected by him as unbelievable, unless there was manifest error. He was justified in rejecting the statement of Howe, an interested witness, that whole milk generally was bought, because skimmed milk was not obtainable. The

surrounding facts and circumstances, together with the purchases of skimmed milk by plaintiff in the specified territory, corroborate the finding. Defendant's contract to supply all the butter produced by it to Wilkinson Company, entered into after starting out to make powdered milk from skimmed milk only, and the large sales of cream in the open market, were significant items in testing the truth of defendant's assertions on this point. Although the books of defendant were kept as though it was engaged in a unitary business, its statement of account filed herein indicate separated busi

nesses.

The questions relating to the possibility of buying skimmed milk daily in desired quantities in the territory nearest the defendant's plants were fully considered by the master. There were times, it is true, when it was necessary to buy whole milk and separate the cream therefrom for making powdered milk; yet it is thought, if reasonable effort had been made to purchase skimmed milk from the farmers, or if skimmed milk had not been secondary to whole milk, it could have been obtained in sufficient quantities. There was no substantial hindrance from lack of railroad facilities. The territorial situation and existing facilities for transportation of skimmed milk from different localities is fully discussed in the submitted report (main and supplemental report on exceptions), and reasons advanced for disagreeing with defendant's contention in relation thereto. It is not believed that the fluid skimmed milk would habitually have deteriorated because of transportation from the various specified points. It was shown that plaintiff had bought in the open market in 1910 to 1914, inclusive, a large quantity of skimmed milk in substantially the same territory wherein defendant's two plants were operated, and shipped the same to its plant at Arcade and made powdered milk therefrom. Nor is the contention established by the evidence that plaintiff by its daily purchase of skimmed milk, exhausted the supply or that it could not have purchased more had it desired to do so.

Defendant in its account included a credit of $17,440.79 for depreciation of tools and

machinery, and $3,256.79 for depreciation of "real estate and buildings," under which the equipment and apparatus was listed. The master found that such depreciation amounted to $13,083.49 only, basing his figures on the testimony of plaintiff's witness Clark, whose figures, however, were estimates. He was unable, he testified, to procure from Mr. Howe any documents upon which to base a more accurate depreciation during the various years of operation. It was asserted that the books containing the required items had been destroyed, but the exhibit statements 1 to 17, taken from the yearly reports of the treasurer of the defendant, fairly disclose the value of these items. According to the exhibit sheet the total depreciation of tools, machinery, and equipment apparently amounted to $21,545.29, the amount being fairly ascertained by deducting ten per cent. per annum from the given values. Defendant's account therefore, in my opinion, should be credited with said amount, and two-thirds thereof allocated to the powdered milk business, inasmuch as it was testified that the milk-drying equipment depreciated twice as quickly as the equipment for other uses.

Defendant's account should also be credited with $807.48 for dismantling and removing equipment from Sherman to South Dayton. This expense, I think, should be charged as a part of the infringing business. The fact that the Sherman plant was sold at a substantial profit, necessitating removal of the equipment to South Dayton is not thought a sufficient reason for denying the credit.

Other exceptions to the master's report filed by defendant have been examined, but are found to be without merit, and must therefore be overruled. This court has not deemed it necessary to examine the conclusions with relation to reasonable royalties or damages.

The report of the master as to the recovery by plaintiff of the profits of the powdered milk business is approved, except as to depreciation of tools and equipment and dismantling of the Sherman plant.

Decree may be entered on two days' notice to defendant.

No. 356.

Patents 328-805,068 and reissue 13,929, for method and apparatus for feeding glass into molds, held not infringed.

The Hitchcock patents, No. 805,068, for method, and reissue No. 13,929, for apparatus for automatically feeding molten glass into molds, which are paper patents, the inventions never having gone into commercial use, conceding them to be operative, held not infringed.

In Equity. Suit by the Hartford-Fairmont Company against the United States Glass Company, with the William J. Miller Glass Engineering Company and William J. Miller as intervening defendants. Decree for defendants.

Bartlett & Brownell, of New York City, and Kay, Totten & Brown, of Pittsburgh, Pa., for plaintiff.

E. W. McCallister and Green & McCallister, all of Pittsburgh, Pa., for defendant United States Glass Co.

Edward A. Lawrence, of Pittsburgh, Pa., for intervening defendants.

Before BUFFINGTON, Circuit Judge, and SCHOONMAKER, District Judge.

The

SCHOONMAKER, District Judge. two Hitchcock patents in suit (Nos. 805,068, November 21, 1905, and reissue No. 13,929, June 5, 1915) are directed to two aspects of the same invention. They are a method and an apparatus for automatically feeding glass in the form of "gobs" into a mold.

In the old glass art, the ordinary method of procedure in making small articles of molten glass was for a workman to take a quantity of molten material from a furnace by the use of what is known as a "punty rod," which he injected into and twisted around in the molten glass in the furnace, and then transferred the mass so collected to a position over a mold of predetermined size into which the glass ran from the rod. Another workman stood by and with shears eut this stream of flowing glass, when directed. The gatherer then twisted his rod, so as to prevent the glass temporarily from falling off until another empty mold was supplied and the operation was repeated.

Hitchcock, who, it would appear from the reported cases in this circuit, was a glass engineer of experience and ability, conceived the idea of feeding mechanically molten glass into a mold in "gobs" of predeter

mined size, which were formed by the use of the necessary mechanism for the periodic reduction of pressure on the glass within the discharge chamber below atmospheric pressure. By this method, when a sufficient quantity of glass has been extruded or discharged through the discharge orifice to fill the mold, a pair of shears operates then to sever the stream of flowing glass to the discharge orifice. Then the severed stub is, by the action of pressure from above, drawn up into the heated discharge chamber again, and the operation repeats itself.

The characteristics of the claims are as follows:

Method Patent, No. 805,068.

"2. As an improvement in the art of feeding glass, the method herein described, which consists in causing the glass to assume a globular form of predetermined size or weight, as it passes from the feed orifice and then detaching the globule or drop from the supply body, substantially as set forth.

"3. As an improvement in the art of feeding glass, the method herein described, which consists in causing the glass to assume a globular form as it passes from the feed orifice, and then reversing the direction of movement of the glass at the orifice, substantially as set forth.

"4. As an improvement in the art of feeding glass, the method herein described which consists in causing a full flow of the glass through a suitable orifice and then checking such flow or feed movement of the glass by reducing the pressure on the glass at some point within the orifice below atmospheric pressure, substantially as set forth."

Apparatus Patent, Reissue No. 13,929.

"1. A glass-feeding mechanism having in combination a chamber or receptacle having an outlet for the gravity flow of the glass, and means for reducing the pressure below atmospheric pressure on some portion of the glass prior to its escape from the outlet, thereby varying the gravity flow or feed, substantially as set forth."

"3. A glass-feeding mechanism having in combination a chamber or receptacle having an outlet for the gravity flow of glass, means for severing the glass after its passage from the outlet, and means for reversing the movement of glass above the plane of severance, substantially as set forth."

"7. A glass-feeding mechanism having in combination, a furnace for producing molten glass, a displacement chamber connected thereto by a passageway capable of al