case of a foreign corporation. The phrase "in which its principal office is located" clearly means in which the principal of fice of the foreign steamship company is located within the United States. There alone the action can be brought, and if the section intends to cover foreign corporations, for the reasons I have given, there the action alone will lie. It is no strain on that language to interpret it in the way which I suggest. The principal office of a foreign corporation will normally mean the principal place where it does its business in the United States. It may be, and it might be in this case, that the defendant did too little to justify the assumption of any jurisdiction at all. A certain amount of business must be carried on within the United States in order to get any personal jurisdiction, and that is the imputation which this statute carries along with others of the same kind. But no such point is raised in the It is conceded that, so far as the defendant goes, it subjects itself personally to jurisdiction if that is what the section means; that being so, I am satisfied that

case at bar.

in this case it means what I have said. Therefore the motion will be denied.

THE VICTORIA.

Petition of ALASKA S. S. Co.

owner of the steamship Victoria, an American vessel, for limitation of liability. On motion to dismiss petition and dissolve restraining order.

The claimants move to dismiss petition herein and dissolve the restraining order for the reason that the appraised value of the steamship, together with her freight pending at the termination of the voyage, exceeded the amount of the damages sustained or claims filed, and that there is no occasion for a limitation proceeding and depriving claimants of a trial by jury in assessing the damages. The appraisers herein fixed the value of the vessel at the termination of the voyage at the sum of $50,000 and the gross freight pending $29,821.60. The petition for limitation of liability alleges that steerage passengers were taken on board as follows: At Nome, 56; Akutan, 1; False Pass, 64; Seward, 2; Latouche, 32; Drier Bay, 35; total, 190. It is then stated that, after the arrival of the ship at the port of Seattle, 30 of the steerage passengers began separate suits in the state court, each for $1,000, because of the petitioner's negligence in providing improper sleeping places, food, ventilation, uncomfortable and filthy quarters, and because of "thirst, starvation, privation, pain of body and anguish of mind." Claims have been filed in this limitation proceeding by 43 claimants, amounting to $45,000. It is contended by the claimants that the petition should be

cember 23, 1924.) No. 8855.

1. Shipping 209 (2)-Dismissal of petition for limitation of liability refused on the ground of probability of claims in excess of value of vessel and pending freight.

Dismissal of petition for limitation of liability will be refused on the ground of probability of claims in excess of value of vessel and

pending freight, though the claims for bad condition in steerage common to all, filed by about one quarter of the steerage passengers, is much less, and the time for filing claims, as fixed by order of the court in the limitation proceeding, has expired, as such order will have no force if such proceeding be dismissed.

2. Shipping 209(1)—Duty of federal court

pending freight is much greater than the amount of the claims filed; that the time within which to file claims has been limited by this court, which limitation has expired; and that in any event the restraining order should be dissolved and the claimants permitted to pursue the remedy invoked in the state court and have the damage assessed by a jury.

Bogle & Bogle, of Seattle, Wash., for petitioner.

William Martin, of Seattle, Wash., for claimants and respondents.

NETERER, District Judge (after stating

claims in state court, where shipowner entitled to limitation of liability.

It is the duty of the federal court to adjudicate the rights between the parties and restrain litigation of the claims in the state court, where shipowner has right to a limitation of liability.

In Admiralty. In the matter of the petition of the Alaska Steamship Company,

must be denied. From the statements in the several claims filed it is clear that the condition that obtained in the steerage was common, and, if these claimants are entitled to recover, other passengers may have equal right, and the court cannot say that, if 43 claimants are entitled to $45,000, exclusive of costs, the remaining 145 would not be entitled to more than the difference be

If the petitioner has a right to limit liability, it is the duty of this court to adjudicate the rights between the parties and not shirk responsibility by permitting claims for damages to be litigated in the state court. In Re. East River Towing Co., the Supreme Court, on December 8, 1924, said:

"The choice of a jury trial is given when things take their ordinary course, not to break in upon the settled mode of adjustment when the ship is given up."

The Dauntless (D. C.) 212 F. 455, affirmed in Shipowners' & Merchants' Tugboat Co. v. Hammond Lumber Co., 218 F. 161, 134 C. C. A. 575, certiorari denied 238 U. S. 633, 35 S. Ct. 938, 59 L. Ed. 1498, has no application. The liability there was for a single elaim, and the value of the ship largely ex

ceeded the amount thereof. In the Rosa

(D. C.) 53 F. 132, it was held a petition in an admiralty court to limit liability and to restrain the prosecution of a pending action must show the existence or probability of existence of other claims and need of an apportionment.

The order of this court fixing or limiting the time within which claims may be filed is not a bar to the prosecution of an action within the period limited by statute if this proceeding should be dismissed. Hence there is a probability of claims in excess of the value of the vessel and pending freight, and the right of limitation is not defeated by the fact that the claims upon which suit has been commenced do not amount to the admitted value of the ship where there is a probability that there may be other claims. The Defender (D. C.) 201 F. 189.

Proceedings for limitation of liability may be maintained where the claims are less than the value of the vessel where the aggregate of the claims appears beyond question from the petition or otherwise. The George W. Fields (D. C.) 237 F. 403.

The motion is denied.

SCOTT v. MADISON WOOLEN CO. et al.

patented, using the materials of defendant and the services of its employees in experimenting and in perfecting the invention, which was used in the mill with his consent so long as he remained superintendent, defendant has an irrevocable license for its use.

In Equity. Suit by William F. Scott against the Madison Woolen Company and others. Decree for defendants.

James H. Thorne, of Madison, Me., and Wm. R. Pattangall, of Augusta, Me., for plaintiff.

C. W. & H. M. Hayes, of Foxcroft, Me., and Wm. H. Gulliver, of Portland, Me., for defendants.

PETERS, District Judge. This is a suit for infringement of a patent, asking for an accounting, damages, and an injunction.

The Madison Woolen Company is the only defendant served with process or appearing. The defense principally relied upon is an implied license to use the patented process. I find, from the evidence, the following facts:

The plaintiff was employed as superintendent in the mill of the defendant, the Madison Woolen Company, from 1905 to 1920. He was paid a salary, had no written contract of employment, and was subject to discharge at any time.

In 1909 the managing director of the company called the attention of the plaintiff to the fact that other mills were using to advantage a decating cloth, or leader, so called (an improvement in which is the subject of the invention in suit), and asked him to investigate the matter. The plaintiff both investigated and experimented; experiments in the mill extending over several months. He obtained various leaders and tried them

out in the mill. Noting their deficiencies, he finally, in 1910, devised one that served the purpose, and it was used in the mill until the plaintiff left his employment in 1920. He had obtained a patent in 1914 on application filed in 1910. Nothing was said about any charge for the use of the process while the plaintiff was employed as superintendent. At the trial he was asked:

"Q. Did you give them the right to use it

"A. I used it myself there, making me a success and the mill a success. There was never any agreement or anything about it." The plaintiff further said in his testi

mony:

"While I was there I was satisfied for them to use it and derive the benefit of it,

which added to my reputation and prominence, or whatever you may term it."

The plaintiff personally paid the expense of obtaining the patent. The experiments and work in making and perfecting the leader were done wholly with the labor and material of the defendant company, including the time of the plaintiff, that of the master mechanic, and others in the employment of the company. If a failure had resulted, the loss would have been that of the company.

No objection was made by the plaintiff to the use in the mill of the leader during the six years between the date of the patent and his leaving the mill.

Also, according to the plaintiff's own account, he acquiesced in the defendant's use of this leader cloth for some six years after the date of the patent, receiving his salary all the time. This feature is held significant in the Lane & Bodley Case.

I believe the facts stated amply warrant the finding of an implied irrevocable license or shop right, and that it would be inequitable to grant an injunction. Consequently the bill will be dismissed, with costs.

rev.18260k) 556

SHERWOOD v. AMERICAN SUGAR
FINING CO.

Shipping

21, 1924.)

RE

49 (3)-Hirer of derrick boat, li

The facts in this case bring it within the class of cases typified by Lane & Bodley Co. v. Locke, 150 U. S. 193, 14 S. Ct. 78, 37 L. Ed. 1049, McClurg v. Kingsland, 42 U. S. (1 How.) 202, 11 L. Ed. 102, and Solomons v. United States, 137 U. S. 342, 11 S. Ct. 88, 34 L. Ed. 667, in which it has been held, as quoted from the Solomons Case in the Lane & Bodley Case:

"When a person in the employ of another, in a certain line of work, devises an improved method or instrument for doing that work, and uses the property of his employer and the service of other employees to develop and put in practicable form his invention, and explicitly assents to the use by the employer of such invention, a jury, or a court, trying the facts, is warranted in finding that he has so far recognized the obligations of service flowing from his employment and the benefits resulting from his use of the property, as to have given to such employer an irrevocable license to use such invention."

See, also, Standard Parts Co. v. Peck, 264 U. S. 52, 44 S. Ct. 239, 68 L. Ed. 560, 32 A. L. R. 1033.

This case is also very similar to Callahan v. Capron Co. (D. C.) 280 F. 254, where Judge Brown says:

"To enjoin the defendant from the use of this device would result in depriving it of the benefit of the services and time of its foreman and tool maker, for which it has paid them."

able for extra charge if it worked more than eight hours daily, held not entitled to set off night shifts against days when it did not work.

One hiring derrick boat for certain number of days, during which, if needed, it might be worked eight hours, and who was liable for extra charge if worked more than eight hours night shifts, when boat was worked, against on any single day, held not entitled to set off days when it did not work at all.

GARVIN, District Judge. Exceptions to a commissioner's report, which finds that the sum of $2,859.90 is due the libelant from the respondent for hire of the former's derrick boat for a period of 68 days, during which extra shifts of labor were used in addition to the ordinary working hours per day, have been filed by the respondent.

The court has read with great care the testimony produced at the hearing before the commissioner and is of the opinion that the evidence supports his findings. Libelants' witnesses were men who actually worked on the boat and they very clearly establish that the boat worked at least two shifts per day, often three shifts, from July 29,