the principal generating feature of the boiler, the gases being directed through and around the same by the use of well-known baffleplates and by the also well-known staggered arrangement of the tubes with respect to each other or to each vertical series. [7] The reverse inclination of the water-tubes is also of great practical importance with reference to placing, removing, or cleaning the same. [8] The ends adjacent to the fire-room are brought down within more convenient reach for handling, and in cleaning the natural tendency of the dirt is to gravitate toward the cleaner. [9] By this arrangement the steam and water drum D is located on the extreme front of the boiler. which renders it more accessible for inspection, setting up, or repairs, and its usual annendages, like the water and pressure gages, gage-cocks, etc., are brought within the nearest possible association with the attendant. [10] This new type of boiler is especially adapted for marine uses wherein a series of boilers are employed and which are frequently located upon opposite sides within the hull of the vessel, the fire-room being located intermediate of the same. [11] Having now described my invention sufficient in detail as ex

planatory of the claim, I wish it to be understood that I desire to secure by Letters Patent the broad combination of parts as set forth in the following claim: [12] In a sectional steam-boiler of the type described, the combination with the reversed inclined water-tubes of a transverse steam and water drum, located at the front of the boiler in the space above said tubes, as shown and described."

The most obvious difference between the Hoxie boiler and the defendant's boiler is in the fact that the Hoxie boiler, as heretofore constructed, has had sectional headers, while the headers of the defendant's boiler are nonsectional. The conclusion has already been expressed, however, that the Hoxie patent is broad enough to include boilers with nonsectional headers. This difference, therefore, does not enable the defendant to escape an adjudication of infringement. But the defendant's counsel contend that the Hoxie patent is void because of alleged anticipations by other patents. This defense, in my opinion, is not supported by the proofs. The Dickerson reissued patent, No. 1,993, granted in 1865, has a drum, as the defendant's expert, Mr. Stuart-Smith, admits, that covers the whole top of the boiler. It is therefore much higher than the Hoxie boiler, and probably could not be placed in a modern war vessel below its protected deck; and the testimony of Admiral Melville and Commodore Isherwood, which is not contradicted, shows that when tested in two naval vessels shortly after the Civil War it proved to be a complete failure. The Pratt patent, No. 439,684, of November 4, 1890, one of the two patents now in suit, while it has tubes inclined upwardly from the front to the rear, has other tubes inclined downwardly from the front to the rear. It has also a longitudinal drum. The Pratt patent, No. 428,632, of May 27, 1890, and the Pressard patent, No. 432,075, of July 15, 1890, have tubes inclined upwardly from the front to the rear, but each of them has a longitudinal drum. The remaining patents cited as anticipations have tubes inclined downwardly from front to rear. In none of these patents is there "the combination with the reversed inclined water-tubes [that is, with tubes inclined upwardly from front to rear] of a transverse steam and water drum located at the front of the boiler in the space above said tubes."

It is further argued that Hoxie's use of tubes inclined upwardly from the front to the rear was old, and that the transfer of the steam and water drum from its transverse position at the rear of the boiler, or from its longitudinal position, to a transverse position at the front of the boiler, involved no inventive genius. It must be admitted that Hoxie's statement in clause 1 of the specification-that "heretofore in this type of boiler the inclined water-tubes were set at an acute angle with the vertical face or front of the boiler, in other words were pitched downwardly from the front to the rear"-was not accurate. Dickerson's reissued patent, No. 1,993. Pratt's patent, No. 428,632, Pressard's patent, No. 432,075, and Pratt's patent, No. 439,684, all above referred to and all issued before the Hoxie patent, had reversed water-tubes. But I find no difficulty with this inaccurate statement of the prior art. If a patentee in his specification describes in appropriate language a real invention, and properly sets forth his claim to that invention, he is not to be deprived of it merely because

he has inadvertently erred in his reference to the prior art. The pertinent question is: Is the thing he described and claims an invention? The argument of the defendant's counsel is based on the assumption that the Hoxie patent must stand or fall "solely on the upward inclination of the generating tubes from front to rear." But the invention, as described by the patentee in clause 3 of the specification, is not so narrow. He there says that his invention.consists in reversing the inclination of the water-tubes, and in locating the steam and water drum at the front of the boiler in the vacant space above the tubes. These two things constitute his alleged invention, and they, in combination, are what he sets forth in his claim. Simple, very simple, the combination seems to be. But, so far as the record discloses, nothing like it was ever before devised. Some of the advantages of the Hoxie boilers are mentioned in the specification. Others are mentioned by the complainant's witnesses. The Hoxie patent seems almost to have revolutionized the art of constructing boilers for marine uses. Since 1897 Hoxie boilers have been installed in vessels of the United States Navy, aggregating 497,946 horse power, and in vessels of the navy of Great Britain, aggregating 291,850 horse power. In the vessels of all countries the Hoxie boilers ordered or installed now aggregate nearly 1,000,000 horse power. The Hoxie boiler combines compactness with safety, efficiency, durability, and great convenience in cleaning and repairing. It was introduced in the navy of the United States by Admiral Melville, while he was Engineer in Chief of the Navy, after examination of many other types of boilers offered to the Navy Department, and was selected by him because he deemed it "the best boiler of the class to be installed in the ships of the Navy of the United States." He declares that it has given "perfect satisfaction so far as the work of man can go," and that Hoxie was the first to solve the efforts of a hundred years to construct a light, safe, and economical marine boiler. Previous to 1897 the type of boiler principally used in the larger vessels of the United States. Navy was the fire-tube boiler. Between 1891 and 1897 a controversy had been carried on in engineering periodicals concerning the relative merits for marine uses of fire-tube boilers and water-tube boilers. This controversy became known as the "Battle of the Boilers." These facts show how strenuous were the efforts before the date of the Hoxie patent to invent an improved type of marine boiler. In that battle Hoxie was the victor. The simplicity of the invention may cause surprise that the battle was so long a one. But the fact that there was such a battle is conclusive proof that the combination described in the Hoxie patent was not obvious. In Loom Co. v. Higgins, 105 U. S. 580, 26 L. Ed. 1177, Mr. Justice Bradley, in considering the fifth claim of the Webster patent, then in suit, said:

"It is further argued, however, that, supposing the devices to be sufficiently described, they do not show any invention, and that the combination set forth in the fifth claim is a mere aggregation of old devices, already well known, and therefore it is not patentable. This argument would be sound if the combination claimed by Webster was an obvious one for attaining the advantages proposed-one which would occur to any mechanic skilled in the art. But it is plain from the evidence, and from the very fact that it was not sooner adopted and used, that it did not for years occur in this light to even 151 F.-18

the most skillful persons. It may have been under their very eyes, they may almost be said to have stumbled over it; but they certainly failed to see it, to estimate its value, and to bring it into notice."

This oft-quoted language is peculiarly applicable to the invention described and claimed in the Hoxie patent. That it discloses invention seems to me clear. The defendant's boiler unquestionably embodies the combination set forth in the claim of the Hoxie patent. The defendant's expert witness expressly admits it.

The result is that there must be a decree that the defendant is an infringer of the Hoxie patent, but not of the Pratt patent. The complainant is entitled to costs.

In re STARIN.

THE CURRY.

(District Court, E. D. New York. June 1, 1906.)

SHIPPING-INJURY OF PASSENGER-LIABILITY OF VESSEL.

Conflicting evidence considered, and held insufficient to sustain the burden resting upon a passenger to prove, in a proceeding for limitation of liability, that the injury for which she claimed damages, and which resulted from her falling while passing over the gangplank of petitioner's barge, was due to the wet and unfit condition of such gangplank.

In Admiralty. Proceeding for limitation of liability. The petition showed that the petitioner, John H. Starin, was sole owner of the barge Curry, and that an action at law had been commenced against him in a state court by Mrs. Griffin to recover for an injury received by her while a passenger on said barge.

Avery F. Cushman and James D. Dewell, Jr., for petitioner.
Maurice Marks, for claimant.

THOMAS, District Judge. Mrs. Griffin, a passenger, alleges that by reason of its wet condition she slipped and fell on the gangplank of the barge Curry as she was passing over the same to go ashore, whereby she was injured. The Curry was on the port side, and the barge Sumner on the starboard side, of the steamer Starin, and in this conjunction carried Sunday School excursionists from Jersey City to Orchard Beach, L. I., when the accident occurred. The passengers, some 2,500 to 3,000, went aboard and were discharged over the Curry's plank, and several hundred had passed over the plank at Orchard Beach, when Mrs. Griffin, descending the plank, fell. The plank was. about 15 or 16 feet in length, 4 feet wide, and had a handrail on each side and cleats along its floor.

Beside the claimant, there is evidence that one other person slipped or fell on the plank, but was not injured. The claimant herself testified, and called also as witnesses Mr. and Mrs. Joyce, who were relations by marriage of Mrs. Griffin, and who at the time of the accident. were a few feet behind her; Mrs. Kennedy, who said that she herself fell on her back while passing over the plank ahead of Mrs. Griffin;

Mr. Kennedy, who was at the head of the gangplank when the accident happened; and McGowan, one of the committee for the excursion, who was at the dock end of the plank, and, as he says, saw Mrs. Griffin fall. Mr. and Mrs. Kennedy were acquaintances of Mrs. Griffin. These witnesses all testify to the condition of the plank, Mrs. Griffin that it was wet, Mr. Joyce that it was filthy with slush and wet, Mrs. Joyce that it was wet and dirty and slippery, Mr. Kennedy that it was pretty wet and slippery, Mrs. Kennedy that it was wet and slippery, and Mr. McGowan that he had to take care to keep from slipping, that it was as wet as if a hose had played on it, and that it was all wet. Moreover, the claimant seeks to account for this condition. Joyce says that he saw planks lying by the gangway with big cakes of ice on them, and seeks to identify such planks as the gangplank used;, that when he came back from the grove there was sawdust on the plank. Mr. Kennedy says that he also saw sawdust on the plank when he came back. The witnesses for the claimant had such interest in the litigation as came from the immediate relation of Mrs. Griffin to it, from the relationship of Joyce, husband and wife, the acquaintanceship of Mr. and Mrs. Kennedy, and the relation of McGowan to the excursion.

Opposed to these are four witnesses called by the petitioner: Arena, the captain of the Starin; Kiley, the mate of the Starin; Burrows, the captain of the Sumner; and Albertson, the deckhand on the Curry. No one of these is now in the employ of the petitioner. The attempt of the claimant to show that the gangplank was used as a place for storing large cakes of ice, which caused its alleged wet condition, not only fails, but throws suspicion upon the accuracy or good faith of the claimant's evidence in that regard; for the evidence shows that the gangplank, when not in use, was stored about amidships, where there was no apparent opportunity for it to get wet, and far removed from the bar and the location of the ice that was used in connection with the bar. These four men made good witnesses, and it deteriorates nothing from the witnesses for the claimant to say that in honesty of demeanor, manner of giving evidence, and clearness of statement they were quite equal to the witnesses for the claimant. They had such interest as would linger after their former employment, and from the fact that the duty to see that the passengers had proper opportunity to go ashore was observed, the breach of which would reflect on themselves. Perhaps, of all the witnesses sworn in this case, Albertson, in demeanor, clearness of statement, opportunity to see the accident and the condition of the platform, intelligence, and appearance of sincerity, carries the most weight.

The claimant stands in the position of a libelant, with the burden. of proof upon her, and, all in all, the evidence she offers does not preponderate against that offered by the petitioner in such a way as to carry the conviction that the gangplank was in the unfit condition charged. Therefore the claim is disallowed, and the petitioner may limit its liability.