make valuable, and bring into general use that which had before, because of its inherent faults of weight and high cost, been of comparatively little value, and this in my judgment was not merely an improvement, but a real invention."

The same thought of attributing to the substitution of pressed metal for cast metal commercial consequences of extreme importance is pressed by plaintiff, who declares that the invention, "entirely eliminated from the horn structure a motor as an independent article of manufacture. The motor became essentially a part of the horn. Where the motor had formerly been an independent article of manufacture, it is now inseparable from the horn structure."

We do not think that the evidence sustains all of the claims suggested by the above quotations, but let it be assumed, for purposes of argument, that whereas, when motor horns first came on the market, they might with some looseness be described as a small power motor, independently constructed, applied to a horn, this patentee has produced and described in his patent, and covered by the claim above quoted, a compact, light, reasonably cheap, and serviceable motor horn. Yet the question necessarily remains: What is there new about this horn that reveals patentable invention over whatever may be the applicable prior art?

We first observe that as a horn it is not new. As soon as the diaphragm is disturbed, the resulting noise is that of a Klaxon, and for the same reasons. Nor as an electriIcal device is it new. The motor is electrically old and functions as before. Mechanically, and confining ourselves not only to electrical motors generally, but to motors used for horn-blowing purposes, there is the novelty of using a cheaper and lighter form of pressed metal, instead of a similarly shaped cast form; but electrically and mechanically, when the various parts are assembled, the pressed metal form functions exactly as did that which was cast.

As above indicated, we find that the evidence does not sustain the somewhat extravagant claims of advantage from this substitution. But, even assuming what is claimed for the patentee's effort, this case raises no other query than this: Does invention reside in the substitution of an allied material for one that was old in the art? It has often been said that it is possible to find invention in the substitution of one material for another. Crawford v. Wilson (C. C. A.) 297 F. 617, citing Columbia Co. v. Halper, 220 F. 912, 136 C. C. A. 478. This is

a part of a larger truth, elaborated a generation ago in Potts v. Creager, 155 U. S. 597, 15 S. Ct. 194, 39 L. Ed. 275, viz.: That a new use may involve an exercise of the inventive qualities. But, added the court, "much, however must still depend upon the nature of the changes required to adapt the device to its new use." Page 608 (15 S. Ct. 199). So the question may be put thus: What exercise of the inventive faculty was required to adapt pressed metal for a use to which cast metal had long been devoted! It is strongly urged for plaintiff that the evidence herein shows so many of the indicia of invention dwelt upon by us in Kurtz v. Belle, etc., Co., 280 F. 277, that, remembering the proposition that invention is a question of fact, to be determined by the evidence (Kimball v. Noesting [C. C. A.] 262 F. 148), it was properly found below that invention-i.e., an exercise of the inventive faculty-was displayed by Mr. Sparks. While, as above noted, we cannot go all the way with the plaintiff as to the value or weight of the evidence adduced, we do assume for purposes of decision that commercial novelty, economy, neatness, and simplicity are all displayed to a commendable extent in the patentee's motor horn, upon which the claim of the patent in suit plainly reads.

But, with this assumption made, the legal question is not changed: Did it require an exercise of the inventive faculty, or (same thing) was it patentable invention, to substitute pressed metal for cast metal in the motor, which the prior art had long used to produce a noise in a horn? Approaching this question of fact, and fully recognizing that many excellences long used as indicia of invention are here presented in favor of the patent, it is just as true that general rules are always subject to particular findings. It is clear that by a practically unbroken line of authorities the courts of this circuit, sitting as triers of the fact of invention, have always refused to yield the inventors' palm to a mere substitution of material or to a new use except under circumstances of rarity.

To cite but a few, the substitution of one abrading substance for another is not inven

tion of cement for other filling in the construction of dams. Ambursen v. Hydraulic Co., 211 F. 982, 128 C. C. A. 480. The same ruling was made in respect of the introduction into grand pianos of a pneumatic mechanism long used on uprights. Æolian v. Wanamaker, 234 F. 90, 148 C. C. A. 106.

The line of rulings now sufficiently adverted to is strengthened in its application to the present case by our finding, as we do, that in motors used and sold, mostly to actuate so-called electrical toys, a U-shaped sheet metal frame had been shown and commercially used under Grant patent 931,416. We are therefore of opinion that the patent at bar must fail for lack of patentable invention, in that nothing patentably new is shown therein, except the substitution of one species of manufactured metal for another. The foregoing renders it unnecessary to consider the very interesting argument addressed to us by appellant in respect of the effect of the copendency and interferences of the patent at bar with the McConnell patent above referred to.

Let the decree appealed from be modified, so as to deny patentable invention to both the claims in suit, and the bill dismissed. Defendant, having now fully prevailed below, will recover the costs of the District Court and of this court.

A number of barges were moored to a

stakeboat, the first tier of four being tied to the

stakeboat, and the others to them. The stakeDoat dragged her anchor for a short distance in a gale, when it again held. The lines of three of the barges tied to it rendered, because no hitch was taken around their bitts, and the

strain thus placed on the line of the fourth barge caused it to part, and the flotilla drifted and came into collision with anchored vessels. Held, that the dragging of the anchor of the stakeboat was not the proximate cause of the collision, but tae rendering of the lines of the three barges, due to their negligent tieing, and that they were alone liable.

3. Collision 70-Master of stakeboat not under duty to look after fastenings of boats moored to it.

There is no duty on the master of a stakeboat to look after the fastenings of barges. moored to it, but that duty rests on the barges.

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

Suit in admiralty by the Acktieselskabet Bolgen, owner of the bark Bolgen, against the barge Red Eagle and James C. Davis, Director General of Railroads, to recover for damage to the Bolgen. The Director General petitioned in the barges B. F. Guinan, P. B. No. 7, Michael Francis, and Natco No. 17, and the claimant of the Natco No. 17 brought in the National Fireproofing Company under the fifty-sixth rule in admiralty. Also, suit in admiralty by McWilliams Bros., Inc., owner of the barge Red Eagle, against the Director General of Railroads, who petitioned in the barges B. F. Guinan, P. B. No. 7, Michael Francis, and Natco No. 17, and the claimant of the Natco No. 17 petitioned in the National Fireproofing Company. Also suit by Margaret Tague and Edward G. Murray Lighterage & Transportation Company, owners of the boats B. F. Guinan and Mame A. Murray, respectively, and by Sayre & Fisher Company, owner of the barge S. & F. No. 17, against the Director General of Railroads, who in turn petitioned in the same parties and the claimant of the Natco No. 17. Decree for certain of the libelants. Certain of the claimants appeal. Modified.

Leo J. Curren, of New York City, for appellants.

Burlingham, Veeder, Masten & Feary, of New York City (Chauncey I. Clark and Thomas H. Middleton, both of New York City, of counsel), for appellee Director General of Railroads.

Paul Speer and Macklin, Brown & Van Wyck, all of New York City, for appellee Ft. Reading R. Co.

Before ROGERS, HOUGH and MANTON, Circuit Judges.

MANTON, Circuit Judge (after stating the facts as above). The five suits above referred to were tried together and will be here considered in one opinion. On the evening of November 19, 1919, the stakeboat Ox was anchored off Liberty Island

and was the mooring boat for 25 light coal barges. She was held at anchorage by a single anchor, and was employed by the Pennsylvania Railroad Company in hanging up tows of boats bound either to or from the coal port of South Amboy, N. J. This flotilla of coal barges was made up in , a number of tiers, the first three of which had four boats each. Each of the first four boats had one line out to the Ox in a customary manner. The B. F. Guinan and the Michael Francis were the outside boats of that tier, the former on the starboard and the latter on the port side, and the two inside boats were the P. B. No. 7 and the Natco No. 17; the former next to the Guinan, and the latter next to the Michael Francis. The Guinan was the first to tie up to the stakeboat, which she did early in the day. The Natco tied up at about 4 p. m., the P. B. No. 7 and the Michael Francis at about 5:30 p. m., and the other boats were added to the flotilla from time to time during the day.

At about 10:30 p. m., the Wyomissing, which at that time was allocated to the Pennsylvania Railroad, hung up a tow of seven or eight additional boats at the stern of the flotilla, and shortly thereafter it was observed that the Ox was dragging anchor. Subsequently the lines of the P. B. No. 7, the Natco No. 17, and the B. F. Guinan rendered off the bitts of the barges, and the line of the Michael Francis held. After dragging some distance, the anchor of the stakeboat took hold on the bottom, and when the stakeboat brought up, shortly before midnight, the strain caused the line of the Michael Francis to part, and, under the influence of an ebb tide and a heavy northwest wind, the flotilla drifted down the bay, until it brought up across the bows of two anchored vessels, one of which was the bark Bolgen. Afterward the flotilla was taken by a number of tugs to Port Johnson, N. J. Northwest gales had prevailed throughout the day, though, shortly before the occurrence, the wind had abated somewhat. Northwest storm signals were displayed at 8:15 p. m. the day before, November 18th, and were continued until the night of the disaster. There was a strong ebb tide, and during the gale the wind reached a velocity in excess of 44 miles an hour. On November 19th the wind's velocity exceeded 50 miles an hour, but it moderated at about 10 p. m. It appears that the lines of the first four barges were fastened sufficiently to stand this wind velocity. At the time of the drifting there were 24 barges tailing astern

of the Ox. It was the constant strain on the Michael Francis and the fetching up of the stakeboat when the anchor held that caused the line of the Michael Francis to part and the tow to go adrift.

[1] The court below held that the cause of the breaking adrift and consequent damage was due to the rendering of the lines of three of the hawser boats and to the Director General as owner of the Ox, and apportioned the damages one-quarter each against them in favor of the libelants, other than the Guinan. As between the Director General, he held the latter could not recover for the failure to examine the hawser leading from her to the stakeboat. As between the Guinan and the two other boats, the rule of one-half damages was applied, and he decreed that the Guinan's half damages should be borne by the Natco No. 17, P. B. No. 7, and the Director General. The theory upon which the liability was imposed upon the Director General seems to be that it was the duty of the captain to look at and be responsible for the fastening of the hawsers on the barges of the first tier. We think that the proximate cause of the drifting was the rendering of the lines. The lines on the bow bitts of the three barges rendered. The captain of the P. B. No. 7 admitted that he had not taken a hitch around the barge's bitts, but merely took some turns, and it appears that this was true of the Natco No. 17 and the B. F. Guinan. This failure made the three barges liable. McWilliams v. Philadelphia & Reading Railroad Co., 203 F. 859, 122 C. C. A. 84.

We have held that a tug which towed a scow and tied her astern of another scow, with directions to the scow captain to run out additional lines to the breakwater on each side of the channel, was not liable for subsequent damage to the scow, caused by the failure of her master to put out lines. The Milton, 235 F. 287, 149 C. C. A. 3. And we have said that "a sound hawser is of no value, if it is carelessly made fast." The Washington Irving, 250 F. 797, 163 C. C. A. 129. While it is true that the barges withstood the wind of the 18th and 19th, from which it is argued that the boats were properly fastened, still there is sufficient in the admission and proofs that there was no hitch around the bitts which made the lines to the Ox fast to place the fault as that of negligent tieing. In McWilliams v. Davis (C. C. A.) 285 F. 312, and Pennsylvania Railroad Co. v. James McWilliams Towing Line (C. C. A.) 277 F. 798, the