the Pemaquid struck her, the Morse was heading about E. 1⁄2 N., and "she was moving back;" there was abundance of room for the Pemaquid to pass⚫ without collision when she was first sighted, if she had been properly steered, but she made a "quick turn towards us," and the collision resulted.

The testimony from the engine room is to the effect that the orders to reverse were received and promptly executed, and that the steamer was going full speed astern at the time of the collision. It is not necessary to refer in detail to the other corroborating evidence.

On the other hand, the captain of the Pemaquid, and three others who were aboard the Pemaquid, testify that the Morse was going ahead at the time of the collision. Three of these witnesses did not so testify when they were before the local inspectors. A passenger on the Pemaquid, who thought the Morse was going ahead, bases his testimony upon the fact that he saw white water coming up on the Morse's bow when she first came out of the fog; he feels sure that at that time the Morse was coming ahead and throwing the water up; and there is some other testimony to this effect. This sort of evidence is not of great value, in view of the fact that the Morse was a side-wheel steamer, and that the waves, rolled up in front of her paddle wheels, might readily be taken for a wave upon her bow.

The learned proctors for the claimant base their contention that the Morse was going ahead at the time of the collision, largely upon statements, alleged to be inconsistent, made by the pilot and other witnesses on behalf of the Morse in cross-examination. They also urge that the testimony of the lookout Eaton is important, that when he saw the Morse "she seemed to be moving quite quickly towards us." I am not able to give much weight to the testimony of the lookout, who was a man entirely without experience, and whose whole statements are vague and uncertain. Great stress is laid by the claimant upon the testimony of the pilot, Robinson, who says that, in his opinion, the Morse must have been going ahead at the time the vessels came in collision. His testimony from what he saw is not convincing; his theory that the Pemaquid could not have struck the Morse at the angle she did, if the Morse had not been going ahead, is not, I think, sustained by the testimony. The substance of the claimant's contention is that the Pemaquid had been proceeding under one bell for several minutes prior to the time the Morse had been sighted, at which time her engines were reversed at full speed; and that, while this was not in strict compliance with the pilot rules, it nevertheless was not so contributory a factor to the collision as the movements of the Morse; that the Morse reached the narrow channel at Field Ledge Buoy, in its most dangerous part, while under full speed, 14 knots; and that she had been slowed, stopped, and reversed practically at the same moment. From a careful examination of the testimony on this point, I cannot sustain the position of the claimant. The evidence, taken as a whole, seems to me to sustain the libelant's contention that the Morse had stopped before she saw the Pemaquid, and that she was going astern at the time of the collision. The evidence upon this issue is gathered from 14 witnesses who were aboard the steamer. Their testimony is convincing, and is not materially shaken, in my opinion, by the rigid crossexamination by the learned proctors for the claimant. I cannot escape

the conclusion that the Morse had stopped and reversed before she saw 'the Pemaquid; that her engines were then running full speed astern; that her hull was moving astern; that she gave to the Pemaquid more than her share of the distance separating the vessels, and enlarged the Pemaquid's space for proceeding down the channel; and that there was room enough in the channel for the Pemaquid to pass, if she had kept upon the starboard side of the channel. Some of the witnesses in behalf of the Morse testify that, when the approaching vessel was first seen, she appeared to suddenly swing toward the Morse instead of away from the Morse. Whether this movement is accounted for by the captain of the Pemaquid, in his confusion, putting the wheel the wrong way, or the Pemaquid failed to answer to her wheel, when reversed, is not made clear and it is not necessary to decide. It is made clear by the proofs that those in control of the Pemaquid were seeking to avoid the starboard side of the channel, fearing that they should lose sight of the buoy at Field Ledge.

[3] Having determined from the evidence that the Morse had stopped and reversed, and was going astern at the time of the collision, it is important to consider at this point, of what, if any, fault the Morse was guilty in reference to speed. She maintained her full speed from North Haven to Mark Island. She could not, however, have contributed to the collision by her speed before she reached Mark Island. If, when she met the approaching vessel, she had already stopped her speed, and was going backward, she ought not to be held in fault for whatever her previous speed may have been. In the Ludvig Holberg, 157 U. S. 60, 67, 15 Sup. Ct. 477, 39 L. Ed. 620, in speaking for the Supreme Court, Mr. Justice Brown held that if a steamer had run at high speed an hour before, and was running dead slow at the time when she first heard the whistle of the approaching steamer, fault could not be imputed to her for her previous speed. In the Lepanto, 21 Fed. 651, 659, Judge Addison Brown held that, where a whistle is distant, and no danger can be incurred by delay, immediate stopping is not necessary; that it is always safe to stop and reverse; and, if a steamer does not stop and reverse when it is shown by events that collision might have been avoided, she must establish clear justification for her course. New York and Liverpool, etc., Co. v. Rumball, 21 How. 372, 384, 16 L. Ed. 144; The Khedive, etc., 5 App. Cas. 876, 890, 908.

It cannot be said that the Morse was at fault because if she had stopped, or had reduced her speed at Mark Island, she would not have reached the point where the two steamers intersected. In The Umbria, 166 U. S. 404, 422, 17 Sup. Ct. 610, 41 L. Ed. 1053, Mr. Justice Brown points out the fallacy of this argument, and shows it is equally true that if a vessel had been going at greater speed she would have passed the point of intersection. Clearly, this test cannot be applied on the question of speed. The propriety of seamanship cannot be judged by the chance that two vessels may or may not reach a point of intersection at the same time, but rather by the question whether their speed can be stopped before they arrive at the point where their courses intersect. In the case before me, I have found that the Morse was not only stopped before arrival at the point of intersection, but that she was actually going astern.

[4] An important question is raised in reference to the duty of the Morse on her arrival at the entrance of the Thoroughfare at Mark Island. She there heard the whistle of the Pemaquid. Her officers decided that the whistle showed the approaching steamer to be in the Thoroughfare, about at a point not far distant to the westward of Stonington, and, on this supposition, they assumed that they had time to reach Field Ledge Buoy before the Pemaquid could arrive there. It is evident that at this point the Morse was in the position of a "steam vessel hearing, apparently forward of her beam, the fog signal of a vessel." The contention of the libelant is that the whistle of the vessel, apparently forward of her beam, was the whistle of a vessel the position of which was then and there "ascertained" by those on board the Morse, and that therefore the steamer was justified in proceeding, as she did, to Field Ledge Buoy. Article 16 is predicated upon a condition of fog, upon a condition in which it is impossible to see at any considerable distance. The rule cannot mean, then, that it is necessary for those upon a steamer to see an approaching steamer in order to "ascertain" her position. Such ascertainment must be by other means than by sight. When the whistle of the Pemaquid was first heard, the officers of the Morse recognized the whistle, and judged that it was approximately one and one-half or two miles distant, in Deer Island Thoroughfare, and "this side" of Stonington. The proofs show that the officers of the Morse were correct in their conclusion as to the Pemaquid's location. In fixing that location, they appear to have been governed by their familiarity with the locality, their knowledge of the approaching steamer, of her landing places, and habits of navigation. Some of the witnesses have assumed that, within the meaning of the rule, the bringing of an approaching vessel in sight is necessary to "ascertaining" her position. I cannot think so. Under all the circumstances shown by the proofs, and under a fair interpretation of the rule, I think it must be held that those in charge of the Morse had "ascertained" the position of the Pemaquid. Before proceeding upon their course, they estimated her situation with sufficient accuracy to conform their own navigation to it. They knew, too, that she was required to come down on the side of the channel opposite to that which the Morse was using; and they had a right to assume that she would do this. What, then, was the duty of the Morse? She had 60 or 70 passengers aboard. She was in an open seaway, near Mark Island, in a thick fog. The island could not be seen at a distance of more than three or four hundred feet; the steamer had nothing by which to fix her own location, or from which to take her departure, except Mark Island. To remain there and await the Pemaquid might mean "immediate danger" of losing her reckoning and getting upon the ledges; her officers considered it was the part of prudence to proceed to Field Ledge Buoy. I think they ought not to be held at fault for this deci

sion.

As bearing on the duty of the Morse when she arrived at Mark Island, the learned proctors for the claimant bring to my attention the case of the Selja Lie v. San Francisco & Portland Steamship Co., 243 U. S. 291, 298, 37 Sup. Ct. 270, 61 L. Ed. 726. The collision between the steamers Selja and Beaver occurred on the high seas near Point

Reyes, on the California Coast, a few miles off the entrance to San Francisco Harbor. The facts in that case, as found by the court, were substantially these: At 3 o'clock the Selja was proceeding at half speed of six knots; at 3:05 this was reduced to three knots; at 3:10 she stopped her engines; at 3:14 she was still making headway; at 3:15 she executed full speed astern; the collision occurred at 3:16. Holding that the duty to stop her engines was imperative when she heard the signal from the other steamer forward of her beam, considering the well-known difficulty exactly to ascertain the position, course, and distance of a vessel in a fog, speaking for the court, Mr. Justice Clarke says:

"It is of no avail for this master to say that at the instant of the accident he thinks the momentum of his ship had been overcome, and that she was commencing to move backward in response to the full speed astern' order, which had been given during the instant that had elapsed between the appearance of the Beaver through the fog and the coming of the ships together, for the evil had been done and the collision rendered inevitable."

In the case of the Selja the vessels were in the open sea; there were no such circumstances and conditions as those which were presented to the master of the steamer Morse, in maintaining his speed from Mark Island to Field Ledge Buoy. The master of the Selja was mistaken as to the course and distance of the oncoming vessel; in the open sea he had few reliable data from which to fix her location. On the other hand, the master of the Morse had an intimate and daily knowledge of the locality; he knew the landing places which the Pemaquid would make; he decided correctly as to the position and distance of the Pemaquid from the moment when he first heard her whistle. In the case of the Selja, it was not until her master heard the whistle of the Beaver three times that he recognized it as the whistle of the approaching steamer, and that he began to take definite observation of it. But the officers of the Morse were expecting the Pemaquid; they recognized the whistle as her whistle, and at once made their navigation conform to their ascertainment of her location. They estimated correctly in deciding that they could reach a place of safety for the Morse, and could give the Pemaquid an opportunity to pass safely if she were prudently navigated. They could not have reached such a conclusion in the open sea in a fog, but they could readily reach it in Deer Island Thoroughfare. It is important to note in this connection, that the error of the Pemaquid when she left Allen's Bar did not arise from her improper ascertainment of the Morse's position, but from her own navigation, after she had located the Morse. I think the case of the Selja is not in point, and cannot influence the determination of this case.

Among other charges of fault, it is alleged that the Morse changed her course in such a way that she blocked the channel; and it is in evidence that the local inspectors found that, at the time of the collision, the Morse was backing partly across the channel and across the course of the other steamer. I can find no testimony, now before the court, which warrants such a conclusion.

The other charges of fault made by the Pemaquid against the Morse are not sustained by the proofs.

The court finds that the Morse was not at fault, and that the Pemaquid was solely at fault, for the collision. A decree may be presented accordingly. The libelant recovers costs.

Fritz H. Jordan, Esq., is appointed assessor. Upon the coming in of his report, the court will pass upon such further questions as may arise.

UNITED STATES v. DISCHER et al. (District Court, S. D. New York.

January 22, 1919.)

1. MONOPOLIES 24(2)-DISSOLUTION OF COMBINATION-MODIFICATION OF DE

CREE.

Evidence held insufficient to warrant modification of an injunction decree in a suit to dissolve a combination of manufacturers as illegal under the Sherman Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830). 2. MONOPOLIES

CREE.

24(2)-DISSOLUTION-INJUNCTION-MODIFICATION OF DE

Where a decree has been granted by consent, in effect enjoining the defendants, who were engaged in the combination, from granting joint licenses of patents covering parts of automobile bumpers, the injunction will not be modified upon affidavits that the patents are not competitive, but that one dominates the other, in the absence of the most convincing proof.

In Equity. Suit by the United States against Grant F. Discher and others. On motion by certain defendants for modification of decree. Denied.

Francis G. Caffey, U. S. Atty., of New York City (Henry A. Guiler, of New York City, Ryland W. Joyce, of Washington, D. C., and Rush H. Williamson, Sp. Assts. U. S. Atty., of New York City, of counsel), for the United States.

E. H. Bottum, of Milwaukee, Wis., and Phillip W. Haberman and Edwin P. Grosvenor, both of New York City, for defendants.

AUGUSTUS N. HAND, District Judge. The defendants Grant F. Discher and Central Brass & Fixture Company petition for an amendment of the decree which will allow them, together with the Gemco Manufacturing Company, jointly to grant licenses to manufacture and sell automobile bumpers embodying patent No. 974,212 issued to Turner and Crabill, and patent No. 1,052,224, issued to Discher. The royalties are fixed in the proposed license for structures embodying either. or both of the patents. The decree granted by consent in a suit to dissolve an association to which these defendants, among other persons, belonged, as illegal under the Sherman Anti-Trust Act (Act July 2, 1890, c. 647, 26 Stat. 209 [Comp. St. §§ 8820-8823, 8827-8830]), enjoined them from continuing a license under those patents and provided as follows:

"No defendant who was the owner of a patent or patents involved in this cause prior to January 31, 1917, so long as he acts separately and independently is enjoined by this decree from issuing to one or more of the defendants For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes