Page:Federal Reporter, 1st Series, Volume 2.djvu/101

 94 FEDERAL REPORTER. �quently very unsteady, and the wind waa blowing hard in flaws. She was trying to make the mouth of the river, and sailing as near to the wind as she eould. To a vessel directly ahead her lights were liable to present a fluctuating appearance from three causes: First, the flaws in the wind; second, the plunging of so small a boat in a rough sea ; and, third, the occa- sional obscuring of her starbord light by her jib. The testi- mony of Captain Morris, of the Masonic Hall, another oyster vessel, eonfirms this. He says that he, in conipany with the Ella KLrkman, had been anchored for shelter under the highlands of the Magothy river, and when the weather had moderated they got under way together to corne up to Baltimore ; that he was about half a mile ahead of the Ella Kirkman, and the steamer passed him a quarter of a mile to the westward of the seven-foot knoU; that it was blowing hard and the water rough, and he did not tack until abreast of North Point, and that there was no need for the Ella Kirkman to tack; that she was behind him, and he could see her red light, and that he could haye seen both her lights, except her jib shaded her green light. �The evidence altogether is conclusive that the schooner did not change her course. The testimony of Mahon, one of the two lookouts on the bow of the schooner, was much com- mented on by counsel for the steamer. He says : "I saw the steamer's lights directly ahead, sometimes over the port bow, and sometimes over the starboard." This I think is satisfactorily accounted for, partly by the luffing of the schooner, as the wind varied, partly by her unsteady motion in the rough water, and partly by the changes made by the steamer in her own course, as she constantly changed her helm, and it does not prove any change of the schooner's course. It does not appear, therefore, that the schooner did not do ail that was required of her by any nautieal rule. It was her duty to keep her course, and it was the steamer's duty to avoid her, and the serions consequences wbich have resulted are to be visited upon the steamer alone. They serve to show the practical wisdom of the rule which requires ����