Page:Federal Reporter, 1st Series, Volume 2.djvu/810

Rh taken supposition, and is not, I think, sufficiently convincing to overcome the positive testimony of witnesses who were on the deck of the Mason at the time of the collision. It is said by the master and mate and one of the lookouts of the Calkins, that the booms of the Mason were on the port side. But their testimony does not convince me that such was the position of the booms before the Mason starboarded her helm, just before the collision, nor until after the collision occurred, and the mate says that he saw the booms of the Mason on the port side after the collision, but did not see them before.

It is urged in the brief of the respondents' counsel that the position of the scar on the mast of the Mason, produced by the blow from the bowsprit and jib-boom of the Calkins, is convincing evidence that the Mason was not on her course. Testimony on the part of the Calkins tends to show that on examination the star was found to be at an angle of 45 degrees. The argument is that the sides of the vessel would be the base; the fracture at the rail to the mast would be the hypothenuse, running from stern forward; and the mast to the rail, at right angles with the longitude of the vessel's decks, would be the perpendicular. Then place the Calkins on her course at the moment of collision, N. E. by E. ½ E., and lay her jib-boom and bowsprit on the scar, pointing N. E. by E. ½ E., and the course of the Mason, at the moment of collision, must be E. by S. The argument is very ingenious, but it wholly ignores the posibility that the shape and position of the scar on the mast may have been produced by a change in the Mason's course and Calkins' line of approach when a collision was impending. And it was held in the case of The Fairbanks, 9 Wall. 420, that direct and positive oral testimony going to show that a vessel kept properly on her course, at least until a collision became inevitable, will not be controlled by the fact that the shape of the wound tended to show that the vessel could not have been, at the instant of collision, on such course, but must have changed it; it being possible enough that the shape of the wound was produced by a change in the vessel's course, made in the last moment, to avoid a collision.