Page:Federal Reporter, 1st Series, Volume 2.djvu/829

822 nearer, as they worked a little further to the eastward, still being aground, but rising and moving with the rise and fall of the sea. They then discovered that this object was a vessel, and that if they kept on as they were going they were likely to come into collision with it, and they let go their starboard anchor. As the vessel was brought up by her anchor she gradually approached the Robert Smith, and her bowsprit and head rigging came foul of the fore rigging of the Robert Smith, and finally she swung along-side of the Robert Smith, and was got clear of her by paying out chain, so that she drifted astern of her. But in going by her stern the injury was done which is the subject of this action, and from the effect of which it is claimed that the Robert Smith leaked so badly that she was obliged to slip her cable and go ashore, where she became a total wreck.

The libel avers that immediately after the Robert Smith anchored a signal light was hung in the fore rigging, on the starboard side, and a proper watch placed on deck, and "that from the time said signal light was lighted and watch set to, and until the collision, the said signal light was in its proper place and burning brightly." The answer denies that the Robert Smith had any anchor light, and charges the absence of the light on her part as the cause of the collision. The only question fairly arising on the pleadings and the evidence is whether the Robert Smith had an anchor light set and burning as the Albert Mason came into the harbor and approached her. Though it was a dark and stormy night, lights of vessels could be seen at a considerable distance, and if the Robert Smith had her light set it was inexcusable in the Albert Mason to approach her so closely as she did before rounding to, to anchor.

The point made that the Robert Smith was in fault in not hoisting her jib and paying off to the eastward, so as to aid the Albert Mason in her efforts to avoid the collision, is not, I think, open under the pleadings. There can be no question that it was the duty of the Robert Smith to have a light. She was not fairly out of the channel or that part of the harbor