Page:Federal Reporter, 1st Series, Volume 2.djvu/830

 MIDDLESEX QUASBÏ CO. ». BOHOONER ALBERT MA.80N. 8.23 �where other vessels were likely to corne, and the burden is on her to show by a f air preponderance of evidence that she had a light. Her crew consisted of four men, ail told, "who swear positively to the light being set after they came to anchor, and to its continuing to burn brightly afterwards up to the time of the collision. Three of them say it was taken down after the Albert Mason had let go her anchor. They do not quite agree as to the time when it wastaken down, but the three swear it was not taken down till after the bowsprit of the Albert Mason came into contact- with the fore riggjng of the Eobert Smith. On the other hand, five witnesses are called from the Albert Mason whd swear positively that after this object was discovered to leeward they looked for a light, and that she had no light visible to them ; yet, if it was hung in the starboard fore rigging, as testified to by those on board the Eobert Smith, it must have been plainly visible to ail those pn the Albert Mason, and at a distance of from 100 to 300 feet, which was heiug constantly diminished until the two vessels came in contact. �It is impossible to reconcile the testimony upon any theory of mistake. Nor is the theory of inattention or failure of those on board the Albert Mason to observe a light, which they might have seeu if they had looked, tenable in this case. The vessel lay in this close proximity a considerable time, and the light which they looked for and did not see, if it was there, was very near to them, and on the side of the vessel towards them. While there are some serious discrepancies between the testimony of those on the Eobert Smith and the other and credible proofs in the case as to the movements of the Albert Mason and the sail she carried, and some incon- sistencies in their testimony, and between it and the aver- ments of the libel, these alone would not be sufficient to im- peach or discredit the witnesses of the libellant. Nor, on the other hand, are the witnesses for the claimants in any way discredited except by this flat contradiction in respect to the light. In fact, the witnesses on both aides appear to be alike 'Credible, and I have not been able, after the mosi carefol ����