Page:Federal Reporter, 1st Series, Volume 3.djvu/598

 OOCKS V. STEAMER TONAWANDA. ���5el ���The first four of these I adjudge satîsfactorily sustained by the weight of the evidence. That the steamer was in fault, after the approach of the tug and tow was noticed by the mate and captain of the Tonawanda, is not shown. The fifth and sixth charges, therefore, I adjudge not sustained. The evidence bearing upon the question, how light or how dark it was dur- ing the five or ten minutes preceding the collision, was very voluminoua, very contradictory, and utterly irreconcilable. It in my judgment, however, warrants the conclusion that, at the moment of leavîng Fox Point wharf, the Tonawanda's lookout, had such an officer been at his post, could have seen the tug and schooner, as the persons on board the tug and schooner saw the Tonawanda. That the collision was in any very appreciable degree caused or affected by the absence of light, though the sun had set, I find not to be sustained by the weight of evidence. �2. The charges of culpable negligence against the steam- tug, urged by the libellants, and by the counsel for the Ton- awanda, were in effect these, viz. : First, that as the Tona- wanda was seen by the captains of the tug and schooner under way near Fox Point, at the minute the tug started out, or before, the tug, towing a schooner stern ûrst, ahould have delayed starting out until the Tonawanda had paased down the channel; second, the tug and tow, having started out, should bave ported her helm and passed up on the eastern side of the channel, leaving the western side open to the Tonawanda, on the course she was seen to be coming down ; third, granting that whistles were blown by her, as she claims, that when she failed to receive any response to her signais she should have either ported her helm, or slowed or stopped her engine, and given way to the steamer; and, fourth, that as the sun had set the tug and tow each should have had lights, as prescribed by statute, and a bow watehman each, the admitted fact being that neither tow nor tug had either lights or watehman. �As regards the omission by tug and tow to exhibit lights, I bave only to say that I fail to find reason, on the evidence, for adjudging that their'short-coming in this respect contrib- ����