Page:Federal Reporter, 1st Series, Volume 3.djvu/878

 8CH00NEB UABSABET V. 6TKAUEB 0. VTmTISQ. 871 �observing the green light the wheel of the steamer was put to starboard. Shortly afterwards the red light of the schooner was seen, and then immediately both of her lights came into view a short distance oflf — too late to avoid a collision. It did net clearly appear from the respondent's testimony that be- tween the time the green light was first seen and the time the red light came into view the schooner's movements were observed by or known to those on board of the steamer. On May 3, 1878, the cause was argued before the late Judge Cadwalader, who decided that each vessel was in fault, and that the damages should be borne equally. The schooner was held to be in fault for the sole reason that she had not exhibited a lighted toi'ch. 8ee report of the case, 6 Weekly Notes, 304. On June 7, 18^8, the same judge granted a motion for a reargument, under which respondent called and examined several experts, who testified substantially that if the schooner's lights were seen from the steamer the exhi- bition of a lighted torch would not have aided the steamer in avoiding the collision. On September 24, 1880, the cause was reargued before Judge Butler. �J. Warren Coulston, for libellant. Theodore M. Etting, Henry R. Edmunds, and Morton P. Henry, for respondent. �BuTLEB, D. J. This case was heard in May, 1878, by Judge Cadwalader, who then decided that each veseel was in fault, that the damages be equally divided, and the libellant recover full costs. In June following a reargument was or- dered, on the application of libellant, who subsequently took further testimony touching the allegation of fault in his ves- sel. Excepting this testimony, the case is before me as it was presented on the former hearing. The question of fault in the respondent should not, I think, be regarded as open. No new light has been shed upon it, and the action of the court in opening the case had no reference to it. The appli- cation of the libellant was based on the finding against hi7n — that the schooner was in fault ; the àffidavit shows this, and the additional testimony taken relates exclusively to this point. It is proper to say, however, that after a careful examination of the facts I concur fully in the former judg- ����