Page:Federal Reporter, 1st Series, Volume 4.djvu/257

 BIEBOEAMTS STEAH-SHIP CO. V. SCHOONEB 8. 0. TBYON. 243 �it is not to be believed that they would have permitted him to remain on duty if such had been his condition. �The whole theory of the respondents' case is, not that the steamer failed to execute through bad steering some maneuver •which her officers attempted to make, but that she failed to see the lights of the schooner at ail until in the act of crossing her bows. This would have been a fault with which the wheelsman would have had nothing to do. �Evidence was also introduced for the purpose of discredit- ing one of the steamer's lookouts by showing that he was in the forecastle at the -time he stated he was on duty and observed the change in the schooner 's course; but this is the one of the lookouts who, it was admitted, was liable to be called off forother duties, and was not the one on whom rested the responsibility of uninterrupted attention, and, in the consideration of the case, I have excluded his evidence. Even if it be true that he attempted to swear to facts which he did not observe, I do not think it has been shown that the other witnesses for the steamer were aware of it. It was argued that the steamer's lookout was insufficient because they never saw or reported the lights of the Patterson & Bash. This, I think, is fully accounted for by the fact that the Patterson & Bash being in a line with the schooner and astern of her, her lights would have been hid by the schooner's sails, which were ail boomed out. AU the steamer's witnessea Bpeak of a vessel which passed to the eastward just after the collision, when they were in the small boats, and which they tried to bail, and it seems probable this was the Patterson & Bash. �Although this case is one of great conflict of testimony, and in which I have had unusual difficulty, the conclusion to which I have finally arrived is that the preponderance of evidence and probabUity is in favor of the libellants, and that the decree mnst be in their favor. ����