Page:Federal Reporter, 1st Series, Volume 4.djvu/757

 BWEDISH BAEK ADOLPH, 743 �ing that the collision that ensued was not caused in whole or in part by this act of negligence. If, hôwever, it is shown that the Adolph did exactly what she could and should have done if the mate had kept the other vessel under his constant observation, then this fault, though a gross one, cannot make her chargeable for the collision. The mate gave the order to port. He ported as much as it was possible to do without coming np in the wind, which, under the circumstances, I think he was not bound to do. There was nothing else that he could reasonably be called upon to do, after receiving the lookout's report, to prevent the collision. It is suggested that if he had been watching the other vessel when the lookout called ont "Keep her ofE," he could have starboarded, and so avoided the collision. I think, however, upon the evidence, the time was so short after the Fernande unexpectedly and improperly luffed that the Adolph was not chargeable with fault in not making this attempt to avert the consequences of the error of the Fernande. �It is also suggested that the lookout did not see the Fer- nande as soon as he should have done. The lookout testified that the red light appeared suddenly not very far ofif, flushing up at once. This might be the resuit either of his not having kept a vigilant watoh or of the red light being then first turned towards him. The light of the Fernande could not be expeoted to be seen as far off as that of the Adolph. The Adolph was mueh higher in the water than the Fernande. But, before it can be imputed as a fault to the lookout that he did not see the light sooner, it must be established by competent and suffi- cient proof either that the red light was visible to him before he saw it, or, if the red light was hidden, that the Fernande had a green light burning, which he could bave seen. The only proof of either of these faets is the unsupported testi- mony of the master of the Fernande. His statement as to his standing steadily on his course for several minutes before the collision is so seriously shaken by the facts which I have been compelled to find against his testimony, that this is not suffi- cient evidence to sustain this burden of proof. The lookout's ����