Page:Federal Reporter, 1st Series, Volume 5.djvu/101

 JENSEN V. SrEAM-SHIP BBLGENLAND, 89 �course, the steamer's light was brought a little oa her port bow; that owing to the courses being intersecting the port light of the steamer was not visible, and her starboard light was masked by her fore try-sail, which at the same time screened the bark from the steamer's lookout. The theory of the respondents was that the two vessels -were sailing on opposite but parallel courses ; that the steamer was approach- ing a low bank of haze or mist, in or towards which the bark was sailing, and which prevented the side lights of either ves- sel from being seen from the other, although the mast head- light, being more elevated, was visible; that the apparent change of position of the mast head-light of the steamer from starboard to port, was caused by the man at the wheel of the bark allowing the vessel to lufif up ; that the mate, supposing -the change of position of the light to be due to a change in the steamer's course, altered the course of the bark and thus brought her across the bow of the steamer and caused the collision. �Henry Flanders and J. Langdon Word, for libellant. �Henry R. Edmunds and Morton P. Henry, for respondent. �Butler, D. J. On the fourth of August, 1879, between the hours of 1 and 2 o'clock in the morning, the bark Luna, laden with sugar, under way from Porto Eico to Queens- town, in latitude 49 degrees and 33 minutes, and longitude 21 degrees and 43 minutes, on a course, by the compass, S. E. by E. ^ E., with a fresh breeze from between S. W. and W., and W. S. W., met the stoam-ship Belgenland, traversing the same course, by the compass, in an opposite direction, and was run down by the latter vessel and sunk. �Was the steam-ship in fault ? It was her duty to keep out of the bark's way. About this there ia no controversy, nor, in rny judgment, room for controversy, The presumption is, therefore, against her; the burden of proof is hers. She must show a sufi&cient excuse for the failure to keep off, or must answer for the loss. �The excuse set up and relied upon is twofold : First, (in the language of the answer,) "that the bark was coming down before the wind, enveloped in a shower of rain and mist, ����