Page:Federal Reporter, 1st Series, Volume 5.djvu/102

 90 FEDERAL REPORTER. �which struck the steam-sliip just before the collision, and obscured the bark at the critical moment when she approached the steam-ship, and that the faîlure to discover a vessel, pro- duced by such a state of the atmosphere, is one no skill or watchfalness on the part of the lookouts and officers can guard against;" and, second, "that the bark changed her course previous to the collision, and the resuit is attributable to such change." �The fîrst branch of this defence presents the question whether proper vigilance was exercised, and the failure to see the bark inevitable. And this involves a consideration of the state of the weather and atmosphere, the character of the steam-ship's lookout, the testimony of witnesses who de- scribe the distance at whiçh objects could be seen at th« time, and the presence or absence of lights on the bark. �As respects the condition of the weather and atmosphere, there is no material disagreeinent in the testimony. The libel says "there was a drizzling rain, with a fresh breeze from between south-west and west-south-west," and the answer says, "the breeze and character of the night were such as stated in the libel, except that there was some mist, with pass- ing showers." The moon was up, but hidden by clouds. There was little sea, though the swell was heavy. The atmos- phere was somewhat thick, and the night dark. There seems to bave been no fog. �As respects the steam-ship's lookout, more might be said than I deem it necessary to say. That a lookout should have beon maiiitained from the turtle-back, under ordinary cir-, cmTi:itaneo3, is plain. The reason assigned for omitting it and relying upou a sight from the bridge, 180 feet back, is the alleged occasional plunging of the bows into the sea, and the obstruction presented by spray at that point. That a sailor could have stood there with safety is admitted. It is asserted, however, that he could have seen nothing from that place. The night was such as to call for special vigi- lance. Massin, a seaman, was placed on the atarboard side of the bridge ; Wismer, the second oiïicer, was stationed on the opposite side, and Ledder, the fourth officer, at the aîter- ����