Page:Federal Reporter, 1st Series, Volume 5.djvu/105

 JBNSEN V. 8TBAM-SHIP BELGENLAND. 93 �says he looked at them between 12 and 1 o'clock, and saw them burning brightly. The starboard light waa seen burn- ing at the moment of the collision. . The other was not then in position to be seen ; but the presumption (from the facts just stated) olearly is that it also was still burning. No im- portance can be attributed to the libel's silence on this sub- jeet. The failure of the answer, when accounting for the accident, to suggest that the lights were not burning ig more signifieant. The conclusion is, therefore, unavoidable, that the bark could have been seen earlier than she was. �The respondent's argument, based on the inability of the bark's lookout to see the steam-ship's powerful side lights as the vessels approached, (pressed with great earnestness and ability,) bas received careful attention. The light in position to be seen was that on the port side. Why it was not seen cannot now be known, with certainty. Whether it was because of obstruction from the steam-ship's fore-try- sail, as argued by the libellant, cannot be ascertained. That it may have been, seems possible to the assessors, as well as to myself. Not, of course, if the sail was held in proper posi- tion ; but, precisely what was its position, the respondent's witnesses differ about. That the inability to see the light, however, did not arise from atmospheric difficulties, seems clear; unless, indeed, the weight of the evidence on both sides be disregarded. As already shown, much less powerful lights, and even objects without lights, could be, and were, seen at a greater distance than these lights were off at the time. The allegation that the bark was "enveloped in a shower of rain and mist, which hid her from view," is not supported by the evidence. The first branch of the defence (that the accident resulted from inability to see the bark, by the observance of proper care,) therefore, fails. So far from the evidence sustaining it, as an affirmative proposition, the contrary is shown to be the faot. �Did the bark improperly change her course ? That she en- deavored to change it at the moment of collision, and was partially successful, is admitted. This, however, is not im- portant. Did she change it earlier ? Her duty was to hold ����