Page:Federal Reporter, 1st Series, Volume 7.djvu/268

 256 FEDBBiti BEPOBTEBl ' �The Nicholas, 7 Wall. 657, would determine this case, and the libel must be dismissed. But the positive testimony is to the effect that the Achorn kept her course. It wasonly aninfer- ence that she changed, because the witnesses were unable to account for her position at the time of the collision upon any other hypothesis. But there is one undisputed fact in the evidence which seems of significance here. Gaptain Hess says that the Achorn was struck about midships, in her star- board side, and that her main-mast gave way and fell over on the Maria & Elizabeth, If this be se, then either the mast fell against the wind, which is not probable, or the wind was on the port side, and the Achorn was continuing her north-easterly course when the vessels came in contact. After a consideration of the whole case, I think the weight of the testimony places the blame and responsibility of the collision upon the Maria & Elizabeth. Sailing free, she ought to have kept out of the \?ay. Some testimony was taken as to the value of the vessel and freight lost, but it was not of such a satisfactory character as to enable me to act intelligently without a reference. The case must go to the clerk, as commissioner, to ascertain and report the damageg; ��� �