Page:Federal Reporter, 1st Series, Volume 9.djvu/234

 XHB NAHOB. 219 �Bchoouer's light may, I think, bo accounted for by the fact that slie was not kept steady on her course. The mate of the schooner testi- aes that it was very difScult to keep her steady ; that she ran in the trongh of the sea, which was yery heayy. He admits that she yawed a point or more each way from her «ourse, and that it requir'ed con- stant movements of the -wheel to keep her on her course, and some- times he had to turii the wheel completely over tobring her back. He testified, also, that the wind was quite unsteady. She was runtiing 80 nearly at right angles with the course of the bark that it may well be that by her yawing the bark was brought for a brief space of time more than two points abaft her beam, which would obscure her light. It is not necessary, on the faets, to find that this disappearanoe of the light was for any great length of time. It was shortly before the collision, and about the time the schooner herself came plainly in view to those on the biark ; and those on the bark would be very likely not to notice the light if it reappeared after they could see the schooner herself. Indeed, if the witnesses from the schooner observed the bearing of the bark aright, when they first saw her, she then bore more than two points abaft the beam, and the light must have been invisible to those on the bark. I think the testimony of the mate shows that after he caught sight of this bark he was in a state of alarm, and his attention may have been distracted from his proper duties at the wheel, and he may have let the schooner keep off some- what without being aware of the fact. When the captain came on deck a collision was imminent. He testifies that after taking the wheel he looked at the eompass, and that she was on her course, or very near it. His looking at the eompass must, under the circum- stances, have been a mere hasty glance. It was then a matter of seconds merely before a collision, or before a hair's breadth esoape from a collision. I think little reliance is to be placed on such an observation as opposed to the positive testimony of those on the bark, taken in connection with the faet that the bark bore more than two points abaft the beam of the schooner. As to the number of points the schooner changed, the testimony of her captain, taken in connection with the libel sworn to by him, is most unsatisfactory. The libel distinctly admits two points. He swore to that when the facts were fresh in his recollection. On the trial he would hardly admit that she changed at all. This was one of the critical points in the case. This inconsistency is evidence that his mind is so much biased on the subject as to render his judgment^wholly untrustworthy, without imputing to him any intention to misstate the facts. I think ��� �