Page:Federal Reporter, 1st Series, Volume 9.djvu/235

 220 FEDERAL REPORTER. �it is quite consistent with the testimony that the schooner changed her course four points, or more, perhaps,- partly through the careless- ness or inattention of the wheelsman, before the captain took the wheel. The other circumstances, relied on as controlling the testi- mony of those on the bark as to her course, are not sufficiently certain or definite to overthrow the positive testimony of several witnesses. It is argued that N. by W. was the proper course of the bark, and that there was no reason for a change to N. W. by N. at 4 o'cloek. But the testimony from the schooner, as well as that from the bark, shows that at 4 o'cloek a sudden change in the wind to west, or north-west, was thought to be very probable, and this anticipated change is sufficient to account for a change of course somewhat to the westwardof the direct course to Sandy Hook. Other circum- stances need not be referred to in detail, �Assuming, then, that the course of the bark was N. W. by N., and that she made the green light of the schooner between two and three points, on her port bow, at a distance of a mile or less, it is evident that the schooner was to windward, and, under the seventeenth rule of navigation, bound to keep out of the way, if the. bark had her lights set and burning so that the schooner could have then seen her. The next question, therefore, is whether the bark's port light was burning. The four surviving witnesses from the schooner testify that they saw no light on the bark. Two of these witnesses — the captain and the mate's son — did not come on deck till after the captain was called. The bark herself was then in sight, and it is no unusual thing, norshould it excite surprise, that persons seeing the other ves- sel only immediately before the collision, and when she is herself quite visible to them, do not notice whether or not she bas lights. Their attention was instantly drawn to the vessel herself, her sails and hull, and the manner of her approach. As to, the mate and the lookout this is true in a far less degree, but still the lookout certainly made out the object to be a vessel as soon as he looked at it. �The mate testifies to seeing a black speck before he called the look- out, though the libel cpntains nothing of this, but rather gives the impression that what they first saw was what they took to be the loom of a vessel. Admitting, however, that it is a singular circum- stance that these two men did not notice the light if it was there, and giving full weight to the fact as evidence of its non-existence, still they œay possibly have failed to notice it; and, at any rate, the great weight of the testimony is that it was set and briglitly burning at and before the collision. There is evidence that it was so set in a crane ��� �