Page:Federal Reporter, 1st Series, Volume 9.djvu/588

 THE -VESPER. 573 �ing Governor's island, keeping Eobbins' Eeef light one point to star- board, must have been fully a quarter of a mile to the east of the edge of the flats, or a half mile to the windward of the course which the captain says he took and kept after leaving the kilns. As the mouth of the kilns is but two miles distant from the place of collision, a deviation of half a mile to windward in so short a distance could only arise from very careless navigation, as well as careless observation. �If, from the time of leaving the kilns up to the time of porting, just before the collision, the John Jay kept a steady course un- changed, as her witnesses testify, then the change from her red light to her green light, some considerable time before the collision, which the witnesses from the Vesper and the Mayflower all assert, would show that the Vesper had already passed the point of intersection of the courses of the two vessels, as there is no claim that the Vesper had, before that time, changed her course, and there was no occa- sion for her doing so. �The claim that the John Jay was all the while really heading for the Vesper, but that her red light, after a time, became permanently hidden behind her jib, except as it momentarily appeared and disap- peared three times from the fluctuations of the jib, is not consistent with all the facts, and would not, in my judgment, even if true, entitle the libellant to recover. Had the John Jay's course been steady, and the red light been first obscured by the jib only as the Vesper was passing to windward of her, the momentary appearance and disappearance of the red light, arising from the fluctuations of the jib, would have occured at or near the time wben the red light first disappeared; whereas, they did not occur then, but some con- siderable time afterwards. They should have been seen also from the Mayflower, which was not the case ; the change there seen was from red to green, clear and solid and continuous, tmtil the John Jay ported. �It is much more iikely that the reappearance of the red light arose from unsteady navigation, of which the place of collision affords strong evidence,'as above shown. This is rendered the more probable from other circumstances in the case. The captain of the John Jay was not steering for any single or definite point. There was no such custom-house barge-light at the battery as he testified to, but only the cluster of low lights, extending a quarter of a mile upon the water front. There are severai higher lights further up the city; but it does not appear that he had any one of these in view. As the low lights of the battery were approached within three miles they would stretch over a considerable expanse. AU that the captain aiœed at ��� �