Page:Federal Reporter, 1st Series, Volume 9.djvu/590

 THE VESPEB. 576 �As the lights of the Vesper and Mayflower were certainly visible long before the collision, but were not seeu, and as they must have been seen had the cook and deck hand been on the lookout, as they allege, it follows that little dependence can be placed upon any of their testimony ; andreliance on the captain's testimony is also much weakened, not only by the errors and carelessness above shown, but by his positive testimony that he was steering for the custom-house barge-light at the battery, a light which has not been in existence for several years, whilo there was no single or delinite light to supply its place. �As all the witnesses on the John Jay say that they saw no side lights of the Vesper, little weight can be given to their testimony a» to the course and direction in which they supposed the Vesper was coming. �The want of any previous wateh, and the captain's want of knowl- edge that he was approaohing any steamer, put him probably in great confusion, and alarm upon his sudden discovery of a steamer in close proximity, and pfevented any cool or correct observation of her course, or any proper judgment of the need of change of course, by himself. Those on the Vesper had been long in constant watch of the John Jay; their navigation was correct, if their testimony is to be believed ; their account of the collision is consistent and credible, and as it is confirmed by the captain of the Mayflower, who had full opportunities of observing, and who is in no way interested, I seo no reason to discredit it, and I must, therefore, hold that the collision was without fault on the part of the Vesper, but was brought about primarily by the want of a proper lookout on the John Jay, and the Want of steady and observant navigation, which led, upon the sudden and unexpected discovery of the Vesper, to a hurried and injudiciolls change of course, in consequence of which, solely, the collision occurred. �The libel should therefore be dismissed, with costs. ���It would not be proper to confine the word "trial," as used in the third section of the act of 1875, to trials as understood at common law, because it applies to "any suit of a civil nature at law or in ��� �