The Commerce/Opinion of the Court

If the schooner was guilty of any fault which caused the collision, or contributed to it in any degree, it was in a change of her course, which the respondents allege she made when the vessels were about four hundred yards from each other. No other fault was averred in the answer to the libel, and no other has been suggested in the argument here. But the evidence utterly fails to establish the allegation of any change of the course of the schooner after the steamer hove in sight, or after she was seen from the steamer. Not only is there the direct evidence to the contrary of the master and pilot of the schooner, as well as of a disinterested witness who saw the collision from a yacht two or three hundred yards westward from the place where it happened, but it is made abundantly manifest that a change of course was then impossible. There was a dead calm, with not a ripple upon the water, and the sails of the schooner were amidships, swinging inboard. She was drifting with an ebb tide, and could be kept straight only by an oar. Such is the overwhelming testimony. And nothing appears on the other side except the statement of the master of the steamer, who has testified that 'the wind was about southeast, and, as near as he could judge, about a two-knot breeze.' As the steamer was on a southeast course, and making six or seven knots, this testimony is very light evidence in the scale against the proofs that the schooner was becalmed, and consequently that the averment of a change of her course is without foundation. The case exhibits nothing, then, to justify the steamer's failure to keep out of the way, and she was properly condemned.

It is said, however, she has been mulcted in excessive damages. The District Court and the Circuit Court concurred in the assessment made, and we do not perceive that more was allowed to the libellants than the evidence warranted. When both the lower courts have agreed in their estimate of the damages, we ought not to set aside their conclusions without satisfactory evidence that they were mistaken. We have no such evidence before us.

DECREE AFFIRMED.