course.

Under these circumstances, it was the duty of the schooner, as the vessels approached each other, and when near enough to involve the risk of a collision, to keep her course. The mate and wheelman testify positively that the schooner did keep its course until the propeller was coming directly on to the schooner and was only a short distance off when its wheel was put hard a-port under the captain's order to ease the anticipated blow. This affirmative evidence is to be believed instead of mere negative evidence It is to stand until it is overborne by other proof. There is no evidence of a positive character in opposition to this' affirmative testimony. On this point, the most that can be claimed for the respondent's evidence is, that it conveys opinions rather than facts, in opposition to the positive evidence on the part of the libelant. That kind of evidence cannot weigh against positive proof.

Steamship Co. v. Rumball, 21 How., 372 (62 U. S., XVI., 144); Johnson v. Scribner, 6 Conn., 185: Woodcock v. Bennet, 1 Cow., 711; Wilds v. R. R. Co., 29 N. Y., 315.

If a steamer makes the light of a sailing vessel at a sufficient distance to avoid coming in contact with the vessel, and a collision ensues, prima facie, the steamer is chargeable with fault. and the steamer must exculpate itself by clear and satisfactory evidence, or she will be held liable.

The Carroll, 8 Wall., 302 (75 U. S., XIX., 392); Oregon v. Rocca, 18 How., 570 (59 U. S., XV., 515); Steamship Co. v. Rumbull, 21 How., 372, 384 (62 U. S., XVI., 144, 148), above cited; Lowndes, Col., 14.

It appears by the evidence of the master, lookout, mate and wheelman of the propeller, that when they first made the red light of the schooner, it was from a point and a half to two points off the propeller's starboard bow, and that the schooner was then from a quarter to half a mile off.

The combined speed of the two vessels was about fifteen miles an hour. They would approach each other at the rate of a mile in four minutes. Those in charge of the propeller testify that they had, previous to this, seen the green light a point and a half or two points off the propeller's starboard bow. When the green light disappeared, and the red light appeared on the starboard bow, those on the propeller ought to have known that the schooner was passing to the port of the propeller. The space, then, between the two vessels being, as the master testifies, not less than one quarter of a mile, gave ample time for the propeller to port, and to pass to the windward and to the stern of the schooner, especially as they must have known the schooner was making some leeway. Instead of doing this, the master of the propeller ordered his wheel hard a-starboard, which swung the bow of the propeller to port. and in a direction to cross the course on which the schooner was then known to be proceeding. The indications to those in charge of the propeller were, while the vessels were passing this quarter of a mile, that the vessels must collide; for the red light,

The master of the propeller testifies that, be. fore seeing the red light, he saw the green light of the schooner, and it then “bore right dead ahead, or near that if "anything, a little on the starboard bow," that he then gave his wheelman an order "to put his wheel a-starboard; that he gave that order immediately on making the green light." The order was given before the master of the propeller had taken any time to ascertain the schooner's course. It was precipitate. There was not any occasion for giving the order then. The vessels were then, he says. two miles apart.

The order to starboard, followed up by the order hard a starboard, it is evident caused the collision.

Holt, Rule of the Road, 171; Lowndes, Col., 27; The Cleopatra, Swab., 135.

It is plain, from the language of the Act of Congress and from the adjudications upon it and similar Acts, that the rules therein prescribed are not binding until the risk of a collision becomes apparent. Until such risk does appear, it is evident that those in command of approaching vessels cannot know what precaution it is necessary to take to avoid a collision. The relative position and courses of the two vessels must be known, before any intelligent or safe action can be taken. If time is not taken to obtain such knowledge, any maneuver may be the very one which should not be made.

If doubt exists in the case of a steamer as to the proper course to be taken when nearing a sailing vessel, arising from difficulty in determining the course of the sailing vessel, then the steamer should "slacken her speed, or, if necessary, stop and reverse.

13 U. S. Stat. at L., p. 61, Art. 16; Holt, Rule of the Road, 200, The Joseph Staker v. The Karla.

The mere fact that the green light of the schooner, when first seen from the propeller at a distance of two miles, was nearly dead ahead, did not show anything to the propeller, by which it could be determined at once what order should be given. For the vessels were then two miles apart. From the time the propeller made the steamer's red light off its starboard bow, the vessels were proceeding in such direc tions as to involve risk of collision, and the propeller, by starboarding its helm, increased that risk. The vessels were then over a quarter of a mile apart, and the propeller was at fault for not porting or stopping. There was then ample time to do both.

The respondent's evidence fails, therefore, to exculpate the propeller. It in fact shows that the collision is attributable to the want of proper precautions on the part of the propeller.

The testimony of the libelant and his wit nesses shows that the schooner performed her duty by keeping her course, and that the pro peller was solely at fault.

The evidence on the part of the libelant shows great care, caution and attention. The mate and captain of the steamer, seeing that the propeller was steering directly for the schooner, so as to involve risk of a collision, or

dered a torch lighted, to attract the attention of the propeller, and warn it of the danger. The first light from the torch did not, apparently, attract the attention of the propeller, for it continued to bear for the schooner. A second flashlight from the torch was made. The man at the wheel was cautioned, at the same time, to keep the schooner steady on her course. He testifies that he did so.

There is not any dispute as to the fact that the propeller starboarded its helm, but the witnesses of libelant and respondents differ considerably as to the then relative position of the two vessels, and as to the distance there was then between them.

The libelant's witnesses testify that when the second torch-light went out, the vessels were very near each other. It was at this time that the libelant himself stepped on top of the cabin. The vessels were then, as the libelant testifies, from one quarter to half a mile apart.

The master of the propeller testifies that he made the red light of the schooner after the second torch-light went out, and that, when he did so, the vessels were from a quarter to half a mile apart, not less than a quarter of a mile. He testifies that some little time elapsed between the disappearance of the second torchlight and the appearance of the red light of the schooner.

The master of the propeller testifies that he gave the order, hard a-starboard, as soon as the red light of the schooner appeared. He testifies, furthermore, that he did not give the order by the bells to the engineer to stop and back, until he saw that he could not clear the schooner. The libelant's witnesses testify that the propeller, suddenly, when very near the schooner, swung to port and came right on to the port bow of the schooner, showing the green light and shutting in the red light, just as the vessels were coming in contact. This was of course when the propeller's helm was put hard a-starboard.

It is evident that the distance between the two vessels, when the propeller put her helm hard a-starboard and swung to port, was about as the libelant's witnesses state, and not so great as that given by the respondents' witnesses. This will more satisfactorily appear when we bear in mind that the bells to stop and back were rung in great haste. The engineer says, when he got the bells he was standing by the starting bar, and immediately executed the order. That this was about thirty seconds before the vessels collided; that he got the engine reversed, in about five seconds, and it had made about six backward revolutions as the vessels came together. The captain and mate of the schooner heard the jingling of the propeller's bells, when the propeller was a very short distance from the schooner, not more than one hundred feet off. There was evidently a sudden emergency when the signals to the engineer were given, for the captain of the propeller did not check his speed before giving the order to stop, and he repeated the order before the engineer had executed the first one," fearing the engineer would not get the first order. There was haste in the maneuver, and before it was made, it is evident that the vessels were in a dangerous proximity. The blame rests with the propeller for getting the

vessels into that position, and it must be held liable.

The Lucille, 15 Wall., 676 (82 U. S., XXI., 247); Benetly v. Coyne, 4 Wall., 509 (71 U. S., XVIII., 457); The Carroll, 8 Wall., 302 (75 U. S., XIX., 392); The Fairbanks, 9 Wall.. 420 (76 U. S., XIX., 708); see, Law Reg. for Feb., 1870, p. 118.

If the propeller, having the green light of the schooner two points off its starboard bow, starboarded its helm, and kept it so until the order hard a starboard was given, its red light could not have been seen, from the time it made the schooner's green light to the time of the collision, even if the schooner had ported and gone off before the wind. Besides, the vessels could not have collided at all under those circumstances.

The respondents' theory is, that the propeller was to the leeward of the schooner's course, and never passed to the windward of that course at all, but kept to the leeward with a starboard helm. The collision could never have occurred, if that had been the relative positions of the vessels when the propeller starboarded.

The question, relative to the position of the schooner's lights, is not of any importance in this case, as it affirmatively appears that they were so placed as to be and were visible to the master, mate and lookout of the propeller, as they admit, at the distance of two miles. It is not claimed by them that they were, in any respect, misled by the position of the schooner's lights.

Hence, if they were wrongly placed, it is not of any importance in this instance. The Vivid, Swab., 89; Flavia Gioja, 3 Mitch. Mar. Reg., 757: The Juliana, Swab., 22.

But the libelant claims that the provision of the statute, relative to carrying lights on sailing vessels, does not designate the place where they are to be located. The statute is complied with, if they are so placed as to be fairly visible. The phrases, on the starboard side" and "on the Îarboard side" of the vessel, do not relate to the sides of the hull of the vessel, but to the side on which the reflection of the light shall be seen. The green light is to be exhibited on the right hand, and the red on the left hand.

The City of Carlisle, 10 Jur. (N. S.), 965; The City of Carlisle, 8 Mitch. Mar. Reg., 943; The Emperor v. Lady of the Lake, Privy Council, 8 Marsh., 1865.

Mr. George B. Hibbard, for respondents: The speed of the propeller was about ten miles an hour, and that of the schooner probably about five or six miles an hour.

The original course of the propeller, by her own compass, was east three quarters north, but as is common, her compass so varied that her true course was east by north, half north. The original course of the schooner, by her compass (there is no proof whether or not it varied, as compasses almost universally do) was, as he claims, early in the evening, southwest by west, and later, southwest by west, half west. Whatever her course and the wind were, she had a good full on, before she made the changes of course, as she did after she saw The Wenona. That she made at least two distinct and very considerable changes of course, after she saw The Wenona and before the collision, is beyond ques

tion on all the proofs, and is put beyond possibility of dispute by the finding of facts in the case, that the propellor did not port.

See, opinion of district court (The Wenona, 4 Ben., 212), and of the circuit court, The Wenona, 8 Blatchf., 504.

The signal lights of the schooner were beyond question bad. They were not placed on the sides of the schooner, but both on the pall bit. They were not properly screened. They were separated by an inch and a quarter board. some nine or ten feet long, although they were from a foot and a half to twenty-two inches apart and although they reached only about a foot above the rail, the bow-sprit, twenty-two inches in diameter, and all of it, of course, reaching above the rail forward, formed a continuation of the screenboard. It was impossible to see either, therefore, dead ahead. It was impossible to see both together. Heeled over to starboard, somewhat, as the schooner would be if she was making leeway at all, and with her rail rising forward, it would be impossible that her red light could be seen at all, until she headed, as she did before the collision, so decidedly across the course of the propeller.

Even the district court found the signal lights of the schooner to be bad. It decided that the schooner made one change of course before the collision, and that that change was when the vessels were a considerable distance apart. The Wenona, 4 Ben., 214.

It utterly ignored the proof (and does not refer to it in stating what the testimony was) so absolute even on the part of the schooner, which, taken in connection with the libelant's proof, shows beyond question that the schooner made another and prior change of course, as the circuit court has substantially found was the case (The Wenona, 8 Blatchf., 509), or that one continuous change was begun long before the change found by the district court. It is even necessary to find that such prior and important change was made, it is submitted that, to make the opinion of the district court consistent with itself, to make the proof on the part of the schooner at all consistent with truth, more especially when the district court finds that the propeller did not port her wheel (The Wenona, 4 Ben., 212), as, on the trial, it was the whole effort of proof on the part of the libelant to show she did.

It is proposed to show: First. Generally, that the propeller was not in fault.

Second. That the schooner was in fault; that she committed the distinct faults of having bad signal lights and improperly changing her

course.

Third. That the faults of the schooner produced the collision, this involving more close consideration of the conduct of both vessels, and Fourth. That upon fact, principle and authority, the decree of the circuit court should be affirmed.

I. The propeller was in no degree in fault. 1. Fault in collision cases, is not some point of conduct upon which criticism may be made. It is not even some point of conduct which a court may think to be even erroneous or a mistake. To condemn a vessel because, in the opinion of any court, she may have been in error or mistake, when it is not found that she commit

ted distinct faults, would be to substitute mere individual opinion, no matter how unintelligent, for the science of the law; science as applicable to collision cases as to any others. To commit a fault, is to violate some statute, some rule, some custom, not merely to err.

2. Where a fault is established upon the part of a colliding vessel, that vessel should be held entirely responsible for all consequences, unless it affirmatively appears, that with that fault known to the other vessel (there being no possibility of her being misled by it) she also has committed affirmative fault which contributed to the collision.

3. The propeller was not in fault in this case. Upon full and accurate consideration of the testimony, this will be seen most plainly. She violated no law, rule or custom. To violate either, she must have done something wrong, with reference to her then situation, to the appearances, the guides for her conduct, recognized by the maritime law. It is but commonplace to say (and yet how often in collision cases is it not recognized!) that it is substantially immaterial to conclude that if something had not happened the collision would not have occurred. In any collision, if the most innocent vessel, it may be said in illustration, had done anything else, had violated every possible rule, the collision would not have happened. The question is: did the vessel conduct herself with ordinary care, skill and judgment under the then circumstances and with reference to appearances which should guide her? In short, did she, under such circumstances and with reference to such appearances, observe the rules prescribed for her then to observe?

4. That the propeller was well officered, that her watch was perfect, is beyond question.

5. That the propeller did not commit any fault, will appear from general consideration of her course and conduct. Such consideration will require only statement of the leading facts respecting her navigation.

(a) The propeller's signal lights were good. The singular attempt to show they were not, upon the theory of some of the libelant's witnesses, is of no sort of consequence. The quality of the propeller's lights had not, nor had anything con. nected with them, anything to do with the collision.

(b) The propeller's true course was east by north, half north. She first saw the torch light of the schooner substantially dead ahead, or if anything, about a quarter or half a point on her port bow.

The light was then, as has been stated, about one and a half or two miles off. This light was simultaneously seen by master, second mate and lookout. This was about eight or ten minutes, as was estimated, before the collision. In a short time after this first torch-light went out, the green light of the schooner was first seen from the propeller, substantially dead ahead, or, if anything, a little on the propeller's starboard bow. This, of course, indicated that the schooner was passing to starboard, and would pass the propeller starboard to starboard. The master of the propeller thereupon ordered the wheel of the propeller a-starboard. This, as is estimated by different estimates, was from five to eight minutes before the collision. The schooner then showed a second torch-light, and a green light

See, especially, The Queen, 8 Blatchf., 234; | The Potomac, 8 Wall., 590 (75 U. S., XIX., 511); The Scotia, 14 Wall.. 170 (81 U. S., XX., 822; Gladstone v. Chamberlain, 7 Blatchf., 208. II. The schooner was guilty of two distinct faults, the worst, the only ones substantially, that she could commit. These faults were fatal and, as will be seen, caused the collision. She had bad signal lights. She changed her course. She caused the collision.

1. The allegations of the libel, sworn to by the master of the schooner and the libelant, who was on the schooner at the time of the collision, state a case widely different, in important features, from the case claimed on the trial. This covers the libelant's case with suspicion.

The William Penn, 3 Wash. (C. C.), 484; The Aurora, 1 Lush., 327.

The lights of the schooner are alleged to have been on the vessel's side, etc.

before the decided change of course, which the schooner made, as already appears, but will be more conclusively shown, took place? 3. That the exhibition of a bad light is a most important fault is, of course, beyond question; and that, when such fault is shown to exist, the burden is on the vessel guilty of such fault, to show that the collision would have happened even if her light was good, and was in no degree attributable to that fault, these positions are beyond question.

The Continental, 8 Blatchf., 3; The Lion, 1 Spr., 40; The Anglo Norman, Newb., 492; Bullock v. The Lauch,8 Law Rep., 275; The Miranda, Newb., 227; Lowndes. Col., 88; The Ariadne, 2 Ben., 472, and 7 Blatchf., 211.

The libel alleges that very soon after the white light was seen, the red and green light of the propeller was seen, apparently about a mile ahead of the schooner, and that the hull of the propeller was soon discovered on the port bow of the schooner, etc. The district court finds that this was not so; for, as has been seen, it finds that the propeller did not port her helm and, therefore, could not have got off the schooner's port bow at any such time, unless, indeed, it might be by the schooner's change of course. 2. The schooner's signal lights were bad. They were bad as a matter of fact. They were not on the side, but were both placed on the pall bit. They were not properly screened. They did not show from dead ahead to two points abaft the beam. They could not both be seen from dead ahead at once, and the bowsprit obscured them from vessels dead ahead and, heeled over to starboard as this vessel must have been, if she was making so much leeway as is claimed, her red lights could not have been seen by a vessel off her port bow, when it was so little above the rail. These things, it is claimed, the proofs show. The district court held this light to be bad, that it was bad upon authority. The Urania, Swab., 253, The Mangerton, Swab., 124; Lady of the Lake, Holt, Rule of the Road, 38; Lowndes, Collision, pref., VI.; The City of New York, 8 Blatchf., 194; The Ariadne, 7 Blatchf., 211.

Had a red light been seen by the propeller at any time while she was governing her conduct by the opening green light, the wheel of the propeller would have been put the other way, or that thing would have been done which a competent and vigilant propeller's crew would have done had a red light been thus seen.

How does it excuse the schooner, when her green light was alone seen, and everything was done which it indicated should be done; when her red light was not seen when it should have been, had it been properly placed, if there be any truth in the libelant's allegations or proofs,

always the case in collision causes, but, both he and the captain and others on the schooner swear to things absolutely, which could not have existed had not this change taken place; things, although ther are positively sworn to by the leading witnesses on the part of the libelant, the district court has not even alluded to, although they are by far the most important facts in the whole case.

The district court substantially finds that when the captain of the schooner gave the order to his wheelman to change the course of his vessel, to put her wheel hard a-port, the vessels were several hundred feet apart.

The whole evidence of the schooner's crew is, that this order was given when the vessels were close together, but a few seconds before the collision,

There was a change, of course, on the part of the schooner before this.

(a) This, the whole proof on the part of the propeller shows; for the whole proof as to the opening green light, and the suddenly exhibited red, shows it.

(b) This, the finding of the district court establishes, when it finds that the propeller did not port her wheel.

(c) This, the proof on the part of the libelant shows most conclusively, as will be soon shown. It was the claim of the libelant that the propeller put her wheel a-port and ran off on the schooner's port bow. If the course of the schooner had been changed, the appearances would have been the same as if the propeller had put her wheel a-port. She did not put her wheel a-port as the proof shows, and as the district court finds. Therefore the schooner's course must have been changed, at the very time when her crew thought (and they all might be ignorant of the change except the wheelman) the propeller ported her wheel and run off on the schooner's port bow. The wheelman of the schooner shows this more conclusively than anyone else.

He says that when he made the change of the wheel, under the captain's orders to put the wheel hard a-port, the propeller was not more than a length off, and this is in consonance with the other proof on the part of the schooner on that precise point; and yet he says that before this, for he says he put the wheel hard up afterwards, under the captain's orders, the pro.