Page:Federal Reporter, 1st Series, Volume 6.djvu/935

THE MART SHAW. 923 �The case of The Milwaukee, 1 Brown, Adm. 313, is in many respects similar to the one under consideration, and is very ably discuBsed by Judge Longyear. He very distinctly states the law applicable to the cafee of a steamer which, in a nar- row channel, bas gone contrary to the statutory raie, and undertakes to justify herself by an interchange of signais. As he states it, the burden of proof is upon such a vessel to establish by clear and satisfactory proofs — (1) That a propo- sition to depart from the statute was made by her by means of the prescribed signais, and in due season for the other vessel to receive the proposition and act upon it with safety; (2) that the other vessel heard and understood the proposi- tion thus made ; (3) that the other vessel accepted the propo- sition. �Taking the case as made by the answer of the tug, and the testimony offered on her behalf, it plainly appears that those in charge of her relied on their expectation that the steamer would desire to take the eastem side of the channel, — that is to say, upon the custom which they allege to exist, — and paid no attention to the faet that their signal was not answered. �Dr. White, a passenger of the schooner who happened to be in the tug's pilot-house, testifles that he saw the steamer's green light when the tug's first signal was given; that they received no answer, and then the steamer's green light was shut out, and they saw her red and continued to see her red light until the steamer was within about the length of the court-room, when the second signal was given; that the steamer then answered with two whistles; that he was get- ting alarmed, and he said to the mate: "It is ail right, now he has answered;" and the mate replied: "Yes, but she is showing her red light ail the time; she don't change her course." �Eichardson, the mate, who was at the wheel, says, when he gave the first two whistles and starboarded bis wheel the steamer was about three-quarters of a mile off, and he ex- pected she would want the east side of the channel, and he steered to bring himself on the western side; that he listened ��� �