Page:Federal Reporter, 1st Series, Volume 8.djvu/185

THB FSIIDDIE L. POETER. 171 �then he ordered the wheel to be steadied, and went aft to loose the tackle of the main boom. Before he had reached his destination he turned and saw only the green li^ht of the sloop, by which he found that she had tacked and was running across his bow ; then he oMered his wheel td be ported agaiu, and the answer was that it was hard a-port; then the collision took place. The two witnesses for the sloop say that the last tack was made abont 20 minutes before the collision. �The mate's story cannot be acourate. His vessel was sailing directly before the wind; the sloop was five points off, and therefore he could not see both her lights "ahead,"unless when she was com- ing into the wind to tack. If he saw them under those circumstanoes, he must admit that he had time to clear the sloop, for it was the first time he had seen her, and he was bound to see her in season; and he should have put his helm to starboard. I do not mean that he did see a tack at that time. From his evidence alone, if it were uncontradicted, I should say that he or his iookout had failed to see the sloop seasonably, and I have little doubt' that the collision was caused by exaetly that oversight. At all events, I agree with Judge Fox that the claimants have failed to sustain the burden of proof. �I have examined the evidence as to the logs of the sloop. The master of the schooner was of opinion that shewas not much injured; but his wish was father to the thought. He took no pains to verify it. After the suit is brought, it is rather late to begin to array cir- cumstancea and inferences upon a matter thai could easily have been made certain at the time of the loss. I find the preponderance of the evidence to be that the sloop was sunk and totally lost. �The question of damages for freight is more dif&cult. The vessel was chartered by a paroi contract, which bound the charterer to fur- nish her with employment for the season, in daily or frequent trips from Cape Ann or Quincy to Boston, at a certain price, by the ton, for stone carried. It was a single and entire eontract, which much resembled an ordinary time charter. The district court assessed the net freight for the unexpired time of the charter. Upon the analogy of the insurable character of the freight under such a contract, and of the authorities cited by Judge Fox in 4 Fed. Hep. 822, though I think the decision may be an advance upon any ■Which has been made, I do nut think it is opposed to any principle, and affirm it as reason- able and just. Decree affirmed. ��� �