Page:Federal Reporter, 1st Series, Volume 8.djvu/541

THE BADuEa 9TATE. 627 �to the vicinity of the crib, where she was let go, and procee.dea to make sail. �The wind was about south-west, aa ia shown by the witnessea on both sides. The jib and foresail of the schooner were set, and ber course was laid north by west. The captain, Thomas Matthews, was at the wheel, and the mates and seamen were engaged setting the remaining sails, when the lights of the propeller were discovered nearly ahead; the course of the steamer being, aceoMing to her witnesses, about south by east. The schooner did not change her course, and the steamer kept her course until a very short time be- fore the collision, when she put her wheel to starboard, and swung to port so as to strike the schooner a severe but glanoing blow on her starboard quarter, just abaft the main rigging, doing some damage to the schooner. The case was duly referred to Gommissioner Proud- foot, who bas taken the proof and reported, finding that the collision was occasioned by the negligence of those in charge of the steamer. To this report the respondent has filed exceptions, which have been fully argued. The substance of these exceptions is that the proof s show the collision occurred through the negligence of those in charge of the schooner, and not from any fault or neglect on the par t of the steamer, because — �(1) The schooner did not have a proper lookout ; (2.) the achoonei did not have proper signal lights set, as required hy law, and did not display a torch in proper time to secure attention from the steamer; (3) that the captainof the schooner was intoxicated and incapable of attending to his duty. �At the time of the hearing on the exceptions, the testimony of three of respondent's witnesses tended to show tha't the captain was intoxicated on the night of the collision. Since the hearing, the deposition of Capt. Matthews has been taken and put into the record, in which he emphatically denies the charge of intoxication, ' and shoWs the respondent's witnesses to be so far mistaken in regard to other matters connected with his hiatory as to at least seriously impair the value of their evidence upon the main charge of drunkenness. �In cases of collision between a steamer and schooner, the pre- sumption as to who is at fault is stated by the supreme court of the United States as follows : �"If the two vessels in this case were approaching each other in opposite directions, so as to involve risk of collision, the duty of each was plainly marked out by the law. The steamer was required to keep out of the way, slacken her speed, or, if necessary, stop and reverse, while the schooner was required to inaintain her course, and was not justifled in ehanging it unless obhged to do so to avoid a danger that immediately threatened her. As the ��� �