THE SUPERIOR

THE SUPERIOR. (Circuit Court of Appeals, Second Circuit. July 23, 1913.) No. 244. Collision '(§ 125)—Suit fob Damages—Sufficiency of Evidence. The libelant held not to have sustained the burden of proof resting upon it to establish the allegations of fault made in a libel for collision. [Ed. Note.—For other cases, see Collision, Cent. Dig. §§ 266-279; Dec. Dig. § 125.*] Appéal from the District Court of the United States for the Southern District of New York. Suit in admiralty for collision by the Interstate Lighterage Company, as owner of steam lighter No. 20, against the steam tug Superior, the Lehigh Valley Railroad Company, claimant. Decree for claimant, and libelant appeals. Affirmed. The following is the oral opinion of Veeder, District Judge: It is perfectly obvious that this testimony cannot be reconciled. But the general situation satisfies me that the libelant has not sustained the burden of proof by credible testimony. There is no doubt that the Superior came from the New Jersey shore and was angling over towards New York. Nor is there any doubt that the Interstate was bound downstream. Whatever the truth may be as to what happened after that, I fail to see any faint on the part of the Superior. She kept her course, as she had a perfect right to do, and as she was bound to do, and I think that the preponderance of the evidence shows that this accident happened when both the Superior on her course and the Interstate off her course, from whatever reason, were pointing in towards and were near the New York shore. Such being my conclusion, it is unnecessary to discuss the testimony concerning the steering gear of the Superior. I shall have to dismiss the libel. This cause comes here upon appeal from a decree of the District Court, Southern District of New York, dismissing a libel filed against the steam tug Superior to recover damages sustained by steam lighter No. 20 from a collision with the Superior. Foley & Martin and F. A. Spencer, Jr., all of New York City, for appellant. Harrington, Bigham & Englar, of New York City, for appellee. Before LACOMBE and COXE, Circuit Judges. For other oases see same topic & § number in Dec. a Am. Digs. 1907 to date, & Rep’r Indexes [MAJORITY — PER CURIAM.] PER CURIAM. The decree is affirmed on the opinion of Judge Veeder. Note.—Judge Noyes heard the arguments, participated in the consultations, and agreed in the conclusion of this court, but resigned before the filing of this decision.