of thettl hirnsiM, '(otherithll.n those examined in the district court,) nor did he apply fora ccilltirluance of the case to enable him to discover their whereabouts, apparently.relying upon the inferences which he insisted should be drawn from their non-production by his adversary. As to these ' witnesses the affidavit merely states"'That; through' sources information which became known to deponent his recovery td llPalth. in the winter of 1889-90. rleponent got on the tral'k of persons who were members of the crew,of theNllwport, besides tbose examined herein. ",
There is nothing to show that the same methods of investigation as energetically applied ,would not have enabled him to get on the,track of those witnesses before the trial of the case in the circuit court. S. ',A witness from a coaStwise steamer tlwt 'was in mght of the Newport the,rnorningajterthe coUilfion. Information as to the presence of such steamer was obtained from the diary of a passenger. ,Had the passenger been found before, this witness could also have been found. 4. Fmpe:rts a8 to the distance at which shore lights can be Seenja8 to the effects ojcoUiaiJmj and as to the effettofa change oj helm upon the liJlt ojd vessel. Such evidence could of have been obtained on the trials both 'in the district ahd ,circuit \lourts. , 5: "Tht chief officer ojthe'wcho(mer Parker M. Houper, whick, on February ,23, .1884., (the night oj the collision,) ca'l'l'tein contact with a 'I'IUf.8t sticking out olthe water, near the place oj't'lUiWm. No particular explanation is given in the afflrlavit as to the discovery of this witness, but, assuming that it fortuitous, there is' not enough in his testimony to warrant the reopening of the caSe after this lapse of time. The motion is denied.
'DUNCAN 11. THE
(O£rcwtt Court,E. D. Louisiana. Ootober 18, 1800.)
In o,ases lllvolving questions Of faot only depending on evidence, and the credibllit1 of witnesses, the circuit court in admiralty wHlnot disturb the decrees of the district court,. where there 18 no preponderance of e:vidence, and no adevidence olferedon Bllpeal.
ON APFBALo ',.'
.Th<:\ Ipllo",ingare the
. i," ' ,
of the qistrict court , .
to in the
"This can.ecame on, to be beard,l\nd was llrgl!ed by On consid· eI;ation is. satisfied and finds tbat in la w tbe: !!,team-tug, was in fault for tile c'ol!,isiOn" which happened between her and 1i!lelant's lugger on the 2l:lth pf Feb.rtla'r.r,l889. and 'thel'efore the ,libelant is entitled to recover the damages 'sustained by bim in thapreiLlist:S,and amoullting under the proof toonllhundreJ!aud lift! ,
THE TBAN8ll'D· NO. "
T.M. Gill, Cor clabnant. H. Delesdern.jer, for libelant.
PARDEE, J.The Case presented to this court, gtowing out of the collision of the tug Nicholls and the libelant's lugger, presents onl)' questions of fact-The correct decision of these questions of fact depends upon the credibility to be given the witnesses on both sides. The important fact in the case is whether the libelant's lugger unnecessarily and improperl)' changed its course when in front of the defendant tug. After a careful and painstaking examination of the whole case, comparing and weighing the evidence given, I am unable to reach an opinion contraty to the findings of the district judge, and therefore affirm the decree given by the district court. Iricases involving only facts, and upon conflictiilg evidence and the credithe proof of these facts bilityofwitnesses, where there is no preponderance of evidence, nor additional evidence offered on appeal, the circuit courts in admiralty do not bn appeal disturb the decrees ofthedistrict court. For both reason and authority, seeThe TluJrnas Melville, 37 Fed. Rep. 271, 36 Fed. Rep. 708; The Saratoga, 40 Fed. Rep. 509. The following decree will be entered in this ease: This cause came on to be heard upon the transcript of-appeal, and was argued. On consideration whereof it is ordered, adjudged, and decreed thatthe libelant; H. Duncan,' do have and recover from' JaineS Sweeney, owner of' the tug-boat Gov· Francis T. Nicholls, claimant iIi this cause, and from Charles.4.. Miltenberger, surety of said Sweeney on the bond of release in 8olido, the sum of $150 damages, with 5 percent. interest from judicial demaxid; to-wit, from March 9 1889, until paid; and all costs of the district'aIidcircuit cOurts.
·THE .TRANSFER No. 4. 1
& N. Y. FERRY Co.
'11. THE TRANSFER
Court, E. D. NewYor1c. December 8, 1890.)
CBOSSING-PUTY TOE:OLD COUBSE.
. ''Where a tug, haVing' the right of way over a ferry-boat on a crossing course, whistltld to indicate that she would cross the bow of the ferry-boat, ,but immediately changed her wheel to swing away from the ferry-boat, and continued SWinging until the vessels collided, it was heW that the collision waa the fault of the tug in not holding her course.
In Admiralty. Suit for damage by collision. Wilcox, & Macklin, for libelant. Page & Taft and R. D. Benedid, for claimant.
by Edward G. Benedict, Esq., of the New York bu.