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ENGLIS et al. v. DAVIS. THE CLERMONT.

(Circuit Court of Appeals, Second Circuit.

January 8, 1923.)

Nos. 139, 140.

Admiralty 118 — Finding on direct and positive testimony, believed by judge who saw witnesses, not disturbed.

Where an appeal from a decree in a collision case involved a question of fact only, on which reconciliation of all the evidence was impossible, a finding by an experienced trial judge, after seeing and hearing the witnesses, based on his belief of direct and positive testimony as to the location of one vessel, will not be disturbed.

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' Appeal from the District Court of the United States for the Southern District of New York.

Cross-libels by C. M. Englis and others against James C. Davis, Director General of Railroads, and by James C. Davis as Director General of Railroads against the steamship Clermont, of which C. M. Englis and others were claimants. From a decree for the original libel-ant, the Director General appeals.

Affirmed.

Macklin, Brown & Van Wyck and Pierre M. Brown, all of New York City, for appellant.

*137Bingham, Englar & Jones, of New York City (Leonard J. Matteson, of New York City, and Charles W. Hagen, of East Orange, N. J., of counsel), for appellee. . -

Before ROGERS, HOUGH, and MANTON, Circuit Judges. '

PER CURIAM.

These causes involve a question of fact only, and the solution of that question depends ultimately on one inquiry, viz.: Where was the Westfield when the Clermont was in the act of emerging from her slip? Reconciliation of all the evidence on this point is, we think, impossible. There was direct and positive testimony that at the moment above indicated the Westfield was so far downstream that she must have become the overtaking vessel long before collision. This evidence an experienced trial judge believed, after seeing -and hearing witnesses. ■ ■

We are not disposed to disturb that finding, and direct that the decrees appealed from be affirmed, with costs.

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