Opinion
No. 1702-KA.
March 20, 1934.
W.C. Arnold, of Ketchikan, for libelant.
G.W. Folta, Asst. U.S. Atty., of Juneau, for the United States.
The court has heard and considered the evidence on the question of liability in this case and the argument of counsel on respondent's motion to dismiss, and finds therefrom:
That the libelant has failed to establish any liability on the part of the respondent.
The libelant has advanced several theories as to how this collision may have occurred, but each of these theories is based wholly or partially on approximations and assumptions not supported by the evidence.
It is not within the province of this court to theorize or speculate on what caused the collision. The law requires that the libelant prove his case by a preponderance of the evidence. This we feel he has utterly failed to do. Both the charting of the courses as shown by the exhibits, and the testimony of the captain and quartermaster in charge of the navigation of the Tuscan from the time the Penguin came in sight until after the collision wholly fail to establish any liability on the part of the Penguin.
The practically undisputed testimony shows that the Penguin promptly rendered every aid and assistance to the disabled Tuscan immediately following the collision and brought her into port, or nearly so, and turned her safely over to the salvage boat Akutan.
The motion will therefore be granted, and the libel ordered dismissed with prejudice. Findings and judgment may be prepared in accordance with this opinion.