Page:Federal Reporter, 1st Series, Volume 10.djvu/778

 766 FEDERAL REPORTER. �and was then left. Before she could be got off the bar her bottom broke out at a point on tiie port aide, and she filled, This action is brought against the tug to recover the loss sustained by the owner of the canal-boat by reason of this disaster. �The first question presented is whether the stranding of the canal- boat upon the bar was caused by negligence on the part of the tug. Upon this question my conclusion is that it was so caused. It is no answer for the tug to say that the canal-boat was with difficulty kept in the channel, because the two towing hawsers were of unequal length, owing to the absence of a cleat on one side of the canal-boat. The pilot of the tug knew when he commenced to tow the canal- boat how the hawsers were fastened, and if they were so made fast as to be in fact of unequal length, he became ehargeable with the duty of exercising sufficient care and skill to keep the boat in channel in spite of any difficulty created by the method in which the hawsers were made fast. �The stranding of the canal-boat being found to have been caused by negligence on the part of the tug, the next question presented by the testimony is whether the injuries sustained by the canal-boat wjiile on the bar are to be attributed to the stranding, or to the old and rotten condition of the boat. Here the contention on the part of the tug is that the canal-boat was not injured by striking the bar ; that the character of the bar was such that the boat, if seaworthy, could have lain upon it for a long time without injury ; and that the breaking down of the boat's bottom was owing solely to her unsea- worthy condition. On the other hand, it is contended in behalf of the canal-boat that the boat was seaworthy, and that the stranding occurred at a place where there was a depression or hole of consid- erable dimensions in the surface of the bar over which the boat grounded, and into which, she being loaded, a part of her bottom fell when the tide went out, because deprived at that point of any support, either of land or water. Upon this issue the burden is upon the tug. Having negligently stranded the canal-boat she must pay for the injuries sustained by the boat while so stranded, unless she can make it clear that such injuries would not have been sustained if the canal-boat had been seaworthy. �Upon the evidence there can be no doubt that the bottom of the canal-boat gave way, at a point where it was left without support, because of a hole or depression in the bar over which the boat grounded, and the evidence warrants the inferenee that the bottom would not have given way if it had not been for this hole. Much ��� �