Page:Federal Reporter, 1st Series, Volume 10.djvu/779

 THE YIGILANT. 767 �conflic'ing testimony bas lieen given in regard to the condition of the boat's bottom, but the weight of it, as I think, warrants the condu- &ion that the boat's bottom was strong enough to have supported the cargo in safety if it had uot been for the existence of the hole or depression in the bar acroas which the boat lay. The direct evidence upon this point is confirmed by the undisputed fact that a short time before this the boat lay in safety aground at Thorne's wharf, a place, according to the claimant's witnesses, more trying to a canal-boat than the bar on which she stranded, and that on this occasion she was expecting to lie at the same wharf. My conclusion, therefore, is that the injuries sustained by the boat arose from the character of the bottom where she stranded, and not from her unseaworthy con- dition. �A question bas been made as to the cause of the hole in the bar^ and witnesses have been called in belialf of the tug who express the opinion that the depression into which the boat's bottom fell was caused by water running out of the boat when the tide went out, and washing away the soft bottom underneath. But this view rests solely upon opinion. No witness is called who says that he saw the mak- ing of the hole, nor does any witness testify that there was no such hole in the bar when the boat grounded. On the contrary, the master of the canal-boat testifies that as soon as the tug left. him he felt around bis boat with a pole to see what bottom he was on, and then found this hole, and at once jumped into a boat to inform bis con- signee that the boat would iill upon the bar ; and he further testifies that when, shortly after, he returned to the boat with the consignee, the bottom had burst over the hole in the bar. In this the master is corroborated by the consignee, who, being called by the claimant, says he was there on the llth, and saw the hole and a timber broken down over it. It does not appear to be very probable that such a hole could be made in so short a time by water running out of the boat. And, besides, there is a failure of evidence to show that there was any considerable amount of water in the boat. The opinions of the claimant's witnesses do, however, show that it is not improb- able that such a hole might have been made in the bar by currents, tides, or even passing vessels, and renders credible the positive testi- mony of the master of the canal-boat that the hole was there when he grounded. I am unable, therefore, to find that the hole in the bar is attributable to water running out of the canal-boat. �But if the fact be that soon after the canal-boat grounded water ran out of her in sufficient quantity to make the hole in the bar where the ��� �