Page:Federal Reporter, 1st Series, Volume 3.djvu/413

 406 fi 'MiiltuiT. BEFOBTEB» �The libellant charges the tug with a want of due care, among other things, in leaving the stakes and attempting to cross the bay of New York with such a wind blowing, and with the libellant's boat in the condition in which it was with respect to its open hatohes and deck. The tug charges that the loss ■was occasioned wholly by the unseaworthy condition of the barge, in having its hatches uncovered, and in having the fine coal on its deck, above and around its hatches, which is claimed to have absorbed and held the water bo as to greatly increase the weight of the cargo and to prevent the pumps from clear- ing her of the water that she shipped. Other faults are charged against the tug : having too heavy a tow for her to manage, not seeking a place of safety when she reached the can-buoy and found it dangerous to proceed, and starting so early that she reached the can-buoy so long before the change of tide from ebb to flood that the tow was exposed for an un- necessary length of time to the. rough water at that part of her passage. These other grounds of complaint I do not think, upon the evidence, are fairly made eut. �The question of the responsibility for the damage caused by taking in water through the open hatches is a very impor- tant one both to tugs and tows. It is claimed on behalf of the tug that the day was suitable for her to attempt the voy- age with her tow ; that the wind was not high enough to sug- gest to the pilot of the tug, or to the captains of the boats in the tow, any peril to the tow in crossing the bay. It appears in the case that several other tows crossed the bay that day, some of them with loaded boats without hatch coverings. And it is argued that it was, at most, an error of judgment, and not a want of ordinary care, for the pilot of this tug to venture on the voyage on that day. But the fact that other open boats were safely towed across the bay on that day has little or no tendency to show that it was consistent with the exercise of ordinary care on the part of this pilot to attempt the passage with this boat. The rules of navigation prescrib- ing the degree of care and diligence on the part of those charged with the responsibility for property on the sea are ����