Page:Federal Reporter, 1st Series, Volume 3.djvu/414

 MASON V. STEAM-TUG WILLIAM MUHTAUGH. 407 �not framed merely to guard property against loss or damage that is probable, but against injury and loss which, though improbable, may, in the exercise of proper skill, be foreseen as possible, and which, by the exercise of care and prudence, may be guarded against or avoided. Thus, fifty stearnships may run at fuU speed through a dense fog without disaster,, yet if the fifty-first comes into collision with another vessel it would be no answer to the charge of negligence that the fifty did the same thing safely. �The question of ordinary care is not to be determined by the numerical chances of disaster upon a given state of facts. So, it is no argument against the claim of this libellant that many other open loaded boats crossed the bay in safety that •day, or that many other pilots of tugs took out similar tows. The test is not what other men do with their own property under the like circumstances, but what would a prudent owner do. There are thousands of men in the community who take risks with their own property, and with the property of other people entrusted to them, which are inconsistent with this rule of diligence enforced by the courts as the test of responsi- bility. The question in every case is one for the court to decide on the particular circumstances, whether the degree of care, caution, and diligence bas been used which the rule requires;, and I bave no difficulty whatever in coming to the -conclusion that there is a want of that ordinary care which a prudent owner would exercise in the care of his own prop- erty for a tug to attempt to cross the bay of New York with a loaded beat without hatch covers, with the wind and sea aa they were shown to be that day. �There was nothing in the state of the wind or of the sea on the bay which was not fairly within the knowledge or apprehen- sion of the pilot when he left the stakes with his tow. Pilots of tugs must clearly be held to be f uUy aware of the effects of the wind on the waters of the bay. This boat was not ex- posed to the action of the rough water of the bay more than half an hour, yet the waves were high enough in that time to awamp her, in the condition in which she was; and there is ����