Page:Federal Reporter, 1st Series, Volume 3.djvu/415

 408 PBDEEAIi EEPORTER. �no proof of a sudden or unexpected increaae in the wind or sea which might excuse the tug. It is said that a custom bas grown up of using boats and barges, in the coal trade, with what may be called, substantially, an open deck, — that is, without anydeck except anarrow planking along the sides of the boat, and a short deck at the two ends, — and that thia custom has grown out of the desire to save expanse in trim- ming the boat if the cargo is put on board at hatches. �It is said, also, that although a boat so constructed can have, and sometimes has, a series of hatch covers, covering the entire opening in the deck, yet the practice has been to use sueh boats without any covering, as well as to use decked boats without any hatch coverings, in the carriage of coal between the coal ports of New Jersey and New York across the bay. It is claimed that this practice justifies tugs in tak- ing these open boats to tow across the bay even in winter time and through rough water, and that to hold the tug lia- ble in such a case will very injuriously affect the business of the tow-boats. I do not perceive that such a practice can affect the question. Many practices grow up in the naviga- tion of the seas, and gain more or less acquiescenee, partly from motives of self-interest, and partly from a supposed necessity of conforming one's business action to what others do under similar circumstances in the competition for em- ployment; but such practices, if inconsistent with the stand- ard of care and prudence which the courts of admiralty steadily adhere to for the preservation of life and property, can receive no countenance from the courts. �It is, however, still insisted that the tug is not responsible for the loss of this boat because she was lost from the direct consequence of her want of hatch covers; that she was, for this reason, unseaworthy, and that a tug is not liable if the loss happens from the unseaworthiness of the boat taken in tow. It is undoubtedly true that a master of a boat, offering his boat to be towed, represents her as seaworthy, or fit for the voyage, and sufficiently strong, staunch, and sound to meet and withstand the ordinary perils to be encountered ����