Page:Federal Reporter, 1st Series, Volume 3.djvu/416

 MABON V. STEAU-TUa WILLUM MDBTAUflH. 409 �upon the voyage ; and, in many cases of the loss of the boat towed upon the voyage, the tug bas been absolved from re. sponsibility because of the unseaworthiness of the tow, and her inability, by reason of weaknesa and decay, or of leaks, to bear the voyage; but there is an obvions distinction be- tween defeets or unfitness for the voyage, which can be seen and must be appreciated, upon the most caaual inspection of the boat, and such as cannot be so seen. If the unfitness consists in what is perfectly obvious to the pHot of the tug when he takes the boat in tow, then clearly the tug undertakes to use a degree of care measured according to the obvious condition of the boat. If the unfitness is not thus obvious, he undertakes only for that degree of care which is proper and necessary for the management of a sound and seaworthy boat, as she is presumed to be ; and to hold the tug liable for her loss arising from her unknown defeots, in such a case, would be grossly unjust, and would enourage fraud and de- ceit. But the unfitness in the present case was obvious, and known to the pilot of the tug when he took the boat in tow. She was loaded, and had no hatch covers, and this was too obvious to escape his attention. Indeed, the proof is that he knew the fact. Therefore, he was bound not to tow her across the bay, in that condition, in the state of wind and tide exist- �ing- �The pilot of the tug, or whoever on its behalf makes up the tow, and decides when and under what circumstances of wind and weather the voyage is to be made, assumed to determine these questions for the boats in the tow, with the ordinary care of a prudent ownerin dealing with his own property, and in thia respect those having control of this tug failed to exercise that degree of care and diligence. It was not, as suggested, merely an error in judgment in choosing between two possible courses. It was negligence, which makes the tug liable for the ensuing damage. The question still remains, however, whether the master and owner of the boat towed was not also chargeable with negligence that contributed to the loss, in that he permitted his boat to be taken out in an unauitable state of the wind and weather. ����