Page:Federal Reporter, 1st Series, Volume 3.djvu/45

 38 FEDERAL REPORTER. �brougM tip upon her etern, and that the presence of the lighter was the immediate, unexpeeted and unavoidable cause of the accident that followed. But the storm was upon them bef ore the lighter came. The delay in making fast the haw- ser, caused by the lighter, was but slight, and the weight of the lighter herself not great. The master of the Gunn had no right to calculate so closely in such a case. Some little delay in getting fast should have been allowed for. As it was, it is doubtful if the bark would have been fast in time had the lighter not been there at ail. In regard to the suit of the Carmelita Eocca, it is to be remarked that the claim is not that the Gunn injured her by breaking adrift, but by causing her to break adrift. The answer made to this, on behalf of the Gunn, is that the master of the Gunn, in fast- ening to the Carmelita Eocca, was actuated by a sense of peril, and the act may, therefore, be excused. His perturba- tion "carrieth a privilege," it is said. But the difSculty is that he had no right, with his eyes open, to put himself in a place where he must necessarily be perturbed. Having plaeed himself where he must take the risk of dragging the Carmelita Eocca from her moorings, or suffer greater danger himself, he must bear the lesser loss that arose from his effort to avoid the greater one. He attempted a dangerous maneuver, and failed in the attempt. �My conclusion, therefore, is that the owner of the canal- boat is entitled to recover of the Gunn the damage caused to the canal-boat by the striking upon her of the Gunn and the Carmelita Eocca, and that the owner of the Carmelita Eocca is entitled to recover of the bark Gunn the damage sustained by her by reason of her being carried from her moorings by the Gunn. I am not able to see that the Carmelita Eocca ia responsible to the owner of the canal-boat in any amount, for the evidence fails to show that her Unes were insufSeient ; and as to having the anchor hanging, viz., so that it caught the canal-boat, this was no fault under the circumstances, for on dire occasion it was the first duty of the Carmelita Eocca to make herself fast, and she had no time to seeure her anchor before she was carried adrift. There will, there* ����