Page:Federal Reporter, 1st Series, Volume 3.djvu/655

 6e8 FEDERAL REPORTBR. �louer she got the more water she would take in; and al- though the captain of the tug did ail lie could to get her iiito a dock in the East river, where she could be beached, he was unable to do so before she sunk. �Under the rule laid down in the case of The Wm. Murtagh, therefore, both parties are chargeable with want of ordinary care for making the attempt to cross the bay with an open loaded boat in a gale of wind. Slight differences of circum- etance will not sujB&ce to distinguish the case, and the loss is immediately attributable to this as the direct and principal cause of the disaster. �It is claimed, however, on the part of the libellant that he should not be charged with half the loss for two reasons: First, on the ground that the barge was put on the windward side of the tug, where she was more exposed to the wind and sea than she would bave been on the other side ; and, secondly, because the master of the tug did not, when they got out in the bay, and found how dangerous the passage was, run before the wind, go to the south of Governor's island,and find shelter in Buttermilk channel. The first point is sought to be supported by the testimony of the libellant that he objected to being placed on the port side of the tug ; and the second point, by bis testimony that when near Oyster island buoy he requested the master of the tug to run before the wind to avoid swamping bis barge. �As to both these statements of the libellant, he is, I think, so contradicted that they cannot be taken as proved. As to his request to run before the wind, which he says was twice made and answered by the master of the tug, not only is the proôf to the contrary very strong, but the circumstances, and the proved conduct and language of the libellant at other points, render it highly improbable. When the master of the tug, long after this alleged request, hailed him and told him he thought his barge was sinking, he answered that he hoped not. He evidently had not discovered the fact, and at first would not believe it, till he went and looked over the side. Up to that time his pump had brought but little water and had soon sucked; and in answer to the pilot's bail, "How is ����