Page:Federal Reporter, 1st Series, Volume 5.djvu/648

 636 FEDERAL REPORTER. �starboard. On passing they went so near and at such speed as to create a swelly which broke over the scow and caused her to roU so that she dumped ail the chalk into the river. Thers'was room for the steamers to have passed at a greater distance, and they might have reduced their speed, in either of which cases the swell would not have been dangerous. �In addition to these facts the libellant claima to have shown that the hatch covers on the scow were insecurely fastened, and by reason thereof when the swell struck the scow the covers were washed off the hatohes, and so a quantity of water was allowed to go into the hold, which by its presence in- creased the rolling of the scow and was the immediate cause of the loss of the chalk. But 1 am unable to find such a state of facts. The hatch covers were washed off by the swell and water went below; but the evidence will not justify the con- clusion that the water taken in through the hatches conduced in any considerable degree to the loss of the chalk. There is no good reason to doubt that the chalk would have been lost ail the same if the hatch covers had not been washed off. �Neither am I able to conclude that there was any negli- gence in the management of the tug. She ^^as where she had a right to be ; was moving at half speed ; did ail that she could to warn the steamers, and ail that she could to mitigàte the effect of the swell which the steamers raised. �The case, therefore, presents the question whether, in the absence of any negligence on the part of the defendant or his agents, he is liable for the chalk lost in the manner described. If the relation of the defendant to this cargo was that of a common carrier, his liability cannot well be disputed ; for he made an unqualified contract to safely transport and deliver the cargo in question. The non-performance by a common carrier of his contract can only be excused by showing that the loss arose from the act of God or of the public enemy. The swell that overwhelmed the defendant's scow was not the effect of storm or tempest ; it was not an act of nature — it was the act of man ; namely, of those who were navigating the steamers, and who by their method of navigation raised a swell at this point that it was not possible for the scow to ����