Page:Federal Reporter, 1st Series, Volume 6.djvu/414

 402 FEDERAIiCEPOIiTER. �ihat he was offered a Une froni the Behera, wlien struggling to get in, and had become jammed; nor to what is said respecting a promise to "breast over." �But admitting the propriety of entering, the evidence still does not, in my judgment, sustainthe libellant's claim to compensation, for his loss. The burden of proof rests upon him. He muat show that the respondent could have kept off. The evidence not only does not do this, but, in my judgment, shows the contrary. I think it proves, with rea- -sonable certainty, that the Behera was aground, from the time she entered until she left. The witneases from aboard her, who alone eau speak with certainty, ail testify she was. The master of her tug says she was dragged in on the mud; and this was at high water. What the libellant's witnesses say respecting it, is little, if any, more than conjecture. They, generally, judge she was afloat, because they "pried her over" in pushing the barge in. It seems more probable that their effort to do this forced the Curtis (she being light) away. Although the latter vessel is said to have been moored close to the pier, it is not probable she was so close fis to prevent the movement suggested. Again : the Behera's •draft, forward, was 20 feet. The dock, according to the owner's testimony, had a depth when cleaned out, a few months before, of 21 to 24 feetj at high water. It would not be safe to put it above the lower of these figures ; and this would be correct only when applied to the center, and parts mentioned by the assessor. Allowing for the ordinary accu- mulation of mud, with the increase produced by the sewer <iischarged where the ship lay, it is quite reasonable to be- lieve that the depth there at high water, was less than the Behera's draft. �That the Behera had a "list" towards the Curtis, almost irom the time of entering, is dear. The libellant's witnesses .agree she had when the tide was down. When it was up she would straighten, until nearly even, and settle over as the water lowered. That sueh would be her position and action, when aground at the side pf the channel, might reasonably X)& expeeted. The shelving bank at the side of the dock. ��� �