Page:Federal Reporter, 1st Series, Volume 6.djvu/416

 404 • FEDERAL REPORTBB. �was the careening or "listing" of the Behera, I am fully con- vinced. That thia careening could not be prevented is clear. There was no force at command sufficient to overcome the combined weight of the vessel and cargo, as she went over from the bank, with the reoeding tide. Had the cables been so tant as to allow of no motion without something giving way, something would have given way, — posts, cables, bits or side of vessel. I do not find anything to justify a belief that the officers of the Behera were guilty of any fault, contrib- uting to the disaster. They, as well as the crew, swear she was as close to the pier as she could go; and no one can safely assert that she was not. What the libellant's witnesses say on the subject seems to be little more than guessing. In the absence of direct evidence, the presumption would be that she would go as near as she could, on entering. It Was her interest to do so, as she intended discharging there. The circumstance that she did not get near enough to discharge, and was compelled to go elsewhere for this purpose, is per- suasive' evidence to the same effect. ' ■ �The libellant's losa must, therefore, be regarded as the con- sequence, alone, of his own impirudence in entering the dock, under the circtimstanoes, or of remaining there so long. It is proper to say that even if the Behera had floated at high water, and might conaequently have been moored doser for a time, the resuit, in my judgment, must have been the same. So soon as the ship touched the bottom she would hav© 6lid ofi in the mud, and careening over, have crashed the barge. That she would have touohed bottom before the timeat which the disaster occurred, — if afloat at high water, — I have no doubt. The tide had then been running down for over an hour and must have fallen two feet. �The answer to Captain Hewitt to whom, as assessor, inter- rogatories were addressed, will be filed herewith. �The court addressed to an assessor called as a nautical ex- pert interrogatories which with the answera thereto were as follows : �First. Supposing the statements of the libellant and Mr. ��� �