Page:Federal Reporter, 1st Series, Volume 8.djvu/302

 288 FBDEEAL BEPOBTBR. �had been stowed on deck by the master without the authority of the owners or of an established usage. ; �I understand it to be usual in the port of New Orleans, as in other ports, to maintain no watch upon a vessel with an ordinary cargo, such as cotton, when she bas been fully loaded and is lying at a wharf. Unless there are some peculiarly valuable goods, easily stolen, ordinary care, as in fact exereised, does not require a watch to \)e kept. It is, however, usual to close the hatehes of vessels at night, and one of the hatehes of this vessel was left open. The question, therefore, is whether this was such negligence as will charge the mas- ter and owners with the loss. �The master is the only witness examined who was on board the ship. He is of the opinion that the fire was set by an incendiary, and he gives Bome reasons for this conclusion. If this be so, then the open hatch may have tempted or aided the commission of the crime. Such is the argument. �The negligence is not made out. It does not appear to me that a vessel with two men asleep on her deck, and one in her cabin, is likely to have been set on fire; nor that it would have been safer to stow the hatehes and leave the ship with no one on board. I do not understand that hatehes are necessarily or usually fastened for the night so securely that an incendiary would have the least difficulty in prying them open; or that it is at all probable that the state of the hatehes could be observed at night, and have tempted a stroller. If it was so light that the hatehes could be seen, I suppose the men lying on the forward bouse could be seen. That a clerk sleeps in a shop is eonsidered by underwriters a great protection against thieves and incendiaries, and so it is on board ship, I suppose. �The information whieh we have of the causes and circumstances of the fire is meager, but this does not shift the burden of proof. The defendants are to make out negligence. The master tells us what his orders and dispositions were ; whether they were carried out I do not know. It may be that the mate and both the men left the ship, or one of them may have s(t the fire; but there is no proof of any of these things. If the m ister's orders were reason- ably prudent, and there is no evidence that they were not obeyed, an<i he was not negligent in sleeping on shore himself, the defence fails. �Decree for the eomplainants. ��� �