Page:Federal Reporter, 1st Series, Volume 9.djvu/542

. THE MECHANia. ,. 527- �tothe efEect that the tugs couM safely haya returnedto the tpwbefore the stonn reached its height; that the cleats on the platform were insufflcient, defective, and rotten; and that the breaking of these cleats caused the loss, Bespondents' testimony was to the efEect that the violence of the storm was such as to prevent the tugs from imraedlately returning to the tow; that the cleats were properly constructed and in good condition, and had been recently inspected; and that the loss was due to the extraordinary violence o£ the storm. �Edward F. Pugh, for libellants. �Alfred Driver, Henry B. Edmunds, and J. Wairen Coidston, for rospondents. �BxjTiiER, D. J. The storm and flood in which the boats were lost are, of themselves, quite sufficient to account for the disaster. The loss must, therefore, be assigned to this cause, alone, unless con. tributory negligence be shown. The libellants charge snch negli- gence, and specify three distinct instances in wbich they say it existed: First, in making up the tow; second, in being absent from it when danger threatened; and, third, in mooring the tow to a float in imperfoct condition. The burden of proof is on the libellants. �I find nothing to justify the first specification; the tow was made up according to common usage* This point, indeed, was virtually abandoned on the argument. Nor do Ifind anything to justify th© second specification. The, boats were securely moored in a, safe harbor, — where no danger had ever been experienced, and where, therefore, none could reasonably be expected. The respoudents, hav- ing occasion to be temporarily absent, left the tow, in pursuance of qniform custom. When the storm camie, or increased in violence, and the water rose, so as to create appreheinsion of danger, it was their duty to return, and make all proper efforts tp sa ve the beats. The evidence, however, justifies a belief that to return at this time was virtually impracticable. The suddenness and violence of the storm, and the darkness of the night, rendered such an efl'ort unnec- essarily hazardous, if not futile. Although the evidence is not har- monious, its preponderating weight sustains this view. I am by no means satisfied, however, that the respondents' absence contributed to the disaster, It seems quite probable that the resalt would have been the same if they had been present. The libellants, who were on the boats, saw no cause of alarm until the crisis was imminent, when nothing effective could be done. An increase of attachments to the float would probably have been useless. If the attachments had held fast it is reasonable to believe — (as the libellants' witness Malloy asserts) that the force of the wind, and current in the river, ��� �