Brigham v. Cornell Steamboat Co.

HOUGH, Circuit Judge (after stating the facts as above). To permit recovery by tow from tug in this, the ordinary assertion of tower’s liability, the tow must bear the burden of affirmatively showing that the injury received was proximately caused by some act or omission of the tug, inconsistent with that reasonable care and skill impliedly promised when the towage contract concluded. That proof of negligence is often reached by inferences or presumptions from the facts proved is not opposed to the foregoing always applicable rule of law. The one fact here proved is that, after mooring the first tow in a manner not criticised or complained of by any material and persuasive evidence, the second tow was added thereto. It is quite true that the duty of a towing tug is not fulfilled until the tow is safely moored (The May Queen [C. C. A.] 298 F. 95), and equally true that mooring places customarily used, and mooring fasts thought sufficient have been proven unsafe and insufficient when some reasonably to be expected additional danger arose. The most appropriate instance for this case is that where, on the turn of the tide, the strain on the mooring lines is too great. Where that danger appears when the tide turns, the natural inference is that the fasts were weak or ill placed, because the effect of the tide turn is to be expected and must be provided for. Hughes v. Penna. R. R. (D. C.) 93 F. 510. And the rule and resulting inference is the same when the insufficiency developed after additional boats had been attached to the moored tow. Penna. R. R. v. McWilliams (C. C. A.) 277 F. 798; McWilliams v. Davis (C. C. A.) 285 F. 312. But even in these cases of promptly appearing insufficiency, if it be affirmatively shown that the bargees chose and arranged the lines, the tug may be discharged. McWilliams v. P. & R. R. Co. (C. C. A.) 203 F. 859. In the present instance, however, there is no proof at all of poor, insufficient, or badly placed lines in the first instance, and it is admitted that t)ie whole flotilla safely lay over at least four changes of tide in calía weather. The reasonable inference from this fact is that the lines, proper and sufficient in the first place, were not watched and renewed or replaced by the crews of the barges. Against carelessness or lack of skill of that kind the towing master did not contract. Decree reversed, with costs, and cause remanded, with directions to dismiss the libel, with costs.