The Mechanic

9 F. 526, 1881 U.S. Dist. LEXIS 210

• Court: District Court, E.D. Pennsylvania
• Decided: November 9, 1881
• Status: Published

Opinion

Butler, 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 contributory negligence be shown. The libellants charge such negligence, and specify three distinct instances in which 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 imperfect 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 I find anything to justify the 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 respondents, having occasion to be temporarily absent, left the tow, in pursuance of uniform custom. When the storm came, or increased in violence, and the water rose, so as to create apprehension of danger, it was their duty to return, and make all proper efforts to save the boats. 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 effort unnecessarily hazardous, if not futile. Although the evidence is not harmonious, 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 result would have been the same if they had been present. The libellants, who wore 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, would have swept the float, and everything connected with it, away. That a few boats remained fast, does not tend to prove that the entire tow might thus have been saved. The enormous strain of so many loaded boats, under the force of the storm and flood, must have been virtually irresistible. Nor is it probable the tugs could have held them, or rendered any essential aid, by taking the hawsers. The attempt made by this means, directly after the attachments to the float gave way, failed. The tugs could do little more than save themselves.

As respects the third specification, (principally relied upon by the libellants,) the witnesses who speak directly to the point are in serious conflict, — those called by the libellants saying that the logs and cleats were rotten and unsafe, and those called by the respondents saying they were sound and secure. Viewed in the light of this direct testimony alone, the fact would be in doubt. Considering the opportunity of the several witnesses to see and judge, it could not be said that the weight of evidence is with the libellants. Viewed in the light of surrounding circumstances, also, — the overhauling of the float some months before the accident, and the slight repairs required after this event, and the more significant fact that the tow was held for a considerable time under great pressure, and broke away only when the storm and flood had reached their height, — the decided weight of the evidence seems to be with the respondents.

No debatable question of law is involved in the case. The respondents were bound to the observance of such vigilance and care as the safety of the boats called for, under existing circumstances. They could not anticipate such a contingency as arose, and were not, therefore, required to prepare for it. It was not only extraordinary, but, so far as the witnesses know, unprecedented. Under ordinary circumstances, — in such weather as the respondents were justified in expecting, — the boats would have been entirely secure. When the extraordinary emergency arose no adequate provision for it was practicable.

Unfortunate as the libellants have been, they have no just claim on the respondents for compensation. The libels must, therefore, be dismissed, with costs.