
    THE ROBERT BURNETT. LEHIGH COAL & NAV. CO. v. THE ROBERT BURNETT.
    (District Court, S. D. New York.
    May 8, 1893.)
    Togs and Tows — Seeking Harbor in Threatening Weather — Neoessarv Allegations of Libel — Proof.
    In order to hold a tug liable for negligence in losing her tow, because, in threatening weather, she passed a safe harbor to go to one which she knew she could not enter except under favorable conditions, such fault must be alleged in the libel, and the threatening nature of the weather at the time of passing the, safe harbor proved. Where a tug of proper draft for the service, passed Huntington harbor, in Long Island sound, and attempted to enter the Missiquog river, on whose bar the depth of water varies according to the state of wind and tide, and, being unable to do so, turned back for Huntington harbor, as is customary under such circumstances, and on her return lost part of her tow in the increasing sea, and it was not alleged in the libel, or proved, that on first passing I-Iuntington harbor the weather was so threatening that she should then have sought shelter, held, that her negligence was not proved, sufficient to hold her liable for the loss:
    In Admiralty. . Libel for negligence of tug in losing part of ber tow.
    Dismissed.
    Wing, Shoudy & Putnam, for libe] ants.
    Stewart & Macklin, for claimants.
   BROWN, District Judge.

On tbe 31st August, 1892, tbe steam tug Robert Burnett took in charge 10 chunkers loaded with coal, to tow them to St. Johnland, reached by a small narrow river, Missi-quog, about 10 miles beyond Huntington on Long Island sound. Tbe •tow was in two tiers of five chunkers each, upon a hawser of about -60 or 70 fathoms. She left at about 11 P. M. and arrived at tbe bar of -the river at about 4 o’clock the' following afternoon. Tbe water on the bar is shallow, and tbe channel shifting, through the ■operation of winds and tides; and tbe depth of water varies with the conditions of the wind and tide. The chunkers drew 6 feet; the tug, 7 feet 2 inches. On arrival, with the aid of a local pilot, who ■was called in accordance with the usual practice, it was found that there was only 6^- feet of water at high tide. Huntington was the nearest and only safe place to go to, and the tug, after finding- that entrance was impossible, turned around to go back to Huntington. ■The wind and sea on the return became such that the chunkers of-the head tier -were filled with water, and one after another were '■Sunk, or beached by the tug, -before arriving at Huntington. The ■libel is-filed to recover-damage's, alleging unfitness of the tug, incompetence of (lie master, and negligence in not liaving a.helper, and in turning Rack. Xo oilier faults are alleged.

. The proofs do not sustain any of the charges of negligence. The Barnett drew somewhat less water than the tugs customarily employed in taking barges into the Missiquog river. The uncertainties of entrance there must have been well known to all concerned. The practice was to go to the bar and cross it at high tide if there was sufficient waiter; if not, to return to Huntington. The Burnett pursued this practice, and cannot he charged with fault if she was navigated with all reasonable caution and skill in accordance with this general practice, unless there were special conditions of wind or weather which made a departure from the usual course reasonably necessary. At the close of the case it: was contended, that at about 12 o’clock noon, when the tng and tew passed Huntington, there was so fresh a wind from the northwest that it must have been reasonably apparent, to the pilot of the tug that such a tow of chunkers could nol safely be brought back to Huntington in case no entrance could be effected on arrival at the Missi-quog river; and that he was therefore bound to put in at Huntington, instead of pursuing the usual practice of going on to try the waiter at Ft. Jolmland. The northwest wind itself would be no obstacle to entrama' as usual.

The chunkers have a freeboard of only about 20 inches. They were plainly unfit to head much sea in the Found; and if the faults smted had been charged in the libel, and 1 was satisfied upon the evidence that ¡here was such unpromising weather at the time, of passing Huntington that the entire safety of the fleet would depend upon the chance of: crossing the bar and getting into the river, 1 should bold the tug blamable. Bouker v. Smith, 40 Fed. Rep. 839. ICnowing the uncertainties that attended the entrance to that bar, the pilot of the tug would hare no right t,o risk the entire safety of ilse chunkers on the single chance of entrance on arrival, when it was apparent that if lie could not cross the bar, he could not expect to get back. It was not an uncommon thing for such tows to find Hie water too low, and be obliged to rid urn to Huntington in consequence.

The evidence on the part of ¡lie tug, however, is that there were no such indications in the condition of tin wind and weather at the time of passing Huntington. Some of the libelant’s witnesses confirm the testimony for ibe tug in that, respect, and such r ala satisfied was the fact. Xo such charge is contained in the libel, and this contention appears for the first time at the close of the case. All the faults alleged in the libel being disproved, the libel must be dismissed, with costs.  