(after stating the 'facts as above). The pleadings herein give no indication of the ease that was actually tried. Libelant sued upon a breach of an alleged contract to return this chartered vessel in the same order and condition, in which she was received, ordinary wear and tear excepted, and no such contract was proven. Therefore respondent, as charterer, was liable for negligence only, and the burden was upon libelant to prove it. Harms v. Upper Hudson Co., 234 F. 859, 148 C. C. A. 457; Schoonmaker v. Lambert (C. C. A.) 268 F. 102.
The evidence given as to soundings around the barge as she lay sunk proves too much, for we take cognizance of the fact revealed to common knowledge by' the tide tables that the difference between high and low water in such a place as the Dutch Kills is slightly less than 5 feet; so we cannot place any confidence in these soundings, for if they are correct the Bull could not have gotten into the position where she was at full high tide, yet she undoubtedly got there without difficulty, and lay peacefully discharging her cargo for several hours before low water.
The libelant, through its master, was responsible for the maintenance and care of the Bull’s lines, and, if the “ridge of mud” of which the master was warned had anything to do with this accident, libel-ant is responsible for not having obeyed the admonitions of the wharfinger’s agent. Morey v. New Rochelle, 254 F. 425, 166 C. C. A. 57. It is enough to conclude that libelant wholly failed to show by a fair preponderance of evidence any negligence on the part of respondent. The ease would have been clearer and much easier to try, had the libel even faintly responded to what the libelant was prepared to prove.
Decree affirmed, with costs.
LEARNED HAND, District Judge, dissents.