(after stating the facts as above). [1] If the displacement waves of the Irving had not disturbed the smooth surface of the river, we cannot doubt that no damage would have occurred, when and where it did. That the action of the passing steamer solely caused the injury, was duly found below; and the only question argued here was whether any fault on the tug’s. part contributed thereto. Our investigation of the record persuades us that there was evidence tending to support a conclusion of contributory fault on the steamer’s part, and (in the absence of argument on any other point) we shall consider further only the question whether the poor hawsers of the Ronan (if they were bad) contributed to injury.
[2] That inferiority and unfitness existed a majority of this court deems fully established, and that such unfitness contributed is a fact deducible from the following considerations: What injured the Percy was jumping and pounding on the boat ahead; keeping a strain on the towing hawser does not always prevent, but minimizes, that conduct of a tow in a seaway; these towing hawsers broke first in swells large enough to cause jumping, and direct evidence shows inferior condition. It is possible that, had the hawsers held, there would have been damage; also that good hawsers might not have held. But towing with worn or inferior lines, in waters where wave disturbance is usual, indicates negligence, and, where damage occurs, requires the negligent one to shov that his carelessness did not contribute. This is not and cannot he dine here.
