Unbeknownst to those in the harbor responding to the

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pier down the North River. Unbeknownst to those in the harbor responding to the problem, the tanker’s propeller broke a hole in the Anna C at or near her bottom. She careened, dumped her cargo of flour belonging to the United States, and sank. The United States sought compensation for the flour and Connors Co. sought compensation for the barge. Carroll Towing Co. argued that the barge could have been kept afloat and her cargo saved if it had been known that she had been damaged by the propeller, but because her barge had gone ashore, there was no one on board to observe that she was leaking. The admiralty trial court divided the damages, according to the ad- miralty rule of comparative negligence, because it found Connors Co. partly responsible for the loss of the cargo and for the sinking of the barge in not having a custodian on board the barge at the time. Connors Co. appealed] LEARNED HAND, Circuit Judge. [1] It appears from the foregoing review that there is no general rule to determine when the absence of a barge or other attendant will make the owner of the barge liable for injuries to other vessels if she breaks away from her moorings. However, in any cases where he would be so liable for injuries to others obviously he must reduce his damages proportionately, if the injury is to his own barge. It becomes apparent why there can be no such general rule, when we consider the grounds for such a liability. Since there are occasions when every vessel will break from her moorings, and since, if she does, she becomes a menace to those about her; the owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B less than PL. [2] Applied to the situation at bar, the likelihood that a barge will break from her fasts and the damage she will do, vary with the place and time; for example, if a storm threatens, the dan- ger is greater; so it is, if she is in a crowded harbor where moored barges are constantly being shifted about. On the other hand, the barge must not be the barge’s prison, even though he lives aboard; he must go ashore at times. We need not say whether, even in such crowded waters as New York Harbor a barge must be aboard at night at all; it may be that the custom is otherwise, as Ward, J., supposed in ‘The Kathryn B. Guinan,’ supra; and that, if so, the situation is one where custom should control. [3] We leave that question open; but we hold that it is not in all cases a sufficient answer to a barge’s absence without excuse, during working hours, that he has properly made fast his barge to a pier, when he leaves her. In the case at bar the barge left at five o'clock in the afternoon of January 3rd, and the flotilla broke away at about two o'clock in the afternoon of the following 210
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day, twenty-one hours afterwards. The barge had been away all the time, and we hold that his
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