(dissenting).
I agree with the court below; see The Victor, D.C., 58 F.Supp. 928. The burden was upon the libellants to prove the alleged negligence of the Victor by a preponderance of the evidence. When it appeared that the Timberline, while moored to the bank, was struck by a moving barge, which was being towed by the Victor, a presumption of negligence arose against the tug. This created a prima facie case in favor of the libellants, which rested upon a rebuttable presumption.
It thereupon became the duty of the respondent (appellee here) to go forward with the evidence, which it did by proving that the launch was moored in an unsafe place in violation of rules and regulations having the force and effect of law. Thus the presumption against the tug disappeared altogether from the case, and the burden of proof remained upon the libellants to prove their allegations of negligence.
The owners of the Timberline did not have a permit to use a portion of the fairway as a mooring place. How dangerous was that place clearly appears from the testimony of the witness Cheramie, who said that if he had left the boat there all the time, “it would be bound to be broken.” This witness, who was in charge of the launch, would not even remain on it when the tugs and tows were passing.
“Q. And you would tie that boat up in front of your house whenever you were not using it, wouldn’t you? A. Well, I come there when [ want to land, but I *204don’t leave it there, because you can’t leave that, boat there with all them tows. If I would leave it there, I would have no boat a long time ago. I have to put them in the canal outside of the Intercoastal Canal. * * * A. Yes, I know if I leave it there, I wouldn’t have no boat.”
In The Oregon, 158 U.S. 186, 197, 15 S. Ct. 804, 39 L.Ed. 943, the court speaks of shifting the burden of proof; but, as the court was dealing with disputable presumptions, it is clear that only the burden of going forward with the evidence was meant. It is never the function of a rebuttable presumption to shift the burden of proof. Mobile J. & K. C. R. Co. v. Turnipseed, 219 U.S. 35, 43, 31 S.Ct. 136, 55 L.Ed. 78, 32 L.R.A.,N.S., 226, Ann.Cas. 1912A, 463. For the difference between a disputable presumption, which creates a mere prima facie case, and a presumption that is given the effect of evidence after testimony rebutting it has been introduced, see Western & A. R. R. Co. v. Henderson, 279 U.S. 639, 49 S.Ct 445, 73 L.Ed. 884.
The law as to the burden of proof is a matter of substance,1 and the substantive law of a case does not change as the trial proceeds. A rule of evidence may supply an inference of fact, but if that inference is rebutted, it disappears entirely from the case.
The same state of facts may give rise to two conflicting presumptions, the weaker of which must give way.2 The Pennsylvania case3 announces a practical presumption, which is often spoken of as the statutory-fault presumption.4 This is a rule of reasoning by 'the courts as to causation.5 Under it, if there was a violation of some statute that the courts deem to be a safety statute which might be causally connected with the collision, the courts will presume that such violation was the cause of the collision, unless the offender proves not only that it was not but that it could not have been.
This doctrine emphasizes the fact that the burden of proof on the trial below was not shifted to the appellee, and that the burden rested upon the Timberline of showing, not merely that her fault probably was not one of the causes, but that it could not have been. It is strengthened by The City of New York, 147 U.S. 72, 85, 13 S.Ct. 211, 37 L.Ed. 84, which holds that it is not enough for the injured vessel to raise a doubt with regard to the management of the other vessel, and that any reasonable doubt on the subject should be resolved in its favor.6
Finally, let us run the gamut of this case. At its inception the burden of proof was upon the appellants. This was temporarily met by evidence that the collision was between a moving vessel and one tied to the bank; but the presumption thereby created was quickly dissipated. It died almost at birth when the statutory fault of the Timberline appeared. Thereupon a practical presumption arose that enhanced the latter’s burden, beyond a mere preponderance of evidence, so that it was required to prove that its fault could' not have caused the injury.
With nine acts of negligence specifically alleged against the Victor, not one of 'them was proven by competent evidence. The favorite in the brief and argument seems to be that the barges were loosely tied and “swinging in the breeze.” No witness testified to this, and not even the length of the hawsers was shown. The deckhand, who probably saw exactly what happened, was not called as a witness. That it was possible for the Victor to avoid a collision is inferred by the success of the preceding tug, but the possibility of the feat was not the measure of its duty. The canal was built for navigation, and, tugs are not .required to navigate it at their» peril. Moreover, the wind may have been different. The absence of evidence on this subject favors the party who does not bear the burden of proof.
Central Vermont R. v. White, 238 U.S. 507, 35 S.Ct. 865, 59 L.Ed. 1433, Ann. Cas.1916B, 252; New Orleans & N. E. R. Co. v. Harris, 247 U.S. 367, 38 S.Ct. 535, 62 L.Ed. 1167.
20 Am.Jur., See. 163.
86 U.S. 125, 19 Wall. 125, 22 L.Ed. 148.
This should not be confused with a statutory presumption, contrary to which no proofs may be received. Benedict on Admiralty, Vol. 4, Sec. 620, p. 264 (6th Edition).
Benedict on Admiralty, Vol. 4, p. 267 (6th Edition).
General Seafoods Corporation v. J. S. Packard Dredging Co., 1 Cir., 120 F.2d 117.