(dissenting).
I agree that the consignee, although it was in the position of wharfinger, is not liable because the berth was foul; a fortiori the tug would not be liable were it not for the protest of the bargee. However, when the bargee told the tug master that there was .“no water for a heavy scow,” and that at low tide he would be “on the ground with his load,” it seems to me to have been a warning that the barge was likely to be injured if put next to the wharf. The tug master did not heed this protest, and the barge was damaged quite as the bargee forewarned. That being true, it established liability. Whenever any one exposes the property of another to the risk of damage and damage ensues, I take it he must show that he had an interest to protect which matched the risk he imposed. On his own testimony, the tug master could have put the barge in the southern tier where there were “two or three barges,” and, although he said that it was not the custom to do this, certainly that did not excuse him. Again, although the Fowler, which lay outside the No. 35, was also loaded the tug master did not inquire whether the Fowler’s bargee would have protested at being put inside the No. 35. So I can find no interest of the tug for making the shift which matched the risk that, as I believe, she imposed upon the scow.