(after stating the facts as above). The elevator machine consisted of an endless chain of coal buckets inclosed in an iron case, 34 or '36 feet long, with an electric motor at the top. The method of using it was as follows: The barge being made fast alongside, the elevator was hoisted up to the end of a boom projecting over the ship’s side. The hoisting was done by a tackle operated from a hoister boat belonging to the steamship company and also alongside. The elevator was then lowered till its bottom rested on top of the coal, and it was then put in operation; coal being shoveled into the-buckets as they revolved. In this way the bottom of the elevator gradually moved downwards through the coal, the tackle allowing it to descend, until it reached the bottom of the hold when boards were placed beneath its legs so that they might not injure the bottom planking of the boat.

Whenever work was stopped at the close of the day, any elevator which was still resting on the coal, an unstable foundation, was hoisted up to the end of the boom and allowed to hang there overnight. If any elevator had, at such time, reached the bottom of the hold and was resting on the boards placed to receive it, the tackle leading to the boom was detached or left free to run on the drum and the elevator was held upright in place by'eight guy ropes, running from the top of each machine to the rail of the barge. These automatic elevators of the De Mayo Company have been in use in this port for five or six years; during that time they have always been operated and maintained overnight in the way above indicated without mishap, except that at first there were some complaints of injury done to the bottoms of barges, which was the reason why boards were placed under the legs of the machine, after which there were no further complaints.

Libelant’s barge was made fast in the usual way and unloading by two elevators began about 4 p. m. By 6 p. m., when the work was stopped for the day, about 40 tons of coal had been removed.The man in. charge of the barge left some time after work began to attend to some business on shore, and came back at about 8:30 p. m. after the accident .had happened. Although there is some 'slight conflict on that point, the proof clearly shows that by the time work stopped both elevators had reached the bottom and rested on-boards, and both were secured in the usual way by means of the guy ropes. Since the man .in chargé of No. 95 was not on board or on the *157dock at the'tíme, the narrative oí what happened thereafter is very vague and uncertain. The barge Rosie lay ahead of No. 95, and the man in charge of her felt a swell and ran out of his cabin on deck-He naturally gave his attention particularly to his own boat, which also had two elevators standing up in her secured by guys in the usual manner. Afterwards, looking at No. 95, he “saw the lines flying from the guy ropes where they had the elevator made fast, flying around, and the machine and everything was under water, and I heard the rattling of the wire ropes from the boom go. * * * The forward machine fell against the ship. Then the boat turned over the other way, and went down.”

We can find nothing in the contracts to warrant a finding that either the steamship company or the De Mayo Company was a bailee of the barge. Recovery can only be had upon the libelant showing by a preponderance of proof that there was some negligence on the part of the ship or the loading company. We concur with the district judge in the conclusion that libelant has not sustained the burden of proof necessary to recovery.

The preponderance of evidence shows that the ropes used were proper, good and satisfactory. So far as appears, they were fastened in the usual way, and the elevators were secured as they had been for years without any accident happening, and without any one making any objection to this method of storing them overnight or any suggestion that there was anything unsafe about it

Judge Holt concludes his oral opinion with these words:

“On the whole I do not see any sufficient ground of fault on the part of the respondents to authorize a recovery against either of them. It is hard on ihe libelant and it seems a strange thing for this accident to have occurred. but any man who brings a lawsuit has got, to prove the right to recover affirmatively, and I d.o not think that has been done in this case.”

In this conclusion we concur.

Decree affirmed, with costs of this appeal, one-half to each respondent.