The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This is an action brought to recover for damages to a tug owned and operated by the libelant, alleged to have been damaged by the moving drawspan of a bridge owned and operated by the respondent.
I find the facts as follows:
At all the times hereinafter mentioned and at the time of the trial, the libelant was a domestic corporation, organized and existing under the laws of the state of New York.
At all of such times the libelant was the owner of the tug J. Rich Steers.
At all the times hereinafter mentioned and at the time of the trial, the respondent was a foreign corporation, organized and existing under and by virtue of the laws of the state of Pennsylvania.
The respondent was not within this district at the time the libel herein was filed, but had goods, chattels, property, credits, and effects within this district and within the jurisdiction of this court, to wit, certain tugboats, floats, barges, and other floating equipment subject to the jurisdiction of this court.
On December 19, 1931, the J. Rich Steers proceeded up the Passaic river with two loaded scows in tow. The first one she landed to the southward of the Commercial Dock, commonly called the Market Street Bridge, at Newark, N.J., the other she landed further up the river, and to do so she had to go through that bridge.
The place where the first scow was landed was a bulkhead where scows are tied up, and has been in use for that purpose for the last year and one-half.
This scow was landed outside of another scow and there was a light scow, H.S. No. 88, lying above and closer to the bridge than the tier including the scow he had just landed.
After landing the scow further up the river, the tug J. Rich Steers proceeded down the river, and as she approached the Market Street Bridge, gave a three-whistle signal for the bridge to open.
The bridge was not ready to open and gave the regulation two-blast signal.
The J. Rich Steers held back and subsequently the bridge gave the signal and proceeded to open the easterly end of the bridge opened up river to the north and the westerly or Newark end opened down river to the south.
The J. Rich Steers then proceeded down through the west draw until she was down by the scow she had landed on her way up the river, which was below and outside of the draw, and pulled partly alongside said scow in order to give a Tracy tug, the Alfred P. Brown, which had two coal boats in tandem tow, and had been behind the Steers, room to pass through the draw and get clear of the Steers.
A Tice tow, the Viatic, with one barge in tow, passed through the east draw at the same time as the Steers passed through the west draw.
The Tracy tow then lined up for the east draw and passed down through it behind the Viatic.
When the Steers observed that the Tracy tow was lined up for the east draw, the bridge was still fully open, and the Steers backed to get in position to pick up the H.S. No. 88, which was up above the end of the center pin abutment. When the Steers was just below the end of the draw, it started to close. The Steers kept on backing without giving any signal, and the master of the Steers heard the whistles begin to blow, heard a crash, and then a crash on top of that. He immediately stopped the tug and looked out, saw that the smokestack was partly pushed over toward the starboard side and also ...