The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This is a suit for alleged cargo damage.
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 and by virtue of the laws of the state of New York.
At all the times hereinafter mentioned, the libelant was the owner of a cargo consisting of 881 gross tons of bituminous coal, laden on board the barge Maurice R.
The barge Maurice R. was during the currency of process within this district and within the jurisdiction of this court.
At all the times hereinafter mentioned and at the time of the trial, the respondent Pennsylvania Railroad Company was a foreign corporation organized and existing under and by virtue of the laws of the state of Pennsylvania, and having goods, chattels, property, credits and effects, including floating equipment, tugs, floats, and barges, within this district and within the jurisdiction of this court.
On the 23d day of December, 1931, a representative of the Newtown Creek Coal & Coke Company called Mr. Hickey, of the claimant's office, and asked Mr. Hickey for a boat to carry between 850 and 900 tons of coal. Mr. Hickey informed the libelant that he could use the Maurice R. The barge Maurice R. was not under continuous charter to the libelant.
The barge Maurice R. was, on the afternoon of December 23d, reported to the Pennsylvania Railroad Company for towage, and on the same day she was picked up and towed down to South Amboy with other light barges by the Pennsylvania Railroad Company tug Baltimore, arriving at South Amboy at 10:20 a.m. on December 24th.
The barge Maurice R. was not placed alongside the railroad bridge but was placed alongside of the rack and two light barges were outside of her.
The coal was owned by libelant and not by the Pennsylvania Railroad Company.
There was no contract made with the Pennsylvania Railroad Company to tow to South Amboy, load and return.
Upon arrival at South Amboy the barge captain reported his boat for loading for 750 tons.
When McGonigle, the shipping clerk of the Pennsylvania Railroad Company, noticed that the boat had been reported for 750 tons and knew that the libelant's shipment was in excess of that amount, he called Mr. Brown, of the libelant, and informed him of the barge captain's registration. Brown told McGonigle that he had hired the boat from O'Boyle as capable of carrying between 850 and 900 tons of coal, and that he would get in touch with Hickey to have the matter ironed out, which he did, and Hickey got in touch with McGonigle and told McGonigle to load the boat with 850 tons.
The barge Maurice R. remained lying outside other boats alongside the rack during December 24th and throughout December 25th, but in the morning the boats inside of her were shifted and she was placed alongside the rack.
At no time while the Maurice R. was at the mooring stakes, on December 24th, 25th, or 26th, was she damaged by pounding or any other cause, and her captain did not observe or report any damage during that time, or ask for assistance.
On December 26th, at 6:15 o'clock a.m., she was shifted from the rack to the loading pier B, by the respondent's steamtug Radnor.
On December 26th, at 7 o'clock a.m., respondent received the written order mailed by the libelant on December 24th, to load the Maurice R. with approximately 900 tons of Luzino class coal, and tow her to Eagle street, Brooklyn.
On the morning of December 26th, 881 tons of coal were placed on the barge Maurice R. The boat was properly loaded, her captain made no complaint, and her freeboard was about 12 inches. 881 tons was well within the capacity of the Maurice R.
When the loading was finished, the barge captain sounded his boat and found that she had 14 inches of water in her. She was at the dumper pier waiting to be shifted into the loaded tow. The captain of the Maurice R. then started pumping with her gasoline pump, which was located on the port side aft.
The pump worked for about half an hour and pumped water out.
The pump was working when the shifting of the barge to the loaded tow by the tug Overbrook commenced, but stopped ...