The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This suit is brought to recover damages alleged to have been caused to the boat and her cargo by the turning over and sinking of the coalboat Dorothy R. McCollum while in tow of the respondent's steamtugs Overbrook and Delmar.
I find the facts as follows:
The libelant, at all the times hereinafter mentioned and at the time of the trial, was a domestic corporation and the owner of the coalboat Dorothy R. McCollum and owner of the cargo of coal laden thereon.
The steamtugs Overbrook and Delmar were, during the currency of process hereunder, within this district and the jurisdiction of this court.
At all the times hereinafter mentioned and at the time of the trial, the Pennsylvania Railroad Company was a corporation organized and existing under and by virtue of the laws of the state of Pennsylvania.
Early on the morning of February 20, 1932, the steamtug Overbrook left South Amboy, N.J., bound for New York, with a tow of four loaded coalboats arranged in two tiers each, on a hawser 300 feet in length.
A clearly boat was the starboard hawser boat, the Dorothy R. McCollum, the port hawser boat, the Dorita the starboard boat in the second tier, and the Port Carbon was the port boat of the second tier.
The Dorothy R. McCollum had a freeboard of 3 to 4 feet forward, 2 1/2 feet aft, and 18 to 20 inches amidships.
The Port Carbon had a freeboard of about 2 feet amidships.
Both the Dorothy R. McCollum and the Port Carbon were fully loaded, but the Cleary boat and the Dorita were partly loaded, and each had a higher freeboard amidships than the Dorothy R. McCollum and the Port Carbon.
The tow proceeded through the Kills, being joined by the steamtug Delmar, as an assisting tug, off Port Reading.
The wind was out of the northwest, blowing about 25 to 30 miles an hour, and had been blowing out of that quarter for about 12 hours.
The tide was flood, and there was some sea running, but not a very heavy one.
Under these conditions the master of the Overbrook had, as was customary, determined that it was safe and proper to proceed up New York Bay with his tow, when he was in Newark Bay.
About 6 o'clock a.m. the tow proceeded out of the Kills into the upper bay, and about 6:10 o'clock a.m. the captain of the Dorothy R. McCollum, finding that water was coming into the hatch and into the coal, called to the steamtug ...