The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
The three above entitled suits arise out of a collision at Pier K, Weehawken, N.J., on December 29, 1932. By stipulation they were tried together, and one opinion will suffice.
The first above entitled suit is brought by Annie Baker, who is alleged to be the owner of the grain boat Elizabeth M. Baker, which was sunk.
The second above entitled suit is brought by Smith-Murphy Company, Inc., which is alleged to be the owner of the cargo of wheat lately laden on board the barge Elizabeth M. Baker.
The third above entitled suit is brought by Joseph A. Ryan, who is alleged to be the owner of the barge Marion Ryan, which was damaged in said collision.
Each of these suits was brought against the steamship Black Hawk, steamtugs Joseph F. Meseck, Eugene Meseck, Meseck Towing Lines, Inc., and American Diamond Lines, Inc.
In each of the above entitled suits the steamtug Top Sergeant was on the petition of the respondent, American Diamond Lines, Inc., owner of the steamship Black Hawk, impleaded under the 56th Rule in Admiralty (28 USCA § 723).
In each of the above entitled suits, the tug New York Central 20 and the New York Central Railroad Company were on the petition of Meseck Towing Lines, Inc., claimant of the steamtug Joseph F. Meseck, impleaded under the 56th Rule in Admiralty.
Incorporation, ownership, and jurisdiction as to all parties, as alleged in the pleadings, was admitted.
On the morning of December 29, 1932, the steamtugs Joseph F. Meseck and Eugene Meseck, pursuant to the request of the Black Diamond Steamship Corporation, general agent and as such operating the steamship Black Hawk, were sent by Meseck Towing Lines Inc., which was operating and controlling said tugs, to Pier K, Weehawken, to assist in undocking the steamship Black Hawk, the master of the steamtug Eugene Meseck to board said steamship and act as pilot under Meseck's pilotage clause, which was admittedly known to the owner of the Black Hawk, and which made the master of the Eugene Meseck the agent of the owner of the Black Hawk and of said vessel.
According to said agreement the said steamtugs arrived at Pier K, Weehawken, at about 7 o'clock a.m. that day, to assist in undocking the Black Hawk, but she was not ready and the said steamtugs Joseph F. Meseck and Eugene Meseck, after waiting a little while, left to assist in undocking another ship on the New York side of the river.
When the two Meseck Tugs arrived and when they went away, there were at the end of Pier K four barges, the Erie 343 being made fast across the end of the pier, the Lackawanna 531 alongside the Erie 343, the Pennsylvania 458 alongside the Lackawanna 531, and the Pennsylvania 498 alongside the Pennsylvania 458.
The Erie 343 lay about 10 feet up river from the south end of the pier, and each of the other boats lay about 5 feet up river from the down river end of the boat inside of her.
At about 7:50 o'clock a.m. the tug Top Sergeant, with two grain boats, Elizabeth M. Baker and Marion Ryan, in tow on two hawsers in tandem style, bow first, in the order named, arrived off the south side of Pier K.
The Baker and Ryan were consigned to the Black Heron, a sister ship of the Black Hawk, which was lying on the south side of Pier K, farther out toward the outer end than the Black Hawk.
When the Top Sergeant and her tow were over toward Pier K, she let go the two hawsers and picked up the tow alongside by making fast the port side of the tug to the Elizabeth M. Baker.
The Top Sergeant then proceeded to go in on the south side of Pier K at about 7:50 o'clock a.m., at which time there was a grain elevator alongside the Black Heron toward which the Top Sergeant directed her tow, but was told by some one not to come in the slip as the ship was going out.
There is a conflict as to what was said by way of warning, and the witnesses on behalf of the Top Sergeant were not able to identify the person who gave the warning.
The Top Sergeant knew that the Black Hawk was going out, and that was why she was told not to come into the slip.
The Top Sergeant then headed her tow downstream, put her wheel hard-astarboard and pushed them down head to the tide, after which the tug placed two stern lines on the tow and dropped the barges down alongside the barges on the end of Pier K.
On the order of the master of the tug, the Elizabeth M. Baker put out two bow lines to the Pennsylvania 498 and the tug dropped down alongside the Elizabeth M. Baker, and the master of the tug told the captain of the Elizabeth M. Baker that the shifting tug would take care of him later. Whereupon the tug Top Sergeant, at 8:15 o'clock a.m., left to perform other work. No stern lines were put out from the tow, and the tow angled out in the river, the stern of the Baker being out 10 to 12 feet.
I can find no violation of law on the part of the tug Top Sergeant in placing the grain boats outside of the other boats at the end of Pier K, one at least of which had been placed there by the shifting tug, which was a contributing cause of the accident. The most that could be said would be that it was merely a condition. No request was made of the barges to move, but the shifting tug No. 20, employed in shifting loaded boats alongside the steamship to discharge their cargo, and shifting light boats away from the steamship after discharge, had been ordered before the moving of the Black Hawk to stand by the grain boats.
The Marion Ryan was made fast astern of the Elizabeth M. Baker with four lines, one at each corner, and two cross lines, but before the collision, one of these lines was let go by the captain of the Ryan, and that let her bow go around some distance, but the Ryan did not put out any lines to any of the boats at the end of Pier K.
The American Diamond Line had a lease of the south side of Pier K, with permission to use the north side when it wanted it, from the New York Central Railroad Company, and on the day in question the American Diamond Line was occupying the entire pier.
The New York Central Railroad Company, also by agreement with the American Diamond Lines, Inc., furnished a shifting tug which shifted boats under the orders of the Black Diamond Line, its officers, agents, or servants. The shifting tug furnished by the New York Central Railroad Company, on the day in question, was the No. 20.
There was really no slip to the south of Pier K, as the next pier to the south is over a quarter of a mile distant therefrom, but there were four dolphins, each about 200 feet distant from the south side of Pier K, the outer one being about 200 feet from the pier end.
This dolphin was about 8 or 9 feet out of water.
There were lying on the south side of Pier K on the morning in question, bow in, the steamship Black Hawk, 401 feet long, 54 feet beam, with her bow about 200 feet from the bulkhead, and the Black Heron, a sister ship of the Black Hawk.
The bow of the Black Heron was about 50 feet astern of the Black Hawk, and her stern was about 50 feet in ...