The opinion of the court was delivered by: BYERS
The libelant's barge Sam Demarest, while under the usual harbor charter to the respondent, which commenced on December 6, 1939, sustained hull damage for which recovery is herein sought. She was towed stern first by a Pennsylvania tug to the north side of Pennsylvania Pier L, Jersey City; she was moored about opposite door 24, near the center of this 1,400 foot pier. Ahead of the Demarest lay the libelant's barge Nana, close coupled.
This was accomplished at about 10:05 p.m. on December 6th.
There is a dispute as to whether the mooring was alongside the pier, as the tug captain asserts, or outside of a vessel already berthed at that place. The captain of the Demarest says there was a vessel inside his barge, the dimensions of which were not shown.
Since the slip is 340 feet wide, the width of open water on the port side of the Demarest was not lacking in significance, in view of later developments.
Around midnight the Demarest was struck by another vessel on her port side about amidship at her fourth plank from the bottom, about two feet above the water line. This damage also involved the wearing piece in the way of the broken plank; the break was up and down, the plank being stove in about an inch; from this it will be seen that the damage could have been done by a vessel moving in the slip.
The diesel tug Wicomico was in that slip around midnight to pick up the stick lighter France, approximately at door 31 on the same pier, which would be about 200 feet outriver from the place where the Sam Demarest lay.
The Wicomico entered the slip favoring the north side, not knowing the exact location of the France, which was picked up in the tug's searchlight; whereupon she circled around under a left rudder so as to head out of the slip, making fast to the France on the tug's starboard side.
Necessarily the maneuver required some backing and filling. Thus Sweeney, the tug's captain:
"I spotted my stick lighter, and I put my wheel hard aport, come around hard aport, came up toward the France, and backed on my boat --"
"* * * and then when I got up near the France I barely come up to it, and worked around on that boat.
"Q. You have to do considerable backing and filling in the case of such maneuvers, do you ...