The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
National Operating Company, Incorporated, was, on the petition of the Respondent Petterson Lighterage & Towing Corporation, impleaded under the 56th Rule in Admiralty, 28 U.S.C.A. following section 723.
On or about September 26, 1941, the libellant, by verbal charter, chartered to the respondent the scow "Jane Anne", on the usual terms of the ordinary harbor charter prevailing in New York Harbor, the libellant to employ and pay a captain for said scow. Under such a charter, the respondent was bound to return the scow to the libellant in the same condition as when delivered to the respondent, ordinary wear and tear excepted.
On or about the 26th day of September, 1941, the libellant delivered the said scow "Jane Anne" to the respondent, and at that time the said scow was tight, staunch, strong, and seaworthy, and properly manned and equipped.
At the time the said scow "Jane Anne" was returned to the libellant, it was not in the same condition as when delivered to the respondent, but was in a damaged condition, which damages were not the result of ordinary wear and tear.
At the opening of the trial, the Proctor for the libellant stipulated that the libel does not cover the damage on the stern, and port side, of the scow "Jane Anne", as shown on the survey of October 14, 1941.
On the morning of September 29, 1941, the scow "Jane Anne" was lying partly loaded at the outer end of the north side of Pier 28, East River.
At about 9.45 o'clock on that morning, the agents, servants, and employees of the respondent-impleaded, who were stevedores, or longshoremen, and engaged in discharging the S.S. "Sines", in the absence of the Captain of the scow "Jane Anne", shifted said scow "Jane Anne" from her position alongside the end of the north side of the Pier 28, into the slip on the south side of said pier, and moored the said scow, in the same position in which she had previously been, outside of two other boats, the steam lighter "Lumber Jack", and the scow "Frederick Starr No. 1", which were moored alongside the S.S. "Sines", which in turn was lying bow in on the south side of Pier 28, East River.
The scow "Frederick Starr No. 1" was lying bow in the slip toward the bow of and alongside the S.S. "Sines". The steam lighter "Lumber Jack" was lying bow out toward the stern of the said S.S. "Sines".
The scow "Jane Anne" was moved in by hand by the stevedores, or longshoremen, employed by respondent-impleaded, and made fast by them bow out, with her stern overlapping the stern of the "Frederick Starr No. 1", by about three to four feet, and her bow was made fast to the "Lumber Jack". The "Jane Anne" was partly loaded with cork from the steamer, and loading was to be continued.
There is a sharp conflict in the evidence as to whether the stevedores or longshoremen remained on board the "Jane Anne", but I find that they did for a time, and that one of the stevedores, or longshoremen, was tending the stern line and 5 or 6 of them were gathered together between the after end of the cargo, which was loaded on deck and the forward end of the cabin, a space of three or four feet.
There was smoking going on, two of them had cigarettes, and one was seen to knock off the lighted end of a cigarette.
A stevedore came behind the Captain of the steam lighter "Lumber Jack", and hollered in Italian, and they all scooted.
Some time thereafter, the exact time being in dispute, and there always being a dispute as to estimated lengths of time, but, probably in excess of twenty minutes, a fire broke out in the scrap which fell from the cork piled on deck, and ran up the piles, and caused considerable damage to the "Jane Anne". While attempting to push the "Jane Anne" in subduing the fire, the New York City fireboat brought the starboard stern of the "Jane Anne" into contact with the "D.P.W. No. 7", a boat lying on the north side of Pier 27, and if damage was caused to the "Jane ...