The opinion of the court was delivered by: BYERS
The question for decision is whether the libelant's scow John J. Horan was struck by the Pennsylvania Railroad's Diesel tug Detroit or by a carfloat being towed by the New Haven steamtug Transfer No. 17 on May 29, 1944, when the scow was lying on the north side of the open pier at Greenville, New Jersey.
The fact of damage to the scow on her starboard side was established.
She had been chartered to the Pennsylvania at the time in question, and her delivery in good condition and her return on June 2, 1944, in damaged condition are not now in question.
The Pennsylvania alleged that while the scow was so under charter to it and on the afternoon of May 29, 1944, it was struck on the starboard side by a carfloat in tow of Transfer No. 17 wherefore it filed an impleading petition against the Trustees of the New York, New Haven and Hartford Railroad Company, to be called the New Haven.
The latter by cross petition denied that its carfloat so struck the scow, and alleged that the damage was actually caused by the Pennsylvania's Diesel tug Detroit, which was proceeding inshore, close to the northerly side of said open pier, between the tow composed of the Transfer No. 17 and her two carfloats which were headed out of the slip, and the scow, so close to the latter as to strike it.
The narrow question of fact which survives the trial is: Which tug did the damage? The testimony yields the following:
(1) Ownership of the scow John J. Horan and the incorporation of the other parties and ownership of the respective tugs, and the appointment of the Trustees of the New York, New Haven and Hartford Railroad Company, all as alleged in the pleadings, are found as pleaded.
(2) The John J. Horan is a wooden scow, 113 feet by 33 feet, having an inside depth of 8.9 feet.
(3) On May 29, 1944, at about 2.30 p.m., the said scow was being loaded at the northerly side of the open pier at Greenville, New Jersey, bow in, about 400 feet from the bulkhead and about two or more lengths outshore from the five float bridges at the inshore end of the slip.
There was about 875 feet of water between the said open pier and the mooring rack opposite.
(4) The said scow was then under charter to the Pennsylvania Railroad Company, and its movements were directed and controlled by that Company; the scowmaster on board was Matthew Campbell, an employee of the libelant.
(5) At about 2:30 p.m. the New Haven steamtug Transfer No. 17 (the dimensions of which are 112 feet by 26.2 feet with an inside depth of 14 feet, and 1,000 horsepower) proceeded to the float bridges 13 and 14 immediately adjacent to the north side of the said open pier, and took in tow two steel carfloats, Number 68 on the tug's starboard and the other on its port hand.
(6) Both carfloats carried railroad cars; there being twenty on Number 68. The dimensions of that float are 360 feet, 2 1/2 inches, by 40 feet, 2 1/2 ...