The opinion of the court was delivered by: BRENNAN
1. This is an action in Admiralty to recover a judgment because of the alleged negligence of the respondent, Albany Asphalt & Aggregates Corporation, in which the Harnischfeger Corporation is impleaded as a respondent.
2. At all the times mentioned in the libel the libellant and respondent, Albany Asphalt & Aggregates Corporation, were and still are domestic corporations organized under the laws of the State of New York.
3. At all such times respondent-impleaded, Harnischfeger Corporation, was and still is a foreign corporation, organized under the laws of the State of Wisconsin, but was authorized to do business within New York State, having deputized the Secretary of State of the State of New York as its agent to receive all process in law issued against it.
4. At all such times libellant was the owner of the scow Marcella Horan, docked at a pier on the Hudson River, at Albany, N.Y.
5. That on July 1, 1948, the respondent, Albany Asphalt & Aggregates Corporation, was the lessee of and operated and controlled a certain hoisting crane, located on its premises at the Port of Albany, New York, which crane was owned by the Tim O'Meara Sales Co.
6. That prior to June 29, 1949, the hoisting crane was properly assembled by employees of the respondent, Albany Asphalt & Aggregates Corporation, employees of Slade Tractor Company and an employee of the impleaded respondent, Harnischfeger Corporation, the manufacturer thereof.
7. That the hoisting crane was operated on June 29 and 30, 1948 by an employee of respondent, Albany Asphalt & Aggregates Corporation, and an employee of the impleaded respondent, Harnischfeger Corporation.
8. That the hoisting crane operated in a normal manner on June 29 and 30, 1948.
9. That the employee of the impleaded respondent, Harnischfeger Corporation, completed his work relating to the assembly and inspection of said machinery, and left the scene of the accident on June 30, 1948.
10. That at about 4:00 P.M. on July 1, 1948, while that crane was being operated and controlled by the agent and servant of the respondent, Albany Asphalt & Aggregates Corporation, the clamshell bucket, suspended from a hoisting boom by cables and loaded with sand so that the bucket and its contents weighed approximately five and one-half tons, fell, after being hoisted to a height of about 20 or 25 feet upon the deck of the scow, causing damage thereto.
11. Immediately following the accident, the respondent's agent and servant found that the reserve tank, which should have contained hydraulic fluid, was empty; and immediately upon the filling of the tank with the required fluid, and letting the air out of the hydraulic line the crane was operated again and is still operating without any material changes.
12. That the hydraulic system had been properly filled prior to placing the crane in operation, and the two small leaks subsequently discovered were incapable of providing a medium for the escape of the fluid therefrom.
13. The occurrence of July 1, 1948, above referred to, was caused by the negligence of the Albany Asphalt & Aggregates Corporation, its agents and servants, by reason of its failure to properly inspect and maintain the hydraulic system of said machine, and provide the necessary amount of fluid for its proper operation, or by reason of the negligent operation of the mechanism controlling the movement of the bucket.
14. There was no negligence on the part of the impleaded respondent, Harnischfeger Corporation, its ...