The opinion of the court was delivered by: INCH
This is an action in admiralty by New York Trap Rock Corporation to recover damages resulting from the sinking of its scow Frank C. Mertz on November 9, 1947, when it became grounded on an obstruction near the north dock of the consignee, Colonial Sand & Stone Co., Inc. at Astoria, New York.
Libelant contends that the consignee, Colonial Sand & Stone Co., Inc. failed to furnish the scow with a safe and proper berth. The fault alleged against the tug Buchanan Sisters is that the tug shifted the scow from a safe to an unsafe berth.
The preponderance of credible evidence establishes the following facts:
1. On November 8, 1947 libelant's deck scow Frank C. Mertz, loaded to a draft of approximately 9 feet with a cargo of 688 tons of crushed stone consigned to Colonial Sand & Stone Co., Inc., was towed to the Colonial plant at Astoria, New York.
2. The Colonial plant is shown on libelant's Exhibit 8 and is designated by the encircled numeral 165. It consists of a slip which is bordered on the northerly side by a dock that extends out into the East River for a distance greater than the depth of the slip. This dock is referred to by the parties as the 'south dock'.
3. The northerly side of the slip ends in a bulkhead which runs in a northerly direction along the river to a vacant or abandoned pier which is adjacent to but not a part of the Colonial plant and is indicated on libelant's Exhibit 8 by the encircled numeral 164. This bulkhead is referred to by the parties as the 'north dock'.
4. On the south side of the vacant pier was a submerged wreck which had been there for many years and part of which was plainly visible at low water.
5. At 5:00 P.M. on Saturday evening, November 8, 1947 the scow Mertz was moored on the outside of three other loaded scows which were berthed on the north side of the south dock and out toward the river end of the dock. Further up in the slip were the empty scows Shamrock 110 and Triboro 14. At this time the light scow Blarney Stone was moored to the north bulkhead.
6. Sometime after 5:00 P.M. on Saturday, November 8, 1947 the partly loaded Central Railroad of New Jersey covered barge number 328 was moored outside The Mertz, thereby increasing the number of scows in the tier to five.
7. The Mertz while moored in this tier of scows on the north side of the south dock was in a safe and proper berth.
8. When the tug Buchanan Sisters arrived at the Colonial plant on the early morning of Sunday, November 9, 1947, it found the various scows in the above described positions with the exception of The Blarney Stone which it found in a position across the slip, directly south of the berth it had previously occupied.
9. The tug Buchanan Sisters had orders to tow the empty scows Shamrock 110 and Triboro 14 from the Colonial plant to Port Washington.
10. Finding the entrance to the slip obstructed by the tier of five scows and The Blarney Stone, the tug Buchanan Sisters first shifted The Blarney Stone back to approximately its original berth on the face of the north dock. It then shifted The Jersey Central 328 and The Mertz as a unit from the tier of 5 scows and moored The Jersey Central 328 outside The Blarney Stone with The Mertz outside The Jersey Central 328.
11. As a result of this shift the stern of The Mertz was in close proximity to the partially submerged wreck which was adjacent to ...