The opinion of the court was delivered by: CASHIN
In this in personam action, the libellant seeks recovery for damages to its scow, Raritan, which resulted from a collision between the scow and the tug Justine McAllister.
1. The libellant, Chile Steamship Company, Inc., a New Jersey corporation, at all times under consideration was the owner of the scow Raritan, and the respondent, McAllister Brothers, Inc., a New York corporation, at all times under consideration was the owner of the tug Justine McAllister, and on February 14, 1955 operated and controlled the tug.
2. On November 12, 1953 the respondent dispatched to the libellant the following letter:
'Mr. A.D. Dederick, Vice President
'We wish to notify you that this Company is forced to decline liability for any damages sustained by your scows and lighters, and their cargoes, which may result from or be caused by towing and navigating in ice while en route from New York Harbor to Hastings-on-Hudsson, New York, and return.
'It is understood, however, that such declination of liability does not free us from other liabilities customarily assumed by the tower.
'We shall keep you advised of the conditions in the River and if we are ordered to tow in ice, we shall exercise all due diligence in the towing of your equipment. However, whether negligent or not, if any damage is sustained in towing in ice, we must be released of all liability on the basis stated above.
'In the above, it is understood that in towing in ice your vessels will not be towed alongside of tug or tugs, but will be ...