The opinion of the court was delivered by: KALODNER
A brief history of the case is as follows:
On April 17, 1942, Roberta B. Conwell, as administratrix of the estate of Joseph P. Conwell, instituted a civil action in the District Court against The Curtis Bay Towing Company of Pennsylvania, to recover damages alleged to have been sustained by her by reason of the death of her husband, Joseph P. Conwell, on February 21, 1942, while boarding the Tug Port Covington, which was tied up alongside the Tug Curtis Bay, which was in turn moored to Pier 28 South.
The Curtis Bay Towing Company of Pennsylvania on or about July 15, 1942, filed a petition for exemption from and limitation of liability as owner of the Tug Port Covington, entered an ad interim stipulation, and obtained a restraining order staying and restraining further proceedings in the aforesaid civil action, pending the disposition of claims in said limitation proceeding.
The administratrix filed exceptions to the limitation petition and as a result thereof the petitioner was required to surrender or stipulate for the Tug Curtis Bay and to amend the petition in other respects.
Thereafter the petitioner filed an amended petition as owner of the Tugs Port Covington and Curtis Bay, entered an ad interim stipulation in the amount of $20,000 ($10,000 for each tug) and obtained a restraining order staying further proceedings. The case was then referred to Manuel Sidkoff, as Special Commissioner, to take proofs and report to the Court his conclusion as to the amount or value of petitioner's interest in Tugs Port Covington and Curtis Bay as of February 21, 1942.
Hearings were held before the Special Commissioner on March 17, 22, 24 and 29, 1943, and on August 24, 1943.
The petitioner produced Mr. Frank J. Bradley, Marine Superintendent of P. F. Martin and Sheridan Transportation Company since 1907. Mr. Bradley had appraised the two tugs in October, 1942, at a value of $10,000 each, and testified that in his opinion such was their value on February 21, 1942, if they were in the same condition on that date as which he appraised them in October, ordinary wear and tear excepted.
Petitioner also produced Mr. O. C. Chapman, a naval architect and consulting engineer, who having acted as ship, boat and tug broker for a great number of years, had made surveys and appraisals. Mr. Chapman appraised the two tugs on October 20, 1942, the same date as Mr. Bradley, and was of the opinion that the two tugs were of a market value of $10,000 each if they were in the same condition, ordinary wear and tear excepted, on February 21, 1942, as on October 20, 1942.
The petitioner also produced Mr. Richard J. Ponds, the Marine Superintendent of the petitioner, who testified that he had seen the two tugs practically every week during the interval between February 21, 1942, and October 20, 1942, and that the two tugs were in the same condition, ordinary wear and tear excepted, on October 20, 1942, as they were on February 21, 1942.
The claimant produced Mr. Charles T. Banks, who had been engaged by himself since 1937 in the towing business, trading as Charles T. Banks Towing Line, and who, prior thereto, had been generally engaged as a Marine Captain on the river. He appraised the two tugs at a value of $30,000 each.
At the hearings, the claimant, over objection of petitioner, introduced into evidence the detailed list of repairs and renewals made to the Tugs Port Covington and Curtis Bay, as set forth in the answers to the eighth and twenty-third interrogatories which the petitioner had prior thereto been required to answer. The claimant also introduced into evidence, subject to objection, a list of domestic and foreign tonnage handled annually at the Port of Philadelphia, as computed by the United States Army Engineers for the years 1920 to 1941, inclusive.