The opinion of the court was delivered by: BARD
This is a libel in personam to recover the cost of removing from libellant's vessel, partially submerged in the navigable waters of the Delaware River and from the channel at the foot of Packer Avenue, a large amount of industrial waste discharged by respondent's alcohol plant into these navigable waters.
Jurisdiction is conferred upon this Court by Section 24(3) of the Judicial Code.
I make the following special
1. Libellant, B. J. Maier, a Pennsylvania citizen trading as Great Eastern Metal Company, has engaged in the business of salvaging and scrapping ships for twenty-five years.
2. Respondent, Publicker Commercial Alcohol Company, is a corporation engaged, at all times pertinent hereto, in the manufacture of alcohol and allied commercial products. Respondent's plant is located on the shore of the Delaware River at Delaware Avenue and Bigler Street, Philadelphia, Pennsylvania.
3. On May 27, 1940, libellant purchased a vessel formerly known as the 'Oglethorpe,' together with another vessel, from the Philadelphia Derrick and Salvage Corporation.
4. On that date, and subsequently thereto, these vessels were lying in a sunken and partly submerged condition in the navigable waters of the Delaware River, in a slip at the foot of Packer Avenue, Philadelphia, beside a wharf belonging to the City of Philadelphia.
5. The partially submerged vessel, formerly known as the 'Oglethorpe,' which is the subject matter of this libel, was 277 feet in length, about 50 feet wide and about 30 feet deep. At the time libellant became her owner the vessel had a hole approximately 100 feet in length and from 1 to 6 feet in width in her starboard side, and a hole 15 feet in length and about 7 feet in width in her port side.
6. On September 1, 1942, libellant entered into a contract with Metals Reserve Company, a government agency, to raise and scrap the vessels and to sell the metal obtained therefrom to the Metals Reserve Company. The contract was to be performed within eight months, but the time of performance was later extended to October 15, 1944.
7. During the Fall of 1942, shortly after executing the agreement with the Metals Reserve Company, libellant raised one of the vessels during a two week period at a cost of $ 1200.
8. During September or October 1942 libellant did the preliminary work of patching the starboard hole on the other vessel but abandoned further efforts to raise the vessel due to the approaching Winter season.
9. In January 1942, pursuant to a directive of the Office of Production Management, respondent substituted grain for molasses as the basic material for alcohol production. Respondent was unable to obtain screening and drying equipment to process the grain residue and therefore proceeded to discharge this residue into the Delaware River.
11. Respondent did not receive authorization or consent to discharge the residue from the United States of America, the Commonwealth of Pennsylvania, or the City of Philadelphia.
12. The grain residue filled the holds of the submerged vessel. Between June 18, 1943, and October 8, 1943, libellant expended time, labor, equipment and materials to remove the ...