33. It would be impossible to ascertain from the evidence how much of the damage to the cables was caused by the non-negligent operation of the tug which resulted in the initial striking of the cables and how much of the damage was caused by the subsequent maneuvering to free the propeller of the cable, if the subsequent maneuvering had been found to constitute negligence and such allocation of damages were necessary.
The principal question in this case is whether the damage to claimant's cables was caused by the negligent operation of the Steamtug Mars. I have concluded that claimant has failed to prove by a preponderance of the evidence that the damage was caused by the negligence of the captain or those persons in charge of the tug.
The tug, while executing a simple, orthodox maneuver, struck the cables about 100 feet off the end of the Delaware Power and Light Company Pier. In 1930 the power company had laid 4 cables across the river in this same area and had entrenched them 10 feet under the river bottom. In 1947 the power company laid 8 additional cables unentrenched on the river bottom. It was several of these more recently laid unentrenched power cables which the tug struck and damaged. By virtue of a government permit the power company had a right to lay the more recent cables on the river bottom unentrenched, but in laying the cables in that manner it assumed the risk that vessels going to and from the Reading Company Pier might collide with the cables in the shallow water off the power company pier, which is a mere 147 feet from the pilings along the near side of the Reading Company Pier. See United States v. Henry Steers, Inc., D.C.N.Y. 1934, 8 F.Supp. 363, 1934 A.M.C. 1001.
One of the engineers, a witness for the claimant power company, testified that the engineers participating in laying the cables in 1947 assumed that any vessel deviating from its course to and from the Reading Company Pier in the direction of the cable area would go aground before hitting the cables, since the river becomes gradually shallower as one travels north from the waters surrounding the Reading Company Pier to the waters surrounding the power company pier. The accident involved in the present case is conclusive proof that the engineers misjudged the actual risk created by laying unentrenched cables across the river. The power company itself is chargeable with the consequences of the misjudgment of its officers and agents and is itself responsible for the damage to the cables caused by an accident within the scope of the risk it assumed when it laid unentrenched cables in a heavily travelled area near a railroad pier. The right of a vessel to have navigable waters free from obstructions is paramount to the right of the owner of unentrenched cables lying beneath the surface. United States v. Henry Steers, Inc., supra. The initial striking of the cables, therefore, was clearly not the result of any negligence in the operation of the tug.
Claimant power company vigorously contends that after the tug had caught the cable in its wheel (propeller) it was grossly negligent in backing and filling in order to free itself of the obstruction and resume its operation. It argues that the tug captain should have known that the obstruction which fouled the wheel was a cable, since the tug at the time of the initial contact was directly in front of the well illuminated power company pier on which there was a large neon sign proclaiming 'Cable Crossing' and in an area designated 'Cable Area' on his charts and since the captain should have known of the electrical arcing above the 'Cable Crossing' sign at the instant of the initial striking of the cables. It further contends that under these circumstances the subsequent maneuvering to free the wheel was an act of negligence.
It is true that the tug maneuvered for 10 or 15 minutes after it had struck the cable and that by so doing it probably damaged the cable much more than it would have damaged it if the tug had stopped immediately when it first ran into the cable. But I cannot decide that the tug company is liable for the damage which was done to the cable subsequent to the initial striking, both because in my opinion the tug captain did only what a reasonable and prudent captain would have done under the circumstances to free the propeller from the obstruction in it,
and also because there is no way to determine how much of the damage to the cable was done by the initial striking thereof and how much of the damage was done by later maneuvering.
Conclusions of Law
A. In Respect to Limitation:
1. The court has jurisdiction of the parties and of the limitation proceeding.
2. The petitioner was the registered owner of Tug Mars at all material times. He is thereby entitled to petition for exemption from, and limitation of, his liability in this proceeding.
3. The petitioner is without privity or knowledge of this accident. Even if the operating manager of the vessel had participated in any way, which I have found not to be the case, the petitioner would not be bound by such participation under the express provisions of the Limitation of Liability Act, as amended, 46 U.S.C.A. § 183(a).
4. The petition for the right to limit liability to the amount fixed in this proceeding is hereby granted.
B. In Respect to Liability:
5. The court has jurisdiction to determine the merits of the claim presented by Delaware Power and Light Company.
6. Tug Mars was seaworthy at all material times, and was properly manned, equipped and supplied for the intended voyage. She was competent in all material respects for the performance of the work assigned to her.
7. The point where the accident occurred was open water with sufficient depth, in view of the soft mud bottom, to permit a vessel having the existing draft of Tug Mars to navigate. It was accordingly navigable water, and vessels had the paramount right to use it free from obstruction.
8. There was nothing to put the master of the tug on notice that the cables were not entrenched a safe distance below the soft mud surface of the bottom at that point. The sign reading 'Cable Crossing' warned that cables existed in the vicinity, but did not imply their location in respect to the bottom. The master was justified in assuming that the cables were so located that they would not constitute an obstruction to the use of navigable water.
9. The navigation up to and including the time of the initial striking of the cables was reasonable and proper under the circumstances. The master was entitled to make use of all navigable water in the Delaware River opposite the cable pier. He was not negligent in continuing to back at half speed until he had sufficient distance to complete his docking operation, and he was not limited to any particular distance as long as he was in navigable water, where his vessel had paramount rights.
10. The permit granted by the proper governmental agency to the claimant corporation to lay its cables on the surface of the mud in 1947 did not alter the paramount rights of light-draft vessels such as Tug Mars to use the navigable water in the vicinity of the cable pier.
11. Claimant power company assumed the risk of the damage to the cables caused by the initial striking by the Tug Mars. See United States v. Henry Steers, Inc., D.C.S.D.N.Y. 1934, 8 F.Supp. 363, 1934 A.M.C. 1001.
12. The subsequent maneuvering of the tug backward and forward in the attempt to free it of the cable entangled in its propeller was not an act of negligence under the circumstances.
13. It would be impossible to ascertain from the evidence how much of the damage to the cables was caused by the operation of the tug which resulted in the initial striking of the cables and how much of the damage was caused by the subsequent maneuvering to free the propeller of the cable.
14. Claimant has failed to prove by a preponderance of the evidence that the damage to the cables was caused by the negligence of the captain and those in charge of the tug.
15. Petitioner and the Tug Mars are not liable to claimant.
16. A decree may be submitted granting the petition for limitation of liability, and entering judgment in favor of the petitioner on the claim filed by Delaware Power and Light Company, with costs upon the claimant.