The opinion of the court was delivered by: GRIM
A. In Respect to Limitation:
1. On February 20, 1948, at or about 4:13 A.M., Steamtug Mars collided with an obstruction about 100 feet off the cable pier of the Delaware Power and Light Company located on the west bank of the Delaware River at Pigeon Point, Delaware. At the same time, a break occurred in the cable power lines laid on the mud bottom in the rea where the tug encountered the obstruction.
2. When the Delaware Power and Light Company, which owned and operated the electric power facilities of which these cables were a part undertook repair operations to restore service, it was found that one of the cables had been severed and others had been damaged in such a way as to suggest that they had been in contact with the keel of a vessel.
3. Delaware Power and Light Company has filed its libel in this district against the present petitioner in personam and against the tug in rem, demanding damages in the amount of $ 40,000 arising from the said accident.
4. Within six months after receiving notice of the claim, William H. Martin filed the present proceedings as owner of the tug for exemption from and limitation of his liability. An order was duly issued by this court to stay all pending suits, and referred the petition to a Commissioner for the purpose of receiving claims and ascertaining the value of the tug and her pending freight. The petitioner entered an ad interim stipulation and bond in the amount of $ 12,000.
5. The Delaware Power and Light Company has filed its claim in the limitation proceedings with a demand for damages in the amount of $ 40,000. The claimant has also filed its answer to the petition, denying the right of limitation by reason of the alleged privity and knowledge of the petitioner.
6. The Commissioner thereafter heard testimony and filed his report with the court fixing the value of the tug and her freight pending at the time of the accident in the sum of $ 15,198.50 with interest to run from the date of the accident. This finding has been confirmed by the court.
7. Testimony has been heard by this court on the issues raised by the petition and answer, and also on the claim presented by the Delaware Power and Light Company. No other claims were filed.
8. The pleadings did not dispute the ownership of the tug by William H. Martin. The evidence showed that he was the enrolled owner of the vessel from September 4, 1947, until he sold the tug on February 21, 1949. The certificate of inspection issued for the tug on September 23, 1947, which was in effect on the date of the accident, showed that William H. Martin was the registered owner. The vessel was operated and maintained by P. F. Martin, Inc., which collected all profits earned by her operation. Mr. Martin did not receive any express rental for the use of the tug, but it appeared that he was a stockholder in P. F. Martin, Inc., and served as its vice-president with nominal duties for which he received an annual compensation of $ 15,000. Under the pleadings and the evidence, the court finds that William H. Martin was the owner of Tug Mars on the date of the accident.
9. Although the petitioner occasionally acted as 'dispatcher' of tugs for P. F. Martin, Inc., he did not participate in the assignment of Tug Mars to the operation which she was performing at the time of the accident.
10. The hull and engines of the tug were sound and in good operating condition at the time of the accident. Her steering controls and compass were in proper working order. She was furnished with charts and a ship-to-shore radio. There was no fathometer aboard, but it was not shown that this specialized type of equipment was required for her normal operations. She was fully equipped with fuel, stores and provisions for the trip from Philadelphia to Artificial Island and return. She carried her maximum number of duly qualified officers and crew, although her certificate of inspection did not require a full crew when the vessel was being navigated not more than 12 out of 24 hours in any one day, and the tug was not navigated for more than 8 1/2 hours on each of the days she was employed on this trip. The court finds that The Mars was sound, staunch and strong, and properly manned, equipped and supplied for the voyage, and that she was fully seaworthy.
11. Tug Mars had docked carfloats at the Reading Company pier south of the claimant's cable pier on numerous occasions prior to the date of the accident without encountering any difficulty. Captain Osborne, who commanded The Mars on this trip, had taken other tugs on the same operation many times prior to this accident, and he was a duly licensed first class pilot and master of harbor tugs. The court finds that the operating company and its employees were not negligent in assigning Tug Mars to this operation under the command of Captain Osborne.
12. In the course of docking the carfloat at the pilings on the upriver side of the Reading Company pier, Captain Osborne had to change the position of the tug in order to hold the after end of the carfloat against the push of the flooding tide while her lines at that end were being secured. Due to the comparatively narrow space between the exposed side of the carfloat and the nearest portion of claimant's cable pier, which was only 147 feet distant from the pilings, the 99-foot tug maneuvered astern and was carried upriver to the point opposite the cable pier where the cables were laid on the mud bottom.
13. The facts of the accident as disclosed by the testimony fail to show that the petitioner, William H. Martin, was connected with the acts or conditions which brought it about, either in the sense of knowledge or authorization, or immediate control of them, or through any participation in them.
14. Even if the resulting contact with and damage to the cables occurred from Captain Osborne's negligent operation of the tug, such negligence on his part would not involve the privity and knowledge of the petitioner.
B. In Respect to Liability:
15. The tug and tow arrived at Pigeon Point about 4 A.M. on February 20, 1948. The weather was fair, it was still dark, and the tide had started on the flood, which resulted in the ...