The opinion of the court was delivered by: EGAN
It was tried to a judge without a jury over a period of three days. It was well presented by able counsel on both sides. Briefs have been filed and argument has been heard and it is ripe for decision.
The Court makes the following
1. Libellant resides at Milford, Delaware, and is 48 years of age and has a life expectancy of 24 1/2 years.
2. On September 9, 1955, the date of the accident, and for about five years prior thereto, libellant was employed by respondent.
3. Respondent is a Pennsylvania corporation engaged in the general contracting business, including the building of bridges on, along and across navigable streams, and engages in dredging operations in connection therewith.
4. On the date mentioned, and in addition to the two carfloats in question, respondent owned the dredge Biff and the workboat or barge Harry, Jr.
The Biff was registered under the U.S. Customs Service but the Harry, Jr. was not. Registration of a carfloat or barge is unnecessary where used only for freight in the harbor.
5. On the date mentioned, libellant's duties were twofold: As Chief Engineer of the dredge Biff they consisted of maintaining and operating the engines which worked the cutting and suction equipment and the various pumps necessary to prime the engines and cool them; maintaining and operating the winches controlling the lines which enabled the dredge to 'walk' at the site of operations by means of spuds; secondly, as Master of the Harry, Jr. they were to tow the dredge Biff from place to place, and to transport and deliver materials used in dredging operations. At the time in question, the dredge Biff was working in navigable waters back of Atlantic City, N.J. (N.T.139).
6. On or about July 19, 1954, respondent purchased from the surplus property of the Pennsylvania Railroad two carfloats known as Penna. Railroad No. 585 and Penna. Railroad No. 586, respectively (herein for brevity 585 and 586). They were purchased on the premise that they might be of use to respondent if it obtained a job on the river, with no specific job in view. The carfloats were each approximately 175 to 180 feet long and 30 to 35 feet wide.
7. At the time of their purchase, they were tied up at the old ferry boat wharf in the Delaware River at Camden, New Jersey. Both carfloats were towed from the wharf at Camden by Sheridan Transportation Company, which is not involved in these proceedings, up the Delaware to an old Warner Company dock in a basin or lagoon connected by a channel or passage with the Delaware near Tullytown, Pennsylvania. After they were tied up at the Warner Company dock, they were never again moved by human hands until some time after a violent storm struck in August 1955.
8. Prior to this storm and in August 1955 while the two carfloats were moored to the Warner Company dock, both carfloats had taken on water and the crew of the Biff, including libellant, were sent to the scene to work on them and to raise, repair and restore them. A 3-inch pump was being used and 585 was almost pumped dry and preparations were made to pump out 586.
10. When the damage caused by the storm had been surveyed, then, on or about August 31, 1955, the crew of the Biff was again dispatched to the carfloats. Carfloat 586 was pumped dry and floated ...