The opinion of the court was delivered by: DUSEN
The Petition of S. C. Loveland Co., Inc., in exoneration from, or limitation of, liability as late owner and operator of the barge Fell Loveland, was filed in this court on April 15, 1955. Subsequently, answers and claims were filed by three parties, who withdrew their claims prior to November 1958,
at which time the petitioner asked the trial judge to proceed with decision in the case as to the remaining claimants because of inability to reach a settlement with them. In November and December 1958, Requests for Findings of Fact and Conclusions of Law were filed on behalf of the petitioner and the following claimants, who are the only three parties continuing as parties to this proceeding:
A. Florence Pipe Foundry and Machine Co. (hereinafter called 'Florence'), the owner of the pig iron loaded aboard the barge Fell Loveland at the time she sank (see Answer of Florence filed 6/15/55 as Document No. 5 in Clerk's file and Claim of Florence filed the same day as Document No. 6 in Clerk's file).
The trial of the case was held in February 1958. At the beginning of the trial, it was agreed that the issue of the amount of damages would be 'reserved and passed on to a Commissioner' (N.T. 5 & 6). After the testimony was transcribed, counsel for Chester and counsel for petitioner asked the trial judge for more time to file their Requests for Findings of Fact and Conclusions of Law since 'some headway was being made toward settlement of the issues.'
It proved impossible for petitioner to reach a settlement with Florence and Quaker and the above-mentioned Requests, together with supporting briefs, were filed in the last two months of 1958. Oral argument was heard on December 29, 1958.
The restraining order filed April 14, 1955, as amended May 14, 1956, will be further amended in accordance with the terms of Admiralty Rule 51 to make clear that it does not bar the institution of S.C. Loveland Co., Inc., etc., v. Florence Pipe Foundry & Machine Co., No. 59 of 1958 in Admiralty, as suggested at pages 8 and 9 of the brief filed by petitioner in that action on December 24, 1958.
1. All the requested Findings of Fact of petitioner, with the following four modifications, are adopted as Findings of Fact of the trial judge:
(a) There is added at the end of paragraph 3: '(This sentence is amplified and qualified by Finding of Fact 5 of the trial judge.)'
(b) Sub-paragraph 5(e) is reworded as follows: 'All claims for loss and/or damage and/or expense against petitioner were waived by Florence 'except for General Average, Sue and Labor and Collision Liability' (see paragraph 10).' (See Exhibit L-3.)
(c) Paragraph 7 is modified by inserting at the beginning of the sentence 'On the night of March 11, 1955' and by deleting the first word, 'and,' in the second line.
(d) Paragraph 8 is modified by adding at its end the words 'for carriage of 1000 tons of pig iron from Chester, Pa., to Florence, New Jersey.'
2. All the requested Findings of Fact of Florence Pipe Foundry and Machine Co. (hereinafter called 'Florence'), except for paragraphs 5, 6, and 8, and with the following added at the end of paragraph 3, are adopted as Findings of Fact of the trial judge: '(This sentence is amplified and qualified by Finding of Fact 5 of the trial judge.)'
3. Subsequent to World War II, the barge Fell Loveland was converted
for use solely on the inland waterways, since it became uneconomical to operate barges of her size in the coastwise trade.
4. The Fell Loveland carried the following loads in excess of 1000 tons between Chester, Pa., and Florence, N.J., prior to March 10, 1955, and petitioner's accountant had records showing that it was paid freight on the basis of these loads (Exhibits L-37 and L-32):
Date Bill Sent To
Weight In Date of Shipment Petitioner by Florence
Gross Tons (L-37) (L-32)
1012-1015 November 30, 1954 December 13, 1954
1016-1020 December 29, 1954 January 7, 1955
1017-1022 January 6, 1955 January 14, 1955