The opinion of the court was delivered by: KRAFT
The claims here involved arose from a collision on February 4, 1957, about 1:16 A.M. between the S. S. Waltham Victory and libellant's wrecked and beached carfloat off the southwest end of Petty Island, in the Delware River, in the Port of Philadelphia.
On December 15, 1959, we ordered that the issues of liability be severed from the issues of damages, and that the liability issues be first tried. The action was so tried, and from the pleadings and the evidence, in which there was little conflict, we make the following
1. At all times material hereto, Reading Company, libellant and cross-respondent, (hereinafter called Reading) owned, operated and controlled Carfloat No. 23, an undocumented, unmanned and unpowered three-track carfloat of steel construction, 250 feet long, 39 feet beam and 9 feet 6 inches deep, which was used for transportation of railway cars in and around the Port of Philadelphia.
2. On January 26, 1957, the carfloat, while under tow in the Delaware River near Port Richmond, fully loaded with 13 full hopper cars of coal and 1 cement car, collided with a vessel not here involved, and was subsequently beached by Reading's tug 'Schuylkill' off the lower or southwest end of Petty Island to prevent her from sinking.
3. The bow compartments of the carfloat were flooded as a result of the collision, and she was beached stern to the shore with the bow extending out at right angles from the shore toward the dredged channel.
4. The manager of Reading's Port Richmond Terminal made arrangements with Merritt-Chapman & Scott Corporation, impleaded respondent and cross-respondent, (hereinafter called Merritt-Chapman) for the removal of the hopper cars and salvage of the carfloat. It was agreed that Merritt-Chapman should perform its work entirely on a straight time basis between 8 A.M. and 5 P.M., Mondays through Fridays, without overtime cost to Reading, and would be paid on a daily rate of hire basis. Reading undertook the removal of the coal from the cars.
5. The arrangements between Reading and Merritt-Chapman made no express provision for the lighting or marking of the beached carfloat during the salvage operations.
6. Salvage operations began with the arrival of Merritt-Chapman's derrick barge 'Commerce' on Saturday, January 26, 1957. They were conducted each working day thereafter until Friday, February 1, 1957, when they were suspended for the week-end with the intention of resuming operations on Monday morning, February 4, 1957.
7. During the period from Saturday, January 26, 1957, to Friday, February 1, 1957, the derrick barge Commerce remained moored to the starboard side of the carfloat both day and night, except on Wednesday night, January 30, 1957, when she was removed, to return the following morning. Actual operations were carried on only by day, but during each night at the salvage site the Commerce was illuminated and a watchman remained aboard. On the evening of February 1, Merritt-Chapman removed its dredge for the weekend, leaving the beached carfloat without lights.
8. At all times material hereto, pope & Talbot, Inc., respondent and cross-libellant, was the owner pro hac vice and operator of the S. S. Waltham Victory, a turbine-propelled ship of 7,635 gross tons, 439.1 feet long and 62.1 feet beam.
9. The S. S. Waltham Victory, with a draft of 13 feet forward and 11 feet 8 inches aft, was on a voyage from Providence, Rhode Island, to Pier H, Port Richmond, Philadelphia. The vessel was being navigated by Captain Bamforth, an experienced, qualified and licensed coastal pilot. When the Waltham Victory passed under the Benjamin Franklin Bridge at 12:42 A.M., February 4, 1957, about a mile below the place of its subsequent collision with Reading's sunken carfloat, it was in the middle of the dredged channel. From this point to the place of collision, there were no buoys to mark the edge of the dredged channel.
10. Reading's wrecked, unlighted carfloat was first sighted by Pilot Bamforth and Captain Petterson, bearing slightly on the starboard bow of the Waltham Victory when it was about half a ship length off. The lookout sighted it only at the instant of the collision. in an effort to avoid the partially submerged wreck, the pilot ordered hard left and full ahead to swing the bow clear, but before the orders could be executed the Waltham Victory collided with the offshore end of the submerged carfloat and the railroad cars upon it.
11. The Waltham Victory was then put full astern and came free of the wreck, but the flood tide pushed the vessel to the right toward Petty Island where she rested against the bank until the flood tide gave her enough water to float free.
12. The collision occurred at a point about 175 to 200 yards eastwardly from the easterly edge of the dredged channel and where the water was of sufficient depth for the Waltham Victory to navigate. At the time of the collision, 1:16 A.M., the ...