The opinion of the court was delivered by: FORMAN
Libelant sues for damages sustained by the derrick lighter J. R. McDonald while berthed in respondent's basin at Edgewater, New Jersey.
Some time in October, 1939, the libelant communicated with respondent's representative and superintendent of the basin, Edwin Mewhinney, with regard to storage of a boat or boats, and more particularly with reference to the rates therefor. About three weeks thereafter on Sunday, November 12, 1939 the J. R. McDonald, then lying at the D. & H. Basin, Weehawken, N.J., was removed to respondent's basin, being towed by the tug Service which was owned and operated by William Casey. The libelant and two hands were on board the J. R. McDonald.
On April 20, 1940, during a storm, the J. R. McDonald was damaged. During or following this storm some wreckage from a boat, apparently the siding of a vessel, several feet wide and approximately 100 feet long appeared with one end resting on the beach or curved end of the horsehoe, and projecting approximately at right angles to the port side of the J. R. McDonald.
Extending upwards from the plane of the siding, and at right angles to the end of this siding, were posts or "knees" about two feet in height, spaced at uniform intervals. Eight of these knees or fragments thereof are visible. The bilge log of the J. R. McDonald rests atop or on the eighth knee.
A survey of damage was called by libelant which was held on May 17, 1940. The report of this investigation signed in behalf of libelant and respondent without prejudice states that the survey was made while the lighter was lying on the beach "with her bottom on her port side forward impinged on a wreck", and continues: "* * * This wreck being the side of a barge consisting of side planking with king posts & intermediate frame timbers and beam knees protruding upwards. Knees are impinged upwards into the Bilge log and bottom of lighter. Lighter is twisted and strained with its port side up eighteen inches forward and knees in hold are started and pulled in fastening. Fourteen bottom planking found off on port side forward."
The libel claims damage for injuries sustained to the bottom of the J. R. McDonald by virtue of its impingement upon the knees projecting from the wreckage, plus the cost of removing her to dry dock.
Posted on the outside of respondent's office building near its basin was the following notice:
"We notify all Owners and Captains of any type of Boat, while stored or berthed in this basin, that we will not be responsible for any Damage, Theft or Fire or be accountable for any line attached to boats.
"Boats are Berthed at Owners Risk
"Luckenbach Terminals, Inc."
Inside the office was posted another notice consisting of two pages in pamphlet form with printed matter on opposite sides of the first page. This notice gave rates for storage (a flat rate was indicated for the winter season -- November 1 to April 30, inclusive) of vessels in the basin with limited liability and different rates for such storage with unlimited liability. Under either scale notice of damage in writing was to be given in ten days.
Libelant denies that prior to the damage sustained he saw the notice with reference to limited and unlimited liability. In addition, there was considerable dispute as to whether all three pages of this pamphlet notice were displayed. Furthermore, libelant does not assert that the ten-day notice ...