the inability to procure tugboats to tow the vessel to the pier. This notification was confirmed in writing by Mr. Smith in a letter which he addressed to the respondent on November 21, 1945, which the respondent claims did not come to its attention until November 23, 1945, the intervening November 22, 1945, being Thanksgiving Day.
Mr. Smith also testified that he made efforts to secure tugboats for the vessel from three tugboats for the vessel from three towboat firms and that he also endeavored to secure a pilot for the vessel, all to no avail on account of the strike. He further gave evidence that from his personal observations on the Fort Mifflin wharf of the respondent, tankers of the type of the vessel always docked with the assistance of tugs.
The master of the vessel testified by deposition on the part of the libelant that his owner's agents were notified as he brought the vessel to the Delaware Breakwater, that he expected its agents to provide the vessel with pilot and tugs to dock it; that he was unfamiliar with the Fort Mifflin terminal, believing its length to be only 250 feet; that he was unaware of the depth of the water at the respondent's wharf although he assumed his charts would show it; that he would not under any circumstances assume the hazard of taking the vessel to the wharf without tugs and in any event he held no license as a pilot of the Delaware River.
Controverting libelant's evidence respondent made it appear that its Fort Mifflin terminal wharf ran about 950 feet broadside of the river and that the vessel was less than 600 feet in length. Her mean draft was 29' 5' as she lay at the anchorage and charts indicated that there was no hazardous lack of water for the docking of the vessel. There were no abnormal weather conditions present.
Mr. Webb conceded that Mr. Smith had talked with him by telephone on Sunday, November 18th, at about ten in the morning and that he reported the arrival of the vessel and her location in the Mantua anchorage as well as his difficulty in procuring tugboats due to the strike. No request was made by Mr. Smith for respondent to furnish towboat service.
Both Mr. Webb and Captain Nelson, Assistant Port Captain of the respondent, testified that tankers of the type of the vessel were often docked at the Fort Mifflin pier by their masters or by pilots without the assistance of tugboats.
The respondent also introduced the evidence of Captain Campbell, President of the Pilot's Association with many years experience as a Delaware River Pilot. He testified that it was not necessary to employ tugboats to assist vessels to the wharf of the respondent; that since it was parallel with the river it was easy, given knowledge of tide and wind, to take a vessel to the wharf and dock her; that he knew that the respondent did on occasions use tugs to assist vessels to the wharf but this was only done to gain time in unfavorable tide situations.
He also testified that during the tugboat strike in question 60 pilots in the association were available for assignment to vessels during all 24 hours of the day and that despite the strike pilots took vessels close enough to docks during the strike to get a line to the wharf although they did not actually dock a vessel and that this was substantially in accord with their usual custom and practice.
The disinterested testimony of Captain Campbell alone is convincing that the respondent had furnished a safe berth at which libelant could have docked the vessel with the exercise of only reasonable diligence. The libelant and those for whom it was responsible simply did not exert themselves sufficiently. The libelant was chargeable with the master's lack of qualification to take the vessel farther up the Delaware River than from the Overfalls Lightship and the evidence appears conclusive from Captain Campbell's testimony that the master's deficiencies in this respect could have been readily supplemented. The fault for the delay was upon the libelant. Since the loading and discharging was accomplished well within the 72-hour allowance for lay time, otherwise, there can be no recovery for demurrage as demanded in the first count of the libel.
The claims for attorneys' fees and costs under the second count of the libel must fall with this disposition of the claim for demurrage under the first count.
A decree should be taken in favor of respondent dismissing the libel.