In re Howser (227 F. Supp. 81, 1964)

WARLICK, District Judge.

This proceeding for limitation of liability (46 U.S.C.A. § 183 et seq.) comes about from a boating collision which took place on April 11, 1962, on what is commonly called “Lake Hickory”, a body of water which came into existence when a dam was built by the Duke Power Company on the Catawba River, at the old Oxford Ford site. The accident resulted when petitioner’s boat, an Owens Flagship Flying Bridge Express Cruiser, of 185 horsepower, was in collision with a 16 ft. mahogany custom built outboard motorboat of 35 horsepower, owned and operated by Dr. S. J. Potts of Taylors-ville, North Carolina.

The petition for limitation of liability was filed on May 21, 1963, in which, among other things, it was set out, that petitioner, James E. Howser, who individually trades under the style name of 'The Howser Boat Company, of Charlotte, North Carolina, on the 11th day of April, 1962, was requested by one James Keever to bring such boat to Lake Hickory, where it could be seen and examined. Obedient thereto, petitioner brought such boat from the place where it was moored on the Wateree River in South Carolina, using a trailer, to Charlotte, and then on a trailer to Lake Hickory, and to a place on such lake known as Taylorsville Beach, in Alexander County, in the Western District of North Carolina.

Whereupon petitioner’s boat was launched from the trailer into the waters of the Catawba River, and while petitioner was operating said boat he decided to check the engine, and thereupon requested an individual known as Jack Harris who was in the boat with petitioner, to take the helm. Then petitioner went to the “afterpart of the boat” and sat down on the after deck to examine its engine. While Jack Harris was operating the boat it collided wtih the boat of Dr. Potts, knocking Dr. Potts from his boat into the water, and causing all of his personal property to be cast into the water; and ultimately those in the vicinity were able to rescue him from the Lake.

That on the same day petitioner’s boat was sold to James Keever for $4,000, the alleged value of petitioner’s interest in said boat as claimed.

Petitioner further alleges that the collision was in no wise caused by any fault •on his part, but that such was attributable directly and solely to the negligence •of Dr. Potts, which allegations of negligence are set out under twelve numbered .sections of the petition.

I was asked to sign certain orders, all ■as prayed for in the petition and more particularly an injunction restraining prosecution of all suits, actions, and proceedings, already begun for damages sustained, all as is prescribed in Rule 65(a)