Boston Sand & Gravel Co. v. United States

• Decision Date: 13 December 1926
• Docket Number: No. 2223.,2223.
• Citation: 16 F.2d 643
• Parties: BOSTON SAND & GRAVEL CO. v. UNITED STATES.
• Court: U.S. District Court — District of Massachusetts

16 F.2d 643 (1926)

BOSTON SAND & GRAVEL CO. v. UNITED STATES.

No. 2223.

District Court, D. Massachusetts.

December 13, 1926.

Foye M. Murphy, of Blodgett, Jones, Burnham & Bingham, of Boston, Mass., for libelant.

George R. Farnum, Asst. U. S. Atty., of Boston, Mass.

BREWSTER, District Judge.

The libel in this cause was brought under special act of Congress (42 Stat. 1590) to recover damages resulting from a collision between the United States destroyer Bell and the steam lighter Cornelia, which occurred August 9, 1918, in Boston Harbor. The Circuit Court of Appeals, on appeal, found both the Bell and the Cornelia at fault, and decreed divided damages. 7 F.(2d) 278. The libel was referred to Fitz-Henry Smith, Jr., Esq., as commissioner, to determine the amount of the damages, and to report thereon to this court. He has fixed the damages at $91,084.68, and reports that the libelant is entitled to recover $45,542.34.

The cause comes before the court upon libelee's exceptions thereto and libelant's motion to have the report confirmed. Libelee assigns numerous grounds upon which it bases its exceptions. These may be grouped under two heads:

First. Those relating to the finding of the commissioner that the Cornelia was a constructive total loss.

Second. Those relating to the finding of the commissioner that, at the time of the collision, the value of the Cornelia was $95,000.

In his report the commissioner fully considers the evidence upon which he bases both of these findings. Respecting the finding that the Cornelia was a constructive total loss, it appears that, soon after the collision, the lighter was beached on what is known as "Faun Bar" outside of Deer Island. At high tide her deck was three or four feet under water. The bottom of the harbor at that point was full of boulders of various sizes, some being as large as six or seven feet high. The libelant carried insurance on the vessel, and it abandoned her to the insurance company, which, in turn, sold the wreck as it lay on the bottom for $5,000. The commissioner awarded the damages according to the rule of damages obtaining in cases of total loss, crediting, however, to the value of the vessel at the time of the collision the sum of $5,000 received from the sale of the wreck.

If it could be said that the Cornelia was a total loss, actual or constructive, the measure of damages adopted by the commissioner was the correct one. Smith et al. v. Condry, 1 How. 28, 11 L. Ed. 35; The Ann Caroline, 2 Wall. 538, 17 L. Ed. 833; The Baltimore, 8 Wall. 377, 19 L. Ed. 463; The Reno (C. C. A.) 134 F. 555.

It does not necessarily follow, however, that, because the Cornelia sank as a result of the collision, this rule of damages is to be applied. The Admiralty Law casts upon the owner a duty to exercise reasonable care and attention to minimize the loss. He is required to make reasonable efforts to ascertain whether the vessel can be saved, and if, as a result of such efforts, he finds that it is reasonably possible to salvage her, and that the expense of raising and restoring would not exceed her value when restored, the owner would not be justified in abandoning the vessel and exacting full compensation for her value. The Baltimore, supra; The Reno, supra; The Ernest A. Hamill (D. C.) 100 F. 509; The Havilah (C. C. A.) 50 F. 331.

It is the contention of the libelee that the owner did not exercise the reasonable care and diligence required of it in its endeavors to avoid a total loss.

It appears from the findings of the commissioner, which are abundantly supported by the testimony, that the officers of the libelant company visited the Cornelia on the day of the collision, and, believing that she could be easily floated, they arranged for the patching of the hole in her bow which had been made by the Bell; hired a pump, and on the evening of the same day, at low water, the marine superintendent of libelant undertook to get her afloat. After working two hours, it was found that water was coming in about as fast as it was being pumped out, and further efforts were suspended, to be renewed the following morning.

On the next morning the superintendent found, on arriving at the wreck, that the wind had turned east, and that a sea was running, rendering it impossible to continue his operation. Parts of the after house had been washed away, and it then seemed to the...