Bleakley Transp. Co. v. Colonial Sand & Stone Co., 345

• Decision Date: 07 June 1957
• Docket Number: Docket 24360.,No. 345,345
• Citation: 245 F.2d 576
• Parties: BLEAKLEY TRANSPORTATION CO., Inc., as owner of THE scow HARVARD, Libellant-Appellant, v. COLONIAL SAND & STONE CO., Inc., Respondent-Appellee, and THE Oil Tanker S. D. MADDOCK, Impleaded.
• Court: U.S. Court of Appeals — Second Circuit

245 F.2d 576 (1957)

BLEAKLEY TRANSPORTATION CO., Inc., as owner of THE scow HARVARD, Libellant-Appellant, v. COLONIAL SAND & STONE CO., Inc., Respondent-Appellee, and THE Oil Tanker S. D. MADDOCK, Impleaded.

No. 345, Docket 24360.

United States Court of Appeals Second Circuit.

Argued May 10, 1957.

Decided June 7, 1957.

Purdy, Lamb, & Catoggio, New York City (Edmund F. Lamb, New York City, of counsel), for libellant-appellant.

Macklin, Speer, Hanan & McKernan, New York City (Leo F. Hanan, New York City, of counsel), for respondent-appellee.

Before CHASE, HINCKS and LUMBARD, Circuit Judges.

CHASE, Circuit Judge.

The appellant's wooden scow, Harvard, having a length of one hundred feet, a width of thirty-six feet and being ten feet deep, arrived fully loaded with sand and gravel consigned to the appellee at the appellee's dock at Eastchester Creek on August 20, 1948. Her unloading was not begun until the next afternoon and meanwhile she lay aground on an uneven bottom at the dock and two keelsons in Section 7, the fourth and fifth from the port side, were cracked and some crushing occurred. When she was unloaded, she was put in drydock and a survey, held on August 24, 1948, set the cost of new keelsons to replace the damaged ones at $630.00 but, because the removal and replacement of many undamaged bottom planks and crossbraces, as well as other work, was needed to remove the keelsons and put in new ones, the estimated expense of repairs by keelson renewal was $8,903.00. Representatives of the appellee attended the survey but didn't sign it. They took the position that the scow could, and should, be restored to a condition as good for all practical purposes as before without replacing the keelsons. The scow was used until October without any repairs; then was repaired at a cost of $938.12 without the installation of new keelsons; and was shown to have been, thereafter, as serviceable as before the damage up to the time of the hearing, a period of about seven years.

After the suit was brought, the Oil Tanker S. D. Maddock was impleaded, being accused of creating swells and suction when she passed the scow when it was at the dock and causing damage, but the impleading petition was dismissed and no question is raised as to that.

After the interlocutory decree for the libellant was entered, there was a reference to a commissioner to find the amount of the damages. He reported that "* * * the October reinforcements restored the Harvard to substantially the same degree of strength, seaworthiness and practical serviceability as before the stranding; that these reinforcements in fact constituted permanent, and not temporary repairs; and that they did not leave the scow inferior for practical use as a `profit-earning machine.'" He also found that there was some depreciation on account of repairing, without replacement, of the keelsons but was unable to determine its amount as witnesses for the appellant were all, but one, unwilling to testify as to such a speculative matter in terms of money or percentage of diminution of previous sound market value. The witness who did testify as to the amount of depreciation at first set it at $6,500.00 and then, while explaining his method for determining depreciation, made some computations and raised the amount to $7,200.00. He was asked whether his method for determining depreciation which he had described was a "well-known method amongst surveyors and appraisers, or is that just your private method?" His answer was, "Well, based on what I have heard in this case, the two days I have attended here, hearing other witnesses, I would have to agree, since no one else had the courage to offer a method, that it is my individual method, based on my experience, because I knew they all shied away from it."

The commissioner characterized his method as one of "pure speculation" and the record does, indeed, indicate that it was. Moreover, the commissioner who saw and heard the witness testify, was in a good position to determine whether this evidence was worthy of credence and nothing appears to warrant interference with his judgment, accepted by the trial court, in respect to it. That leaves the record barren of evidence on which to find the amount of depreciation.

The owner of a vessel damaged by the negligence of another is entitled to recover from the wrong-doer the reasonable cost of its restoration to as good condition as before the damage, save only that such expense does not exceed the before-damage value, and this is so even though no repairs, or only partial repairs, are actually made. The Baltimore, 8 Wall. 377, 75 U.S. 377, 19 L.Ed. 463; O'Brien Bros. v. The Helen B. Moran, 2 Cir., 160 F.2d 502; Pennsylvania R. Co. v. Downer Towing Corporation, 2 Cir., 11 F.2d 466; The Ames & Carroll No. 20, 2 Cir., 66...