In re Petition of Boat Demand, Inc., 57-28.

• Decision Date: 22 June 1959
• Docket Number: No. 57-28.,57-28.
• Parties: Matter of Petition of BOAT DEMAND, INC. as Owner of THE Fishing Vessel DEMAND For Exoneration From or Limitation of Liability.
• Court: U.S. District Court — District of Massachusetts

174 F. Supp. 668

Matter of Petition of BOAT DEMAND, INC. as Owner of THE Fishing Vessel DEMAND For Exoneration From or Limitation of Liability.

No. 57-28.

United States District Court D. Massachusetts.

June 22, 1959.

Joseph F. Dolan, William T. Conlan, Boston, Mass., for petitioner.

Richard G. Maloney, Robert F. White, Boston, Mass., for respondent.

ALDRICH, District Judge.

The petitioner's vessel Demand, having exploded and sunk at the Boston Fish Pier on February 3, 1957, its claim for exoneration and limitation of liability herein was denied because of the negligence of the owner. D.C., 160 F.Supp. 833. The claimants' allegations of damages were tried on May 13 and 14, 1959. It was stipulated that the damages to the respondent Harbor Oil Co., Inc., with respect to its vessel Narmada, were $3,616.88; that those to the Trawler Oil Corp. were $406.16 with respect to the vessel Gene and Don, and $811.75 with respect to the vessel Sea Bee; all to be without interest. The disputed items relate to the claims of the Boston Fish Market Corp., hereinafter termed respondent.

Respondent's first claim is that it is entitled to the cost of removing the sunken hull so as to free its wharfage space obstructed by the wreck. It is stipulated, somewhat ambiguously, that "the fair cost of raising the Demand and repairing her would far exceed any salvage that might be obtained if she were raised." On May 16, 1957, petitioner wrote letters to the United States Secretary of Defense, Washington, D. C., and the United States Army Engineers (Marine Division) in Boston, in which it recited that on February 3, 1957, the Demand sank at the Fish Pier; that the cost of raising and repairing her would be in excess of her value; that on February 7, 1957, petitioner had attempted to surrender her to the underwriters, but that the underwriters refused to accept, and that the petitioner and the mortgagee now abandon the vessel to the United States. Receipt of these letters was acknowledged. Petitioner asks me to rule that this constituted an abandonment and I so rule. Quite apart from these letters it is apparent that petitioner has abandoned the vessel.

Because of the abandonment petitioner contends that pursuant to general maritime law, as recognized by sections 15 and 19 of the Rivers and Harbors Act of 1899, 33 U.S.C.A. §§ 409 and 414, it is not liable to respondent for any damage caused by the presence of the wreck. This would clearly be correct if the sinking were not wilful or due to negligence to which the owner was privy. See, e. g., City of Newark v. Mills, 3 Cir., 35 F.2d 110, certiorari denied 281 U.S. 722, 50 S.Ct. 237, 74 L.Ed. 1140; In re Highland Nav. Corp., D.C.S.D.N.Y., 24 F.2d 582, affirmed 2 Cir., 29 F.2d 37. Respondent, however, contends that the principle which permits avoidance of liability by abandonment is exactly the same as that which underlies the Limitation of Liability Act, 46 U.S.C.A. § 183 (which, in effect, permits abandonment to the injured parties), and should extend no further. See Hagan v. City of Richmond, 104 Va. 723, 733-734, 52 S.E. 385, 389-390, 3 L.R.A.,N.S., 1120; Robinson, Admiralty Law § 121 (1939). I confess this has considerable appeal. Certainly if an owner deliberately scuttled his vessel in an improper place in order to be rid of her, he would not be permitted to avoid liability by claiming abandonment. In re Eastern Transp. Co., D.C.D.Md., 102 F.Supp. 913, affirmed sub. nom. Ottenheimer v. Whitaker, 4 Cir., 198 F.2d 289. Why should it be any different if he was guilty of actionable negligence? It is not disputed, if the order denying limitation and exoneration was correct, that petitioner is liable for provable damages to the wharf and building. Similarly, the obstruction of navigable water alongside a wharf is an actionable tort to the wharfowner. Brayton v. City of Fall River, 113 Mass. 218; see The Irving F. Ross, D.C.D.Mass., 8 F.2d 313. I would not be impressed with the distinction, were it advanced, that the explosion damage to the building occurred prior to the abandonment, and the damage to the use of the wharf was due not to the sinking of the vessel, but to the continuing failure to remove it, and that after the vessel had been abandoned the petitioner no longer owned it, and therefore the duty ceased. This merely avoids the issue. The real problem is whether the owner can be said to have a right, once he has committed an actionable tort, to wash his hands of the instrumentality by which the tort was committed and thereby absolve himself of the damages flowing herefrom.

The only case which petitioner cites which affirmatively supports its position is The Utopia, 1893 A.C. 492 (P.C.), in which there is dictum, at p. 498, to the effect that "the owner of a ship sunk whether by his default or not (wilful misconduct probably giving rise to different considerations) has not, if he abandon the possession and control of her, any responsibility either to remove her or to protect other vessels from coming into collision with her." (Italics supplied.) However, it is questionable how much vitality this dictum retains in the English courts. In the case of Dee Conservancy Board v. McConnell, 1938 2 K.B. 159 (C.A.), the court strongly questioned the correctness of the quoted passage from The Utopia, citing dictum to the opposite effect from The Crystal, 1894 A.C. 508, 516. In the Dee case the conservators of a navigable river and the owners of a wharf sued the owners of a ketch which had sunk by reason of the owner's negligence in such a manner as to obstruct navigation and block the wharf. Notwithstanding abandonment by the defendants, plaintiffs were allowed to recover the expenses of removing the ketch as "damages directly caused by the defendants' negligence." The court held that this result was not foreclosed by the decision in The Crystal, supra, which had held that the special statutory right of harbor authorities to recover the cost of wreck removals was limited by the owner's right to abandon. This statute was held to be merely supplementary to "common law" rights based upon negligence, which rights were not affected by abandonment. See also The Stonedale No. 1, 1954 2 All Eng.R. 170 (C.A.), aff'd, 1955 2 All Eng.R. 689 (H.L.); The Ella, 1915 P. 111; The Chr. Knudsen, 1932 P. 153. There are no American cases to the contrary, but rather a number which appear, in passing, to recognize the principle that loss without fault on the owner's part is a prerequisite to the termination of liability by abandonment. See, e. g., In re Highland Nav. Corp., supra; Orrell v. Wilmington Iron Works, Inc., D.C.E.D.N.C., 89 F.Supp. 418, 423-425, affirmed in part, reversed in part 4 Cir., 185 F.2d 181; Winpenny v. City of Philadelphia, 65 Pa. 135; Hagan v. City of Richmond, supra. Without ruling on their relevancy, I also find nothing to the contrary in the statutes of Massachusetts, G.L. c. 91, §§ 38-45, 45, 49. I rule that petitioner's abandonment does not defeat respondent's claim.

A number of questions arise with respect to damages. The wreck has not yet been removed. If this had been done forthwith, the cost would have been $11,200. Today it would cost $14,500. When vessels tie up at the dock respondent charges $1 a day for the space now preempted by the wreck. Respondent has a good deal of other space, and there was no evidence as to the demand for this particular space, or of the amount of custom, if any, respondent has had to turn away. On the other hand, this is a busy location. But the ceiling on this loss of use is $365 a year. Respondent further claims that the presence of the wreck causes inconvenience to other users of the dock. This I do not doubt, but in the absence of evidence that respondent lost any business as a result of this inconvenience, it is difficult to assess any monetary damage. The same applies to the annoyance, and possible inconvenience, that the presence of the wreck causes respondent.

The respondent has a 20 year lease on this property, commencing October 1, 1958, and subject to renewal. I doubt that if respondent were awarded $14,500 (or $11,200, subject to supplement by itself) it would make the "investment" of removing the wreck in order to clear space of a monetary worth, at the most, of $365 a year. Simple interest on $14,500 would approximate twice that amount, and there would still be the principal left. I...