Navigazione Libera TSA v. Newtown Creek T. Co.

• Decision Date: 18 July 1938
• Docket Number: No. 218.,218.
• Citation: 98 F.2d 694
• Parties: NAVIGAZIONE LIBERA TRIESTINA SOCIETA ANONIMA v. NEWTOWN CREEK TOWING CO.
• Court: U.S. Court of Appeals — Second Circuit

98 F.2d 694 (1938)

NAVIGAZIONE LIBERA TRIESTINA SOCIETA ANONIMA v. NEWTOWN CREEK TOWING CO.^*

No. 218.

Circuit Court of Appeals, Second Circuit.

July 18, 1938.

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Alexander, Ash & Jones and Bigham, Englar, Jones & Houston, all of New York City (Edward Ash and Andrew J. McElhinney, both of New York City, of counsel), for appellant.

Loomis, Williams & Donohue, of New York City (Homer L. Loomis, of New York City, of counsel), for appellee.

Before L. HAND, SWAN, and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

Since we reversed the earlier decree in this case in 1936 which in effect awarded only nominal damages, there has been a second hotly contested reference before a new commissioner, resulting once more in a small award. The judge increased this very considerably and the claimant appealed: the libellant then filed assignments of its own. We shall not state again the main facts; they may be found in our former decision in The Tug Russell No. 3, 2 Cir., 82 F.2d 260. We take up the contested items of the award seriatim.

(1) The Expense of Installing the Bronze Propeller.

The first dispute is as to how much of the fluke on the iron propeller was broken. On this the witnesses differed. Martin was the surveyor for the elevator Oswego, which was not charged with any fault, and he must have been neutral: he saw the propeller and estimated that the fluke had lost twenty inches. Richardson was Lloyd's classification surveyor, also a neutral: he had seen the propeller and had noted a break of twenty-four inches, but could not remember whether that was the width or the length of the broken tip. The choice is between a broken tip eight, or twenty, inches long; and if it was eight inches long and twenty inches wide — to say nothing of twenty-four — the fluke itself had a curious shape, its whole length being seven or eight feet. Gebauhr, the witness on whom the claimant in particular relied, himself put the width at only twelve inches, and Richardson's note must have referred to the length. Two officers of the ship said that twenty inches had been broken off, and on the first reference the claimant's witness, Habig, swore that twenty inches had been broken off one fluke. Against all these were Gebauhr and Loeser, for Bagger did not see the propeller. Together they measured the width of the end and estimated the length of the lost tip. Their conclusion depended therefore upon the flare of the fluke; and we should suppose that one with a curve of long radius might well have a width of about twelve inches for a length of a foot. None of the witnesses went about the measurement in the simplest way: to measure a whole fluke and then the broken one. Possibly Martin and Richardson did, but they did not say so. Faced with this contradiction the commissioner chose Gebauhr and Loeser, of whom he had seen only Gebauhr. The claimant strongly presses upon us that we should treat his finding as "presumptively correct" (Admiralty Rule 43½, 28 U.S.C.A. following section 723) and so we must; but it is "subject to review", and we "reject" it because, like the district judge, we are "fully satisfied that error has been committed". However well Gebauhr may have appeared, he was willing to say that the loss of a tip of twenty inches from one of the flukes did not make the ship unseaworthy: all the other witnesses disagreed with that, including Bagger, the claimant's other expert. It is true that we should not disturb a verdict supported by his testimony, little as we might agree with it; but the finding of a commissioner has no such immunity; in the end we are responsible as well for the facts as for the law, and upon an issue where the testimony was so unevenly weighted we cannot accept a finding based upon the impression made by one witness even though the commissioner — mistakenly supposing that this added force to his finding — assured us how persuasive he found him. We think that the judge was therefore right in holding that twenty inches had been broken off, and that this made the ship unseaworthy.

To repair the damage done by the collision it was necessary to dock the ship, unship the old propeller, draw the tail shaft, stow the propeller, and in its place reship a bronze propeller which the ship carried as a spare. Richardson had discovered cracks in the stern tube nut and bushing at the survey, and to repair these it was also necessary to dock the ship, draw the tail shaft and do more of the same work necessary to replace the propeller. Thus there were a number of items of expense common to both repairs; and the question arises whether the claimant should pay these, or only so much as was added by unshipping and stowing the old propeller and shipping the new one in its place. The situation is not like that in Clyde S. S. Co. v. New York, 2 Cir., 20 F.2d 381, where the owner merely took the opportunity to make repairs which might have been delayed as they were not necessary to make the ship seaworthy. Nobody doubts that if two tortfeasors contribute to a single loss, each is liable in solido. Miller v. Union Pacific R. Co., 290 U.S. 227, 236, 54 S.Ct. 172, 174, 78 L.Ed. 285. This result is however scarcely logical so long as the injured person has the burden of showing that the tortfeasor whom he pursues caused the damage and how much he caused. On the other hand, since it is impossible to prove what share the act of either of the tortfeasors contributed, or whether it contributed any at all, if this prevailed, each would escape — an absurd result. To overcome this difficulty, the law imposes upon each tortfeasor the impossible burden of proof, contenting itself with limiting the injured person's total recovery to one indemnity. The situation is the same when one of the two contributing factors is not the result of an actionable fault: again, the single tortfeasor cannot be allowed to escape through the meshes of a logical net. He is a wrongdoer; let him unravel the casuistries resulting from his wrong. Cook v. Minneapolis, etc., R. Co., 98 Wis. 624, 74 N. W. 561, 40 L.R.A. 457, 67 Am.St.Rep. 830, is to the contrary, but very little of it remains after Kingston v. Chicago & N. W. R. Co., 191 Wis. 610, 211 N.W. 913, and we cannot agree with what does. Anderson v. Minneapolis, etc., R. Co., 146 Minn. 430, 440, 179 N.W. 45, is contra, and so is the Restatement of Torts § 432. The case at bar falls within this doctrine, for it was impossible to say that the nut and bushing contributed more to the common expenses than the propeller. The burden shifted to the claimant, as tortfeasor, and in such cases whoever has the burden, loses. We need not pass upon the supposititious case urged upon us of a ship in collision while already on her way to drydock, for here the ship would have sailed for Trieste as she rode. We do not therefore hold that a tortfeasor can never prove that such common expenses were not due to his fault; but we do hold with the judge that here they were on the claimant's account. Nor will we disturb the award made. The libellant paid the bill which a reputable shipyard charged it at a time when it must have known that recoupment was uncertain. That bill corresponded within reasonable limits with the yard's offer made in advance of the repairs, which the surveyors approved. In such circumstances expert testimony as to what should have been the charge is not of very great weight, certainly not, when as here it was disputed. The commissioner should have accepted the payments: we award $2,724.33.

(2) Cost of a New Bronze Propeller, or of an Iron Propeller in New York.

The libellant first claims the value of the bronze propeller. This amazing claim apparently rests upon the theory that since, if she had not had a spare propeller on board, her detention damages, while a new propeller was being procured, would have been more than the value of her bronze propeller, that value is a benefit for which the claimant should pay. By this ingenuous reasoning the ship would have had her old bronze propeller at Trieste, and the price of a bronze one to boot in the place of the old iron one. This claim deserves neither comment nor answer. Next it claims in the alternative the cost of an iron propeller in New York, on the theory that that alone would restore the ship to the condition in which she was at the collision. More is to be said for this, but not enough. Every...