The William Chisholm

• Decision Date: 13 April 1907
• Docket Number: 1,620.
• Citation: 153 F. 704
• Parties: THE WILLIAM CHISHOLM. THE OCEANICA. LEHIGH VALLEY TRANSP. CO. v. CHISHOLM et al.
• Court: U.S. Court of Appeals — Sixth Circuit

153 F. 704

THE WILLIAM CHISHOLM. THE OCEANICA. LEHIGH VALLEY TRANSP. CO. v. CHISHOLM et al.

No. 1,620.

United States Court of Appeals, Sixth Circuit.

April 13, 1907

An interlocutory decree was granted in the above-entitled cause adjudging the Oceanica solely in fault for the collision between that steamer and the steamer William Chisholm and dismissing the original libel. It was referred to the clerk to ascertain and report the damages suffered by the cross-libelants. The commissioner filed his report November 23, 1904. The libelant has filed nine exceptions to the report.

The first exception includes the allowance to the owners of the Chisholm for repairs to the hull of the steamer and compensation for the loss of her use during detention for repairs necessitated by said collision.

The second exception is directed specifically to the allowance of the item of repairs, $19,040.80, which is embraced in the first exception sub nom. 'repairs.'

These may be considered together. The reasonableness of the bills for the work done, and the fact that they were paid, is not questioned. It is denied that all the repairs made were necessitated by the collision. The inquiry is, therefore Were they made necessary by the collision, or were they in part in renovation of old injuries to the bottom of the Chisholm done prior to the collision. Upon this question there is a conflict of testimony. It is claimed by the libelant that a large part of the repair bill was for injuries previous to the collision. While it is conceded that there were patches on the bottom plates before the collision the cross-libelants' testimony is that, by settling on the boulders when she sank, these and other plates were impaired by the sinking so as to necessitate removal and rerolling, and that the work done to the bottom and the repair bill therefor is limited strictly to the reparation of the collision injuries and those consequent thereon by the sinking of the Chisholm after the collision. The work of repair, inclusive of the necessary removal of injured plates required of necessity the repair of beams, angle irons, and other parts and pieces, and their repair and replacement or the substitution of new parts or pieces where required. Without discussing the proofs at length, it is sufficient to say that the evidence is not sufficient to overturn the commissioner's conclusions. These exceptions are overruled.

The third exception is grounded on the allowance of $1,660.05 for lay days in dock while the Chisholm was under repair for the damages to her hull caused by the collision and sinking. The criticism on this item is that it assumes that the work of repairing the steamer's bottom was part of the collision damage, and that but seven days at the utmost were required to repair the break in the vessel's side. This assumption is not justified by the proofs. The steamer was laden with iron ore, and she was greatly injured when she settled on the boulders at the place of sinking. The testimony mainly relied upon that challenges the manner and time in which the repairs were done while the steamer was in dock is that of Mr Oldham, but his views are not sufficient to override the conclusion reached by the commissioner on the testimony of other equally competent witnesses that it was properly and expeditiously done. The attack upon the order in which the work was done is rather upon the methods and judgment of the company which repaired the steamer. If the bottom was damaged, which is found to be the case, in what order it and other repairs should be made was for the company's determination, and not for the owner of the steamer to decide. Libelant's witness McDowell had no knowledge of the injuries and the repairs necessitated by the collision, except what he saw in the survey. McDowell's deposition, pp. 26, 27. On page 21 he expresses the opinion that $19,000 allowed by the survey 'was sufficiently high to cover all the repairs called for by the survey,' and, on page 17, that to repair the bottom it would be necessary to have the vessel in the drydock-- 'longer in the dock for the repairs to the bottom-- considerably longer' than would be required for the repair of the top sides. While it may be true that the cost of repairs exceeded the estimate made by the surveyors, it is well known that a survey of this character is merely an estimate and frequently below the cost of the work.

The claim that the repairs to the bottom were not caused by the collision, and that the vessel was in dock longer than necessary, is disproved by the proofs.

It is further objected that the testimony is insufficient to sustain the commissioner's finding as to the extent and cost of the repairs. The degree of evidence insisted upon by libelant is impracticable and unnecessary. It would be impossible for any witness to testify that particular plates, beams, angle irons and other material were put in certain places, or to identify each item charged for as used in reparation of the injury. The survey recognizes most of them as needful for that purpose, and it is sufficient that the shipowner paid in good faith the bill rendered for the work. The presumption is that the work was done bona fide. Fraud is not to be presumed, but must be established clearly. Over six years had elapsed before this testimony on the reference to ascertain and report the damages was taken. This delay was largely caused by libelant. The Chisholm had been repaired entirely before the cause was tried. It would have been impossible for any workman or witness after the repairs were completed to have identified all the several plates, parts, and pieces which went into the work. The painting of the vessel alone, as is customary after the metal has been restored, would have made identification next to impossible. The witness Richardson was present during most of the repairs, and Oldham, libelant's witness. The surveyors certified (Exhibit 28) that she 'had been strongly and neatly repaired in accordance with the recommendation' in 1894-- five years before this collision. No intervening injury to her bottom is shown until this collision. The bottom damage must be referred to this collision in the absence of proof of another cause. The proof given as to the character and extent of the injuries and of the repairs necessitated thereby, with proof of the bona fide payment of the bills, therefore, is all that can be reasonably exacted in such cases. Orhanovich v. Steam Tug America, 4 Fed. 337-341, approved in The Bulgaria, 83 F. 312, 314; The Bratsberg, 127 F. 1005; The Providence, 98 F. 135.

The onus of proving that repairs other than those resulting from the collision are included in the bills paid is upon the original libelant. The proofs are satisfactory that the Chisholm's bottom was injured-- heavily laden as she was with iron ore-- when she sank, and they make a case which justified their allowance by the commissioner.

The findings of the commissioner are presumably correct. They stand on the same plane as a master's report in respect to the weight to be accorded to them, and, where they deal with conflicting testimony, are not to be set aside except for clear error or mistake. Egbert v. Baltimore, etc., Co., 2 Benedict, 224, Fed. Cas. No. 4,305; Tilgham v. Proctor, 125 U.S. 149, 150, 8 Sup.Ct. 894, 31 L.Ed. 664; The Providence, 98 F. 135, 38 C.C.A. 670. This exception has no merit, and is overruled.

Fourth Exception. This is overruled. The services of the tugs were necessary. The steamer could not be safely navigated after the collision without their aid.

Fifth Exception. This is sustained. It is largely a charge for expenses of the owner of the Chisholm in preserving their rights against the insurers of the steamer. This item of $11.39 is disallowed.

Sixth Exception. This is made to allowance of $90 (Exhibit 5) for tug bills going to and from the sunken Chisholm after the collision. The bill of $10 for tug August 16, 1896, is not sustained by the testimony that the trip was necessary. Of course, it could not be allowed for taking lawyers and insurance agents to the wreck. No specific objection is made to the other items in Exhibit 5, and it is allowed at $80, instead of $90.

Seventh Exception. This must be overruled. The brief for libelant states: 'We have no objection to the allowance of Carr's fee. ' That fee is the only subject of the exception.

Eighth Exception. This is overruled. The voucher states that the trip was made in connection with the repairs, and the testimony of Richardson (page 26) is that his expenses at Detroit and for the trip to Buffalo were not connected with the insurance of the Chisholm. There is no evidence to the contrary. This charge seems sanctioned by Hobson v Lord, 92 U.S. 412, 23 L.Ed. 613, which is authority for allowing the expenses of an agent for the owner in like cases. If the owner were present in person for the protection of his interest in the injured vessel, in such cases his reasonable expenses and a fair allowance for his time and services would be proper as an element of the damages caused him by the collision. No reason is given why like expenses incurred by his agent in performing the services should not be reimbursed as a natural and necessary consequence of the disaster. The judgment of the commissioner who saw the witnesses and had an experience of 35 years in references involving such questions as are here presented carries great weight, and is not to be lightly disturbed. It would prolong an inquiry of this kind interminably if it were necessary for the owner of the injured vessel, in proof of damages, to adduce the testimony of every shipwright and metal worker who worked upon the repairs to verify each minute charge for labor or material which makes up...