United States v. Boston Sand & Gravel Co., 2170.

• Decision Date: 17 January 1928
• Docket Number: No. 2170.,2170.
• Parties: UNITED STATES v. BOSTON SAND & GRAVEL CO.
• Court: U.S. Court of Appeals — First Circuit

23 F.2d 839 (1928)

UNITED STATES v. BOSTON SAND & GRAVEL CO.

No. 2170.

Circuit Court of Appeals, First Circuit.

January 17, 1928.

A. Chesley York, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Gloucester, Mass., on the brief), for the United States.

Foye M. Murphy, of Boston, Mass. (Viola B. Kneeland and Blodgett, Jones, Burnham & Bingham, all of Boston, Mass., on the brief), for appellee.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

This admiralty appeal involves simply questions of fact as to the assessment of damages caused by a collision on August 9, 1918, between the government destroyer Bell and the steam lighter Cornelia, under the mandate of this court (7 F.2d 278), holding that both vessels were at fault and that the damages should be divided. The government now complains that the commissioner and the court below were wrong in holding the libelant justified in abandoning the Cornelia as a constructive total loss and that the Cornelia was then worth $95,000.

There is and can be no dispute as to the applicable rule of law. The Baltimore, 8 Wall. 377, 19 L. Ed. 463.

The case was referred to one of the most experienced admiralty lawyers of this bar, who made an exhaustive and elaborate report. This report was, on exceptions by the government, carefully reviewed by the District Judge and affirmed. The case therefore falls under the usual rule that the concurrent results of two tribunals of fact should not be reversed, unless clearly shown to be erroneous. The Providence (C. C. A.) 98 F. 133; Towson v. Moore, 173 U. S. 17, 19 S. Ct. 332, 43 L. Ed. 597. Cf. Sternburg v. Cohen & Co. (C. C. A.) 254 F. 1.

The evidence supports — it does not negative — the results reached. After spending several days in efforts to raise and save the vessel, with the help of competent experts in such undertakings, the libelant and its insurance company both reached the conclusion that the cost of raising and repairing her would exceed the insurance, $30,000. The insurance company thereupon offered either to pay the libelant the full amount of the insurance — $30,000 — taking an assignment of the libelant's interest in the wreck, or $25,000 in full settlement of all claims under the policy. The libelant accepted the offer of $30,000 and assigned its interest to the insurance company. A little later John I. Snow, of Rockland, Maine, bought the wreck for $5,000, raised her, expended some $22,000 in...