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THE NO. 114

May 21, 1935

THE NO. 114; THE TURECAMO GIRLS


The opinion of the court was delivered by: BYERS

BYERS, District Judge.

Hearing on Exceptions to Commissioner's report.

The libellants' covered barge No. 114 (92 feet long, 31 feet in beam, and 10 feet in depth) having a cargo of limestone in sacks on board, was sunk as the result of being struck by the claimant's tow, on December 12, 1933, at about 3:00 a.m. The barge was properly moored alongside a pier in Staten Island.

 On consent an interlocutory decree was signed which established liability, the amount of damage being left for determination.

 The important exceptions have to do with the question of the value of the barge.

 The repair bill was $5,900.00, and it is not contested.

 The claimant has undertaken the burden of proving that the value of the repairs exceeded the value of the barge, and consequently under familiar law (The Havilah (C.C.A.) 50 F. 331) the latter item alone can be recovered.

 The question for decision is whether the claimant has sustained this burden of proof.

 It is not intended to restate in summary form all that the report contains concerning the testimony of the various witnesses. It will suffice to discuss briefly the arguments that the claimant presents, and to observe that the testimony has been examined to discover in what respects, if any, the commissioner may be thought to have been misled.

 The report as it comes before the court is presumptively correct (rule 43 1/2, U.S.Supreme Court Admiralty Rules [28 U.S.C.A. following section 723]) and may be rejected only if the court is satisfied that the evidence so requires.

 The claimant called two witnesses exclusively to establish market value, and a third for that purpose and also to demonstrate "calculated value," namely, reproduction cost as estimated less depreciation.

 The first two testified to sales of covered barges during the year 1934, and, as a result of these sales and their general knowledge of and familiarity with conditions in this port concerning transportation business, they gave as their opinion the market value to be $650.00 and $700.00 respectively.

 The commissioner discussed the bases of this testimony, and concluded that it was not persuasive, largely because these witnesses did not demonstrate sales of barges which were in a comparable condition to that of No. 114.

 A reading of the testimony does not yield affirmative reason for disagreement. It is appropriate here to state that this vessel was built in 1907, and was therefore more than 26 years old at the time of collision. The evidence shows that, during the preceding 10 years, the sum of $17,000.00 had been expended in keeping her in repair. A record of the expenditures was in evidence, and failed to elicit any comment in the report to the effect that this very considerable and unusual disbursement was caused by structural weakness or infirmity. No collision damages were thus accounted for, and, while it is not easy to understand the necessity for such costly maintenance, the effect of this evidence was to greatly enhance the ...


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