expenses may be recovered, even though upon more mature investigation the repairs might have been made at a lesser rate, where the circumstances at the time require prompt action. But expenses not directly resulting from the collision, nor incurred in restoring the vessel to its former condition, cannot be charged as damages.2 The fact that a vessel is old does not preclude it from recovery, unless it is guilty of some unlawful act, actual or constructive, such as failure to give notice of its weakness, where there is opportunity to do so, in time to avoid collision, when in a place of danger. Where the collision is unexpected, and without fault on the part of the injured vessel, it is entitled to full indemnity, and repairs that will place it in as good condition as before." 1 The Alaska, 44 Fed. R. 498. 2 The Memphis & St. Louis Packet Co. v. The C. H. Yager, 2 McCrary, 165; Vantine v. The Lake, 2 Wall. Jr. 52. Where a collision occurred between a steamer and a sailing-vessel, and the steamer towed the sailing-vessel into port after colliding with it, it was held that an allowance to the steamer of a reasonable amount for towage services was proper, as part of the damages suffered by it. The Mary Patten, 2 Low. 196. 3 The Howard, 30 Fed. R. 280; The Reba, 22 Fed. R. 546; The Atlas, 3 Otto, 302; The Baltimore, 8 Wall. 377. Where another vessel belonging to the same owner was substituted for the disabled vessel during its detention, the right of the owner to compensation is not affected; nor is it a cause for awarding less than if such vessel were not substituted. The State of California, 54 Fed. R. 404. Where a part owner voluntarily devotes a portion of his time to overseeing repairs on a vessel injured by collision, and there was no proof that such services were necessary or valuable, nor that they had been paid for by the remaining owners, it was held that no allowance should be made therefor. Id. Where a vessel was injured by collision, and, without estimating the cost of restoring it to its former condition, it was altered and repaired into a condition wholly dissimilar to its previous state, it was held that libelant could only recover the value of his vessel at the time of the accident, with the cost of five days' pumping necessary to render it fit for estimating the damages done, together with damages for loss of his personal property. A Scow, 8 Ben. 181. Where it appeared that several of the items in a bill of repairs of an injured vessel were exaggerated, with the knowledge and consent - Sec. 199. New for old material. The owner is entitled to recover as damages whatever sum is found necessary to restore his vessel to the condition it was in before the collision, notwithstanding that in making the repairs new and more valuable materials are used than were in the vessel at the time of receiving the injury; subject, however, to the general provision of law that the owner may not captiously insist on repairs where such repairs would equal or exceed the value of the vessel at the time of the collision. In all cases the measure of indemnity is co-extensive with the injuries received; and the fact that new and better material entering into the repairs may render it better than before the collision, affords no reason for an allowance for such of the master, for the purpose of imposing upon the underwriters, and the district court reduced the value of the items so exaggerated to the lowest estimate, on appeal it was held that such reduction was proper. The Sampson, 4 Blatch. 28. Where it appeared that repairs were not all made at once, but at different times, several voyages intervening between, this circumstance was taken into consideration in the measurement of damages, and a deduction made, as it appeared the repairs could have been made more cheaply had they been completed at one time. The Henry M. Clark, 22 Fed. R. 752. The testimony of the master as to the amount paid for repairs, the testimony of the vessel agent as to the payment of the repair bills, together with the production of the receipted bills, held to establish prima facie the cost of repairs without calling the men who did the work. Orhanovich v. The Steam-tug America, 4 Fed. R. 337. Where the raising of the vessel and cargo was delayed by the inferior plan adopted by the owners, the court refused to allow damages beyond the actual time it would have taken to perform the work in the usual and more approved method. The Russia, 4 Ben. 572. Good judgment should be shown in the matter of making repairs; and where the owner of an injured vessel got no estimate before repairing, and contracted for no limit of time 'for repairing, and it appeared that the items of repairs exceeded the value of the boat, it was held that such excess could not be recovered. The Venus, 17 Fed. R. 925. Where an anchor was shipped to avoid collision, in the absence of proof to the contrary, the court will presume that to recover it would cost all it would be worth. Johansen v. The Eloina, 4 Fed. R. 573. bettered condition. In making repairs in collision cases, a different rule prevails than in insurance cases, where an allowance is usually made for new material; in collision cases no such allowance is permitted. In the repairing of old and wornout vessels, the courts scrutinize very closely the repairs made, and nothing is permitted beyond those repairs made necessary to restore it to as good a condition as it was in before the injury. Where the value of personal effects of seamen is sued for, a deduction may be made from the market value of similar articles, for their depreciation by reason of use.3 Sec. 200. Total loss.- Restitution is the rule in all cases where repairs are practical, and compensation when the loss is total. The measure of damages in case of total loss is the market value of the vessel at the time of the collision, together with its cargo and freight, and such other losses as are a direct result of a collision. The market value of the vessel, and not its real or intrinsic value or cost of construction, is ordinarily the measure of damages. The recovery is limited to the market value, and damages in excess of such value may not be assessed by reason of additional value to the owner, owing to peculiar fitness for the trade in which it is engaged, or otherwise; nor is the market value to be determined by what the owner would have been willing to take for the vessel, but it is the amount for which the vessel would have sold in the open market. The party at fault may not diminish the damages to be assessed against him by showing that the real value of the ship is less than its market value, by reason of its age, the defective nature of its construction, or other causes." The Baltimore, 8 Wall. 377; The 697; Williamson v. Barrett, 13 How. Fannie Tuthill, 17 Fed. R. 87. 2 The Quaker City, 19 Fed. R. 141. 3 Leonard v. Whitwell, 19 Fed. R. 547. 4 The Laura Lee, 24 Fed. R. 483; The City of Alexandria, 40 Fed. R. 101. 5 The New Jersey, Olc. 444; The Venus, 17 Fed. R. 925; The Ant, 13 Fed. R. 91; Parsons on Ship. 542; The Granite State, 3 Wall. 310; The Baltimore, 8 Wall. 377; The When the conditions are such that no market value can be shown, where there is no market value, or, if shown, it is so manifestly disproportionate to the intrinsic value of the vessel that to order a sale at such a price would be a hardship, the court may adopt as the value of the ship the cost of construction with proper deduction for the deterioration in its value from the time of construction; especially may this method be resorted to if the vessel is but recently built.1 The owner may not abandon his vessel, and recover for a total loss, when it is sunk in such shallow water that it can be raised and repaired at an expense much less than it is worth; recovery in such cases being limited to the cost of raising and repairing. The mere fact that a vessel is sunk by collision is not sufficient to charge the one at fault for a total loss. The owner of the sunken vessel must employ reasonable means to investigate its condition, and mitigate the loss if possible, before he is in position to claim a total loss. He must first show that the vessel cannot be repaired, or that the expense of doing so would equal or exceed its value after the repairs, if made. Where the sunken vessel is so situated that it cannot be determined whether or not repairs can be made, without raising it, the expense of raising or other investigation may be recovered in addition to the total or partial loss.1 Ann Caroline, 2 Wall. 538; The the vessel was. The Benison, 36 'Leonard v. Whitwell, 19 Fed. R. 547; The Cayuga, 2 Ben. 125. Where a vessel damaged by collision was sold at auction, and it appeared that the auction sale was fully attended, and was fair, and the owners permitted it to be sold and pass into other hands, it was held that the price received on such sale was the most certain evidence as to what the market value of 2 Pratt v. The Havilah, 50 Fed. R. 331; Clark v. The Fashion, 2 Wall. Jr. 339. 3 The Baltimore, 8 Wall 377. 4The America, 11 Blatch. 485; The Mary Eveline, 14 Blatch. 497. Where a pilot-boat was sunk by a collision, being cut half through on the port bow, and one wrecking company had refused to attempt to raise it, and another had refused To recover as for a total loss it is not always necessary to prove to a point of demonstration that the vessel is a total loss or sunk, and that recovery is impossible. Where the damages received are of a sufficiently serious nature that a master exercising ordinary firmness and nautical skill, under reasonable apprehension that the lives of the crew will be jeopardized by trying to save his vessel, abandons it, the loss will be regarded by the courts as a total one, unless it is shown that it actually did not founder, and is still in condition to be repaired. The law does not require the master or crew of a vessel to incur greater perils in the navigation of their ship than ordinarily attend this hazardous occupation, for the purpose of preserving a damaged ship from total destruction, when by so doing the lives of the vessel's crew would be imperiled; nor can the liability for total loss be avoided by showing that had a different policy been pursued by the injured ship, it might have been preserved, where it appears that the master and crew acted in a reasonably seaman-like manner.2 Sec. 201. Valuation.- Usually the measure of damages is the value of the ship at the time of collision. In determining this the evidence of competent persons familiar with it, having knowledge of the value of vessels of its age, class and condition, is usually the best evidence; but when the market is in such condition that it affords no fair criterion as to what would under ordinary conditions be the reasonable value of such a vessel, the court is not bound to accept, as the market value, a price so low as to bear no fair relation to the cost of construction; and the court may, in the case of comparatively new ships, take the cost of construction as the fair value, making a reasonable allowance to attempt to raise it for less than $3,000, without regard to value when raised, it was held sufficient to warrant a finding that the loss was total. The Normandie, 58 Fed. R. 427. 1 Swift v. Brownell, 1 Holmes, 467; The Ontario, 2 Low. 40. 2 The Rebecca, Blatchford & H. 347; The Nellie, 2 Low. 494. |