Smith v. The Wm. J. Lipsett, 86 F. 696

Smith v. The Wm. J. Lipsett

86 F. 696 | E.D. Pa. | 1898

BUTLER, District Judge.

With much reluctance, and only because he believed the authorities required it, the commissioner allowed the entire cost of the new bowsprit. I agree with him that the allowance *697is inequitable; and do not feel constrained b,y tire authorities to acquiesce in it. The rule is well settled in collision cases that respondents must pay the cost of repairs rendered necessary by their carelessness, notwithstanding the value of the vessel may be increased thereby. The rule sometimes works apparent injustice, and is not enforced against insurers. Where, however, the injuries may as justly be attributed to the worn-out or rotten condition of the vessel as to the collision, the rule should not be applied. The cases are not entirely clear respecting this, but I think the exception is fully recognized. Sturgis v. Clough, 1 Wall. 269, 272: The N. B. Starbuck, 29 Fed. 793; The Reba, 22 Fed. 546; The Syracuse, 18 Fed. 830. Here the bowsprit was rotten and unfit for use. The vessel was unseaworthy in this respect, and should not have gone out until repaired. The commissioner virtually so finds; and the testimony leaves no doubt of the fact. Her master substantially admits it. She might possibly have been used in this condition for a short time, but not without risk. She was in fault therefore in going out in such condition. To compel the respondent to pay the entire cost of a new bowsprit, which the libelant should have put in before starting, would be clearly unjust. Under the circumstances I will treat both parties as in fault to this extent, and will allow the libelant one-half the cost, which appears to be $85, reducing the balance against the respondent to $665.72; and for this sum a decree may be entered. I do not find anything in the evidence that would justify further interference with the commissioner’s report.