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THE MARINE REGORD. MARINE LAW. COLLISION—VALUE OF VESSEL ASCERTAINED BY COST OF CONSTRUCTION AND STATE OF MARKET, . District Court S. D New York, Feb’y. 6, 1884. Exceptions to Commissioners report. Scudder & Carter and Geo, A. Black, for libelants. . Foster & Thomson and R. D. Benedict, for respondents, / Brown, J. ‘The schooner Job M. Leonard having been sunk in the Atlantic océan, off Long Island, on April 18, 1877, throngha collision with the steamship Arragon, owned by the respondent, this court, by its decree in November, 1879, found both vessels in fault, and It was referred to'a commissioner to ascertain the damages. Leonard v. Whit- will, 10 Ben. 638. Exceptions to the report have been filed by both parties. The value of the schooner at the time of the loss has been reported at $20,551. On the part of the libelant three witnesses who had seen the schooner téstity that her value-at the time of the lossjwas at least $26,000; other witnesses , for the libelant estimate her at from $25,480 to $33,000. . Witnésses for the respondent place her value at the time of the loss from $15,750 to 18,000. In this wide discrepancy, the mode of ascertaining the value edopted _ by the commissioner was to take her cost of building, $24,000, in 1874, the'deduct there- from 6 per cent. per annum for deterioration’ up to the time she was sunk in 1877, add the cost of anew set of sails’ recently put on her, less a slight reduction for a short period of use, and then from this deduct 5 per cent. ‘for the differerice in the cost of building and consequent market value between the year 1874 and the year 1877. The libelant’s principal exception is to the mode in which the commissioner arrived at the value of the ship, as above stated, insist- ing that as evidence of her market value was given by persons who had seen and knew her the commissioner had no right to resort to other methods. The Colorado, Brown, Adm. 411; The Ironmaster, Swab. 443; Dobree v. Schroder, 2 Mylne & C. 489, While it is undoubtedly true that the best single class of evidence ot market value is the opinions of competent persons who knew the vessel and who Knew the state of the market at the time of the loss, it does not follow in any given case, because witnesses testify to certain tacts, that either the com- missioner or the courtis shut: upto their evidence without giving any heed to other kinds of evidence which may he offered. ‘The cases cited by the appellant recognize equally the competency of evidence of the cost and deterioration as bearing on the amount to be allowed. Where from stagnation in the market at the time of the loss there is diffi- culty in fixing the precise market value, a resort to other modes of ascertaining it, especially where the vessel has been built but a few yeara, is at least allowable to be taken into account in arriving st a con- clusion. ‘he evidence shows that in 1877, when this vessel was lost, the market for sailing vessels was in a state of stagnation, and it was almost impossible to ascertain any actual sales which would turnish proper data or any criterion fer the determination of the actual market value. The different values sworn to are after all but mere estimates, and not based on knowledge of similar sales in 1877. It is impossible, in such cases to determine the amount tuo be allowed with mathematical certainty. I do not find from the evidence sufficient season to interfere with the result at which the commissioner has in this case arrived. In the case of The North Star, 15 Blatchf. 532, the value put upon the Ella Warley by the witnesses varied from $25,000 to $140,000; tie court fixed it at $42,000. In the case of the The Utopia, 16 Fed. Rep. 507, the esti- mates of value ranged between $8,000 and $15,000; $10,000 was allotted. The charges of the captain for superin- tendence during the construction of the ship were, I think, rightly disallowed as no proper part of the cost of her building. Another item excepted to by the libelant is the allowance by the commissioner of certain expenses incurred by the ship in providing tor the captain and crew, in con- sequence of the sinking of the schooner at the time of the collision, These men were obliged to take refuge upon the steamer, In- stead of taking them with her to Europe, she ‘returned towards New York, and after pro ceeding a part ofthe way, came up with a pilot boat, to which she (transferred the cap- tain and crew of the schooner, paying £25 for conveying them to New York, where- upon the steamer turned abuut and pro- ceeded on her voyage. ‘The steamer was detained in this way about a day. and con- sumed additional coal to the vaule of £11. ‘The commissioner has allowed the value of the extra coal, the £20 as demurrage for the detention of the steamer in going back with the crew, as part of her damages arising out of the collision,, Couusel for libelant claims that the expenses thus incurred, amounting to £26, for, the return of the captain and crew to New York, were not legal obliga- tions on the part of the steamer, and are therefore to be regarded as charges vol- untarily incurred, and not a ground of com- pensation in this account.” In the case of ‘rhe Mary Patten, 2 Low. 196, where both vessels were in fault, an allowance was made to one of the steamers for towing into port the other which was disabled, not by way of salvage, but as a quantum meruit for an act which was proper and necessary, and for the benefit of both parties, and therefore as part of the damage which the common fault had saused to the steamer. Lowell, J., says in that case that “the duty to stand by and}. save life, at least, cannot be said fo be of strictly legal obligation, because no law has yet visited the offender with damages for a: breach of it.” Neverthelese, the obligation of the ship not disabled, in cases. of collision, to render all possible assistance to the injured | vessel and to her crew, has been recognized as effecting the pecuniary rights of the par- ties when suing in admiralty. In the case of The Celt. Hagg. 321, Sir John Nicholl, in a suit against the ship that was uninjured, while he dismissed the libel because it ap- pears that the collision arose from no fault of the vessel sued, yet he condemned her in costs and expenses because the master had neglected to render assistance to the vessel a8 requested, and after taking her master and crew aboard his own vessel, had landed them in a state of destitution on the coast of Ire- land. The schooner in this case having been sunk immediately through the fault of both, some provision for her master and crew was necessary. ‘hey could not be left to drown or starve. If not. returned to New York, the nearest port, they must have been taken to Europe and back, and supported in the mean time. ‘The necessary care of the mas- ter and crew, upon the sinking of their ship, necessarily devolved upon the Arragon, which was substantially uninjured by the collision; ard the expenses necessarily at- tending such care should be deemed to have been inenrred in the performance of a mari- time duty, and not as a mere voluntary charity. Practically thege expenses were unavoidable. They were the immediate and necessary. result of the collision, and consequent sinking of the schooner; and as the colliston arose from the joint fault of both, these charges which were the unavoid- able result of the collision, should be held to be at the expense of both. There is no reason why they should be borne by one rather than by the other, Ina court of ad- miralty, at least, the obligation to provide for the master and crew ot the sinking ship should be regarded as obligatory, so far as to entitle the ship rendering assistance to the other to bring the necessary expense of doing so into the common account. ‘I'he Arragon, in this case, moreover, was an English steamer, and by 25 and 26 Vict. c, 63, §83, failure to render such assistance is declared to be misconduct; and by that act the duty was imposed upon her master to render to the other ship and to her master, crew and passengers such assistance as might be practicable, and failure to do this is notonly made presumptive evidence that the collision was by his own wrongful act, but would have made the master liable to have his certificate canceled for misconduct. This statute having thus made the assistance to the crew of the schooner legally obliga- ‘tory, there would seem to be no room for doubt that the expense to which she was putin rendering this assistance should be held a part of the legal damage arising from the collision, No objection was made to In estimating the value of the captain’s PORT OF BUFFALO, furniture and. personal effects, certain de- | OPENING OF NAVIGATION—DaTa FOR sixry. ductions were made by the commissioner from the cost price, varying on some articles FIVE YEARS-——FIRST VESSELS TO ARRIVE og DEPART. fram 10 to 50 per cent,, while on the re-! Special Correspondence Marine Record. mainder the market value, at the time of the loss, was allowed. Where articles have been in use for a considerable time, the owner has no right to insist on the full cost price because he may claim that they are to him as good as new. A_ reasonable deduc- tion may certainly bo made from the cost of such articles, having reference to the period and manner of their use, as might be done by a jury in similar cases in un action at cormmon law. Jones vs, Morgan, 90 N. Y. 4,10. Ae regards this and the other items excepted to, I think the commissioner’s re- port should be confirmed. ‘ NAUTICAL NOYES. The first of the cre carriers arrived at Es- canaba on the 24th, the Massachusetts and and Minnesota. Itis reported that the Illinois supreme court has decided that’ the Chicago smoke ordinance is unconstitutional. The steambarge Mary Mills was the first boat throngh the Straits. She passed upon the 24th and kept the regular course right through, Colonel John McDermott, of Bay City, purchased the little schooner J..B. Handy at mortgage sale, and says he will make a serew wheeler of her. A sum of money has been raised at Mt. Clewens which is to be applied to the dredg- ing of Clinton river. When the job is com- pleted the channel will be 38 feet wide and 19 feet deep from the mouth to the city. The yacht Flora, which had such a digas- trous voyage on “Old Cuyahoga” last sum- mer, has been sold by her owner, James Corrigan, to. parties east for the purpose of carrying ‘pleasure partiee, on some inland lake. ‘The contractors, who have failed in’ rais- ing the tug Protection, sunk at Saugatuck last tall, have given notice to that effect. Captain Higgie does not abandon hope of saving his tug, and will Jet a contract to other parties. During the season of 1883: the arrivals at Port Arthur were 183 American vessels, ag- gregating 85,291 regiztered tons, and carry- ing 1,935 souls. In that season 120,000 tons of coal were carried to that port in Ameri- can bottoms, and at alow estimate there will be 200,000 in 1884. cae In the case of S. A. Murphy against the barge Rutter, which was engaged in the coal carrying trade between Sandusky and upper lake ports last season, the United ‘States Court at Detroit has rendered judg- ment in favor of Murphy for $2,145. By the last report of the ‘Treasury De- partment on commerce and - navigation we learn that the total tonnage of registered, enrolled and licensed vessels of New York is 945,646, and of Chicago 73,197; ot Lon- don, 1,118,579. ‘The figures of London are for 1881. Captain F. B. Hackett has secured the contract from the Canadian government to keep a light on Colchester reef, Lake Erie, this season, and has secured the schooner Admiral, which will be placed on the reef as g00n as she comes off the Detroit drydock. Captain Hackett has kept a light for twenty years on this reef, with the exception of the last two years—which was very un- satisfactory—and vessel men will be able to again have confidence in the light, which is on one of the most dangerous reefs on the lakes, a8 Captain Hackett will see that it is kept properly. Buoys indicating twelve and eighteen feet of water have been set at Sand Beach. Red lights marking the north entrance to the harbor will be shown from May 1. - The harbor master’s launch will not be fitted out this season unless the pending appro- priation becomes a law and work cannot be done on breakwater or by dredging. ‘I'he new lighthouse to be erected there this sea- son will be situated nearer the north en- trance than the present one and will show a flash instead of a bright light. It will be built on an independent crib instead of on the breakwater. A red over a white lantern light, about elghteen and fourteen feet respectively above the water will be exhibited the. pres- ent season af the Lime Kiln Crossing, De- troit river, from a scow anchored about 1,000 feet below the lower dock of the C. S. R. R. and 550 feet from the Canadian shore. The scow and mast will be painted red to serve as aday mark. The best water, say coming down, will be carried by passing within 200 feet of the ©. S. R. R. dock, and just crossing the Bois Blane Range to the eastward, keep it slightly open, until a little below the light ship, when it may be taken up again. a The proprietors of the leading steel works the mode in which the assistance was ren-|in Pruesta, including Krupp, inform their dered. venient and reasonable that could be adopt- ed; this item should, therefore, be allowed. It seems to have been the most con- | workmen that overproduction compels them ito reduce the number of working hours, Some threaten to stop their works. DETROIT, April 28, For several years prior to the Opening of achannel for the entrance of vessels into Butlalo Creek, the eastern terminus for crafton Lake Erie was at Black Rock, at present known as East Buffilo. Landings were also made at Bird Island, at the head of the Fort Erie Rapids. here are two in. stances on record when navigation was de. layed at that point until June, viz.: 1807 June Ist, and 1811, June 4th, Following are the openings for the past sixty-five years: ‘ 1819—May 6, steamer Walk-in-the-Water Captain Rodgers, departs. : 1820—May 6, same steamer and master depart. 1821—May 19, same steamer and master depart. 1822— April 16, steamer Superior, Captain Jedediah Rodgers, departs.: - 1823— April 27, same steamer and master depart. ; 1824— April 29, same steamer and master depart. ; 1825—April 23, steamer Wm, Penn, Cap- tain John F. Wight, depar:s, 1826—May 28, steamer Henry Clay, Cap- tain Walter Norton, departs, 1827—May 1, schooner Boliver arrives. 1828—April 1, steamer Henry Clay, Cap- tain Walter Norton, departs. 1829—May 21, steamers Clay, Capt. Wal» ter Norton, and Wim, Penn, ‘Capt. John F, Wight, depart. 1830—April 6, steamer Pioneer, Captain George Miles, departs. 1831—May 8, steamer Superior, Captain W.'I’. Pease, departs ; 1832—A pril 27, schooner Detroit, Captain H. Whitaker, depurte. 2 1833--April 23, steamer Henry Clay, Cap- tain Walter Norton departs, 1834—-April 8, steamer Enterprise, Cap- tuin Simeon Fox, departs, 1835—May 8, steamer Gen. Porter, Cap- tain Walter Norton, arrives. : 1836—April 27, steamer Daniel Webster, Captain Morris ‘I'y ler. departs, : 1837—May 16, steamer James Madison, Captain R. C. Bristol, arrives, 1838--March 31, steamer, Penneylvania, arrives. : : 1839—April 11, revenue cutter Erie, Cap- tain Dobbins, arrives. : . 1840--A pril 27, steamer Chesapeake, Cap- tain D. Howe, arrives. 1841—April 14, same steamer and master arrive. 1842—March 7, steamer Gen. Scott, Cap- tain lra Davis, arrives, ‘1843—-May 6, steamer Julia Palmer, Cap- tain ‘I’, J. Titus, departs. 4 1844—March 14, steamer United States, Captain H. Whitaker, departs. 1845—April 8, same steamer and master depart. 1846--April 11, same steamer and master depart. 1847—April 23, steamer Chesapeake, Cap- tain N. H. Warner, arrives. 1848—April 9, stermer Southerner, Cap- tain A. D. Perkins, arrives, 1849—April 11, steamer Sultana, Cap- tain G. Appleby, arrives. 1850—March 23, steamer Southerner, Cap- tain J. L. Edmunds, departe. 1851—April 2, steamer Canada,. Captain J. H. McQueen, departs. 1852—April 20, steamer Ocean, Captain D. H. McBride, arrives. 1853—April 14, steamer Mayflower, Cap- tain Geo, E. Willoughby, arrives. 1854—April 29, steamers and vessels ar- rive and depart. ; 1855—April 21, steamers and vessels ar- rive and depart. 1856—May 2, steamers and vessels arrive and depart. 1857— April 27, propeller Comet, Captain Wetmore, departs, 1858—April 15, vessels and steamers ur- rive and depart. 1859—April 7, propeller Equinox, Cap- tain J. F, Snow, departs. 1860—April 17, propellers Equinox and Araxes depart. 1861—April 13, propeller Queen of the Lakes, Captain A. Briggs, departs. 1862—April 6 propeller Eclipse, Captain Chas. Crosby, departs. 1863— April 7, propeller Equinox, Captain J. 1. Snow, arrives, 1864— April 14, propeller Acme, Captain Hathaway, departs. 1865—April 25, propeller Missouri and three vessels depart. 1866—A pril 22, brig Paragon and others depart. 1867—April 19, schooner Republic and others depart. 1868—A pril 11, propeller Canisteo, Cap- tain Gaylord, departs. 1869—May 1, propeller Dean Richmond and others depart. 1870—April 16, propeller Idaho, B. Penny, departs. 1871—April 1, propeller Araxes and oth- ers arrive, 1872—May 6, propeller Badger State and others arrive, Japtain