Opinion · Court of Appeals for the Second Circuit
The Salutation
37 F.2d 337
- Type
- Opinion
- Court
- Court of Appeals for the Second Circuit
- Jurisdiction
- Federal
- Date
- 1930-01-06
- Topic
- general
How later courts describe this case
- proper exercise of discretion required denial of prejudgment interest in light of plaintiff's delays in litigation as well as uncertainty as to the extent of the loss
Citator
UpLaw has not yet analyzed The Salutation. The absence of a flag is not a finding that it is good law.
- Cited by
- 7 opinions
THE SALUTATION,37 F.2d 337(2nd Cir. 1930)
THE SALUTATION.
No. 99.
Circuit Court of Appeals, Second Circuit.
January 6, 1930.
Rehearing Denied January 22, 1930.
Libel by the New Jersey Shipbuilding Dredging Company against the steam tug Salutation, James McWilliams Towing Line, claimant, to recover damages for injuries caused libelant's drill when collided with by claimant's steam tug. A decree was entered for libelant, and a special commissioner was appointed to assess damages. The award of the commissioner was confirmed by the District Court, and a final decree entered thereon, and claimant appeals. Decree modified.
Alexander, Ash Jones, of New York City (Edward Ash and Max Taylor, both of New York City, of counsel), for appellee.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
Upon disputed evidence, the commissioner found that the drill columns were down and damaged by displacement at the top of the drill columns structure from starboard to port, which resulted in bending and fracturing these parts by reason of the weight of the machinery itself. The three drill columns he found were resting on rock at the time of the collision, and the starboard drill columns and the others as well were also down at the time. The commissioner found that the preponderance of evidence established that the damages, for which he made an award of $39,584, were caused by this collision of the Salutation rather than other and subsequent collisions which took place with other vessels. He awarded these damages as the estimated cost of making repairs, even though the repairs were never actually made. Penn. R.R. Co. v. Downer Towing Corp. (C.C.A.)11 F.2d 466; The Edward G. Murray (C.C.A.) 278 F. 895;Page 338The William E. Ferguson (C.C.A.) 108 F. 984. We need but say that a review of this long record finds ample evidence to justify the commissioner's finding and the confirmation by the court below, and we will affirm such findings. The Perry Setzer (C.C.A.) 299 F. 587; The Clermont (C.C.A.) 287 F. 136; The F.B. Squire (C.C.A.) 248 F. 469.
Interest was allowed by the commissioner, and the District Court from June 9, 1920, the time of the filing of the libel. The case was on the calendar and not tried until October 9, 1924, and the District Court did not enter the interlocutory decree until October 26, 1925. The report of the commissioner was filed January 19, 1928, and the final decree was entered January 22, 1929. This unexplained delay in the prosecution of this case should deprive the appellee of interest on the award. Indeed, it was only after a motion conditionally granted to dismiss for lack of prosecution that the case was brought to trial. Such delays are sufficient reason for forfeiting interest. The James McWilliams (C.C.A.) 240 F. 951; The Edward G. Murray (C.C.A.) 278 F. 895. Interest is discretionary in a court of admiralty. Dyer v. Nat. Steam Navigation Co.,118 U.S. 507,6 S. Ct. 1174,30 L. Ed. 153; J.G. Gilcrist (D.C.) 173 F. 666; The North Star (D.C.) 140 F. 263. It was an abuse of discretion to allow interest on this award of damages. In view of these delinquencies of the appellee, interest will be allowed only from January 22, 1929, the date of the final decree.
The decree is modified accordingly.
On Rehearing.
Moreover, the claim is for unliquidated damages, shown by evidence, which, while having sufficient probative force to support the decree, was not free from uncertainty as to the extent of the loss. A wise exercise of judicial discretion requires a denial of interest on the award other than allowed in our opinion.
Application for reargument denied.Page 449