The opinion of the court was delivered by: JONES
This is a petition to limit the liability of the charterer of the Steamer Mariposa which collided with a railroad bridge on May 6, 1944.
It having been determined that petitioner was entitled to limit its liability, the cause was referred to a Commissioner for determination of the value of the Mariposa in her damaged condition after the collision and for determination of each claimant's damages.
The Commissioner's report now has been filed. The petitioner excepts to the finding that the value of the Mariposa in her damaged condition was $ 215,838.67 or $ 40,428.83 and to the finding that all claimants are entitled to interest from August 2, 1944. The claimant Ford Motor Company excepts to the Commissioner's denial of two of its items of damage and the petitioner excepts to the suggested fee bill of the Commissioner.
The Mariposa was repaired shortly after the collision and all parties agree that the cost of repairs, $ 30,363.83, must be deducted from the value of the ship in its undamaged condition.
All of the parties also agree that the case, Standard Oil Co. of New Jersey v. Southern Pacific Co. (The Proteus), 268 U.S. 146, 45 S. Ct. 465, 467, 69 L. Ed. 890, states the applicable methods by which the value of the Mariposa is to be determined.
The case states that: '* * * In case of total loss of a vessel, the measure of damages is its market value, if it has a market value, at the time of destruction. * * * Where there is no market value, such as is established by contemporaneous sale of like property in the way of ordinary business, as in the case of merchandise bought and sold in the market, other evidence is resorted to. The value of the vessel lost properly may be taken to be the sum which, considering all the circumstances, probably could have been obtained for her on the date of the collision; that is, the sum that in all probability would result from fair negotiations between an owner willing to sell and a purchaser desiring to buy. * * *'
Benedict on Admiralty, 6th Ed., Vol. 3, Sec. 501, states the same rule as follows: 'Contemporaneous sales are usually the best evidence of the vessel's value, but where such evidence is not available, other sources of information may be considered. * * * The value of the ship's stores must be included in the appraisal.'
The Commissioner found that the value of the Mariposa was established by contemporaneous sales of like property. It is, therefore, unnecessary to consider the alternate methods of valuation provided in the Proteus case and in Benedict.
The Mariposa, herself, was sold by the petitioner to the U.S. Maritime Commission shortly before the accident for $ 246,202.50. The Commissioner deducted the cost of repairs and determined the value of the Mariposa in her condition to be $ 215,838.67. The Mariposa actually was turned over to the Maritime Commission and the $ 246,202.50 was applied to the purchase price of a Maritime Commission ship purchased by the petitioner.
The private sale of the Steamer Princeton was also held to be a contemporaneous sale of like property. The Commissioner found that the carrying capacity of the Mariposa was 55% of the Princeton and by taking 55% of the purchase price of the Princeton he arrived at the value of $ 68,924.69 for the Mariposa in her undamaged condition. By subtracting the cost of repairs and adding the value of the coal in the Mariposa's bunkers, the Commissioner set the value of the Mariposa in her damaged condition at $ 40,428.83. The Commissioner states that either one of these values will amply provide for all the claims but he indicates that $ 215,838.60 is the true value of the Mariposa. The petitioner, as noted, excepts to both findings of value.
In considering exceptions to a Commissioner's findings it should be noted that such findings are presumptively correct, Admiralty Rule 43 1/2 , 28 U.S.C.A.; they are not to be disturbed unless they are clearly erroneous, Pioneer Import Corp. v. The Lafcomo, 2 Cir., 159 F.2d 654, and the party who excepts to the Commissioner's conclusions has the burden of proof that the Commissioner was mistaken in his conclusions. The Perry G. Walker, D.C., 216 F. 423.
The petitioner is correct in its claim that the Commissioner was clearly in error in holding the value of the Mariposa to be $ 215,838.67. The evidence shows that during the early part of the war the Maritime Commission built several lake ships at a cost of about two and a half millions each. It wished to sell these ships to private owners but was unable to do so because of the excessive price. A formula was worked out by which owners of old lake ships traded in their old ships as part of the purchase price of Commission ships. Some 30 ships were turned over and each one of these was valued at $ 63.75 per carrying ton. By this scale the Mariposa was worth $ 246,202.50. The fact that no consideration was given to such factors as the age, condition, equipment and repairs made on the individual ships leads to the conclusion that this figure of $ 63.75 was arbitrary and had no relation to the true value of each ship. It was merely a method by which the Commission could unload the ships it then owned.