Williamson v. Barrett/Dissent Catron

Mr. Justice CATRON.

This action is one of owners against owners of respective steamboats. It is an action on the case, in which no vindictive damages can be inflicted on the defendants, as they committed no actual trespass; and therefore, in assessing damages against them, moderation must be observed.

In the next place, the collision occurred on the Ohio River, and the rules of law applicable to the controversy must accommodate themselves to that navigation.

The injured boat was sunk, and the plaintiffs declared for a total loss; but it came out in evidence, that she was raised and repaired, and again commenced running the river. On this state of facts the jury was charged: 1st. That damages should be given for raising the boat: 2d. For repairing her: and 3d. Also damages in addition, 'for her use, during the time necessary to make the repairs and fit her for business.'

The expression 'for her use,' must mean either the clear profits of her probable earnings; or, how much she could have been hired for to others during the time of her detention. Both propositions come to the same result, to wit: how much clear gains the owners of the Major Barbour, could have probably made by their boat, had she not been injured, during the time she was detained in consequence of being injured. This probable gain, the jury was instructed to estimate as a positive loss, and to charge the defendants with it.

The suit is merely for loss of the boat, and has no reference to the cargo. It does not appear that she had either cargo, or passengers; nor does the evidence show in what trade she was engaged.

In cases of marine torts, no damages can be allowed for loss of a market; nor for the probable profits of a voyage. The rule being too uncertain in its nature to entitle it to judicial sanction. Such has been the settled doctrine of this court for more than thirty years.

In the case of the Amiable Nancy, 3 Wheat. 560, when discussing the propriety of allowing for probable loss of profits on a voyage that was broken up by illegal conduct of the respondents' agents, this court declared the general and settled rule to be, that the value of the property lost, at the time of the loss; and in case of injury, the diminution in value, by reason of the injury, with interest on such valuation, afforded the true measure for assessing damages: 'This rule,' says the court, 'may not secure a complete indemnity for all possible injuries; but it has certainty, and general applicability to recommend it, and in almost all cases, will give a fair and just recompense.' And in the suit of Smith v. Condry, 1 How. 35, it is declared, that in cases of collision 'the actual damage sustained by the party, at the time and place, of the injury, is the measure of damages.' In that case there was detention as will as here, but it never occurred to any one, that loss of time could be added as an item of damages. In other words, that damages might arise after the injury and be consequent to it; and which might double the amount actually allowed.

The decision found in 3 Wheat. was made in 1818, and I had supposed for many years past, the rule was established, that consequential damages for loss of time, and which damages might continue to accrue, for months after the injury was inflicted, could not be recovered; and that there was no distinction in principle, between the loss of the voyage, and loss of time, consequent on the injury.

The profits claimed and allowed by the Circuit Court, depended on remote, uncertain, and complicated contingencies, to a greater extent, than was the case, in any one instance, in causes coming before this court, where a claim to damages was rejected for uncertainty.

Here, full damages are allowed for raising the boat, and for her repairs. To these allowances no objection is made; it only extends to the additional item for loss of time. That the investigation of this additional charge will greatly increase the stringency, tediousness, and charges of litigation, in collision cases, is manifest; nor should this consideration be overlooked. The expense and harassment of these trials have been great when the old rule was applied; and, the contest, if the rule is extended, must generally double the expense and vexation of a full and fair trial. Nor will it be possible, as it seems to me, for a jury, or for a court (where the proceeding is by libel) to settle contingent profits, on grounds more certain, than probable conjecture. The supposition that the amount of damages can be easily fixed, by proof of what the injured boat could have been hired for on a charter-party, during her detention, will turn out to be a barren theory, as no general practice of chartering steamboats, is known on the western rivers, nor can it ever exist; the nature of the vessels, and the contingencies of navigation being opposed to it. In most cases, the proof will be, that the boat could not have found any one to hire her; and then, the contending parties will be thrown on the contingency, whether she could have earned something, or nothing; little, or much, in the hands of her owner, during the time she was necessarily detained; and this will involve another element of contention of great magnitude; to wit, whether she was repaired in reasonable time. Forasmuch as no necessity will be imposed on the owner to bestow the repairs, as is now the case, he will rarely, if ever, do so; and having the colliding boat and her owners in his power, gross oppression will generally follow, in applying this new and severe measure of damages to western river navigation.

In a majority of cases of collision on the western waters, partial injury, repairing, and detention of the injured boat occur. Contests before the courts have been numerous where the precise question of compensation here claimed was involved, and yet in an experience of twenty-five years, I have never known it raised until now. The bar, the bench, and those engaged in navigation, have acquiesced in the rule, that full damages for the injury at the time and place when it occurred, with legal interest on the amount, was the proper measure; nor do I think it should be disturbed; and that therefore the judgment of the Circuit Court should be reversed, because the jury were improperly instructed, in this particular.