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146

Argument for Petitioner.

Court of Appeals is contrary to analogous cases decided in other circuits. The H. F. Dimock, supra; La Normandie, 58 Fed. 427; Whitehurst v. United States, 272 Fed. 46; The J. E. Trudeau, 54 Fed. 907; The Samson, 217 Fed. 344; The I. C. White, 295 Fed. 593. The so-called “rate making cases are somewhat analogous, in so far as a "fair value” is sought as the basis of fixing a reasonable rate for public utilities. Smyth v. Ames, 169 U. S. 466; Galveston Electric Co v. City of Galveston, 258 U. S. 388; The Minnesota Rate Cases, supra; Georgia Ry. & Power Co. v. Railway Comm., 262 U. S. 625. The same broad rule is also applied in comdemnation proceedings. Hanson Lumber Co. v. United States, 261 U. S. 581; United States v. New River Collieries Co., 262 U. S. 341; Brooks-Scanlon Co., v. United States, 265 U. S. 106; United States v. Boston C. C. & N. Y. Canal Co., 271 Fed. 877.

Many of the cases reject “reproduction" values, particularly, where, as in the present case, they are founded on transitory and abnormal costs of production. Mersey Docks and Harbor Board, 3 K. B. Div. 223, distinguished. Abnormal and transitory values should not control, even where market value is the test. City of New York v. Sage, 239 U. S. 57; Reno Co. v. Pub. Ser. Comm., 298 Fed. 790; In re Inwood Hill Park, 189 N. Y. S. 642; Lawrence v. Boston, 119 Mass. 126; Brown v. Calumet River Ry. Co. 125 Ill. 600; Languist v. Chicago, 200 111. 69.

The fact that the Proteus was a requisitioned vessel, and that her owner was deprived not only of the power to dispose of her by sale, but of the right to her use, at least until after March 1, 1920, was an important factor in measuring the damage sustained at the time of her loss, and one which the Circuit Court of Appeals plainly disregarded. The courts have recognized that vessels requisitioned because of war conditions suffered thereby a decrease in value to their owners. The Kia Ora, 246 Fed. 143; Harries v. Shipping Controller, supra; Shipping Con

Opinion of the Court.

268 U.S.

troller v. Lloyds Royal Belge, supra. Braceville Coal Co. v. People, 147 Ill. 66; International News Serv. v. Associated Press, 248 U. S. 215. The original cost of the Proteus, which was less than half of the amount awarded by the Circuit Court of Appeals as measuring her value at the time of the loss, was entirely disregarded as a factor in ascertainment of the measure of the damage. The Proteus was of a special type of construction, which would have operated to reduce her sale value in the open market. That fact was disregarded by the Circuit Court of Appeals. The application of the scale of valuation fixed for vessel property by the Advisory Board of the War Risk Insurance Bureau at the time of her loss, indicates that the Proteus was worth less than $700,000, according to the Advisory Board's scale.

Mr. C. C. Burlingham, with whom Mr. Van Vechten Veeder and Mr. A. Howard Neely were on the briefs, for respondents.

MR. JUSTICE BUTLER delivered the opinion of the Court.

August 19, 1918, the steamship Cushing, owned by the petitioner, Standard Oil Company, and the Proteus, owned by the respondent, Southern Pacific Company, and operated by the Director General of Railroads, collided. The Proteus and her cargo were lost. Petitioner and respondents filed their petitions for limitation of liability. R. S. $$ 4283–4285. Admiralty Rule 54. The proceedings were consolidated. The District Court found that both vessels were at fault and referred the question of damages to a commissioner. 266 Fed. 570. He reported that there should be awarded on account of the loss of the Proteus $750,000, with interest. The report was confirmed and decree entered, November 28, 1922. 285 Fed. 617. Petitioner and Southern Pacific Company appealed; the Director General did not appeal. The petitioner maintained that the Cushing was not at fault and sought reversal on that ground. The Southern Pacific Company contended

146

Opinion of the Court.

that the commissioner's valuation of the Proteus was too low. The Circuit Court of Appeals affirmed the fault of the Cushing and held that the value of the Proteus at the time of the collision was $1,225,000; and the decree of the District Court was modified accordingly. 292 Fed. 560. The petition to this Court for a writ of certiorari alleges that at the time of the collision the Proteus was under the sole control of the Director General of Railroads, and that, if the vessel had not been lost, it would have continued in his control until March 1, 1920; that the claim of the Southern Pacific Company was against the Standard Oil Company and the Director General, who were joint tortfeasors causing the loss of the Proteus, and that, after the expiration of the term of the Circuit Court of Appeals, petitioner learned that a final settlement had been made between the Southern Pacific Company and the Director General, by which the liability of the latter for the loss of the Proteus was satisfied by payment of $750,000 or by adjustment and settlement on that basis. And the petition asserts that thereby any claim of the Southern Pacific Company against petitioner was extinguished, because a settlement with one joint tortfeasor precludes recovery from the other for the same loss. The petition was granted. 263 U. S. 696. Later, the order granting the writ was vacated as to personal injury, cargo and passenger claimants against whom no error was assigned. 263 U. S. 681. By leave of this Court, additional testimony relating to the settlement was taken in accordance with paragraph 2 of rule 12. 265 U. S. 569.

The material facts may be briefly stated. December 28, 1917, the President took over the combined rail and water transportation system of the Southern Pacific Company and its subsidiaries.

February 19, 1919, the Director General and the owner made a contract in respect of the operation and upkeep of the properties and for the compensation to be paid for their use during federal control. By it, the Director General was required to pay for

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property destroyed and not replaced. December 19, 1922, final settlement under the contract was made. The total amount of all items claimed by the company was $54,252,694.57. There was paid $9,250,000 as a lump sum; and that was accepted in full satisfaction of all claims, with certain exceptions not here material. The company claimed $1,268,090.26 for the Proteus and $16,663.80 for the lighter Confidence. The Railroad Administration kept a record showing how the lump sum was arrived at. In this record there was allocated on account of the Proteus and the Confidence a lump sum of $885,000, but this was not in any wise communicated to the company. There was no agreement as to the value of the Proteus or as to the amount included in the lump sum on account of her loss or on account of any other item. On the facts disclosed, it is impossible to attribute to her loss any particular amount.

The rule of the common law that one who is injured by a joint tort and accepts satisfaction from one of the wrongdoers cannot recover from the other does not apply. By reason of the immunity of the United States from suit, the Southern Pacific Company did not have the same remedy against the Director General that an owner would have against a private charterer. Waiver of sovereign immunity from suit was not broad enough to permit an action in tort by the company against the Director General for the loss of the Proteus. See $ 10, Federal Control Act, c. 25, 40 Stat. 456; Dupont de Nemours & Co. v. Davis, 264 U.S. 456, 462; Missouri Pacific R. R. v. Ault, 256 U. S. 554. In respect of that, there was no breach of duty owed to the respondent by the Director General as a common carrier. As was said in The Western Maid, 257 U. S. 419, 433, " The United States has not consented to be sued for torts, and therefore it cannot be said that in a legal sense the United States has been guilty of a tort.” At the time of the collision, the Director General was a special owner having exclusive possession and con

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trol of the vessel; the Southern Pacific Company was the owner of the reversion. Together they had full title, and joined in the petition for limitation of liability. Adjustment of their interests under the contract could be made before as well as after the end of litigation. No question of tort or negligence on the part of the Director General was involved. The settlement had no relation to the wrongful act of petitioner and did not affect its liability. Ridgeway v. Sayre Electric Co., 258 Pa. 400, 406. Petitioner is not entitled to dismissal as against the Southern Pacific Company. Nor is the Director General bound by the decree of the District Court as to the amount of damages. On appeal in admiralty, there is a trial de novo. The whole case was opened in the Circuit Court of Appeals by the appeal of the Southern Pacific Company as much as it would have been if the Director General had also appealed. Reid v. American Express Co., 241 U. S. 544; Watts, Watts & Co. v. Unione Austriaca, 248 U. S. 9, 21; The John Twohy, 255 U. S. 77; Munson S. S. Line v. Miramar S. S. Co., 167 Fed. 960. And see Irvine v. The Hesper, 122 U. S. 256, 266.

It is fundamental in the law of damages that the injured party is entitled to compensation for the loss sustained. Where property is destroyed by wrongful act, the owner is entitled to its money equivalent, and thereby to be put in as good position pecuniarily as if his property had not been destroyed. 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. The Baltimore, 8 Wall. 377, 385. Where there is no market value such as is established by contemporaneous sales 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 proba

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