The Warren

25 F. 782, 23 Blatchf. 282, 1885 U.S. App. LEXIS 2329

Opinion

And the court also made and filed the following opinion:

Blatchford, Justice.

The Olyphant was in fault because, having the Warren on her starboard side, and being bound to avoid her, she undertook to pass between her and the New York shore, instead of passing under -her stern, knowing the destination of the Warren, and seeing her drift, and knowing that the Warren could not reasonably suppose that the Olyphant would attempt to pass between her and the New York shore. The Olyphant was also in fault in her excessive rate of speed,—a rate beyond that of 10 miles an hour, prescribed by section 1 of chapter 321 of the Laws of New York of 1848, for steam-boats passing up and down this part of the East river. If her speed had been less, there would have been no collision. The Warren was in fault in starting up when she saw that the Olyphant was intending to pass across her bows, and was coming on at full speed. I fix the value of the Olyphant at the same sum as the commissioner and the district court.

On the new proofs in this court, I think the value of the boiler should be fixed at ll^OO.¹

Although the district court divided the damages, it gave full costs to the libelant Shortland. He contends that if the damages were divided the costs should have been. According to the decision in The America, 92 U. S. 432, 438, the costs in the district court, of both parties, should have been equally apportioned. And as both parties have appealed, and the decision here is substantially the same as that in the district court, it seems proper that the costs of both parties in this court should be equally apportioned. The America, ubi supra.

1 The testimony of the libelant in the circuit court as to the value of the boiler of the Olyphant was to the effect that before he sold the boiler he advertised it several times, and notified everybody ho thought wanted'a boiler, that a new one like it would be worth $3,500, but he had to sell this one as a second-hand boiler, and could not obtain more than $1,700 for it, which was the sum for which it was finally sold by him. See the opinion of the district court on exceptions to the commissioner’s- report, fixing the value of the boiler at $3,500, at 17 Fed. Rep. 701.—[Ilnp.