Glaspy v. Cabot

If the master of a vessel, which has drifted upon a beach in a damaged condition, sells her, without right, to a person who, after repairing her, getting her off, and taking her into port, sells her hull to another person, the latter is liable for the conversion of the hull; and, in an action against him by the owner, the measure of damages is the market value of the hull at the time and place of the conversion. If the master of a vessel, which has drifted upon a beach in a damaged condition, sells her, without right, to a person who repairs her, gets her off, and takes her into port, the buyer is liable for her conversion; and, in an action against him by the owner, the measure of damages, if there is no market at the place where she lay when bought, is her value there, determined by her value at a port where there is a market for such a vessel, less a reasonable allowance for the probable cost of repairing her, getting her off, and taking her into port, and for diminution in her market value on account of having been ashore, and for the risk of getting her to market.

Two ACTIONS OP TOBT. The first action was for the conversion of “the hull of the schooner Mary A., the property of the plaintiff.” The second action was for the conversion of “one schooner, called the Mary A., together with the sails, rigging, anchors, chains, small boat, and other appurtenances belonging to said vessel,” alleged to be the property of the plaintiff. The answer in each case denied that the property mentioned in the declaration was the plaintiff’s property, and denied any conversion. Trial in the Superior Court, without a jury, before Pitman, J., who allowed a bill of exceptions, in substance as follows: It appeared that the schooner, with the appurtenances above mentioned, was owned by the plaintiff, who resided in St. John, New Brunswick, where the vessel also belonged and was registered ; that she was built in 1868, was of sixty-four tons burden, and was one of a class of vessels called “ woodboats ” at St. John, which are small schooners with two masts but no bowsprit, and much used in the transportation of wood in the vicinity of St. John, and in or about the Bay of Fundy; that on September 6, 1880, while on a voyage from St. John to Salem, with a cargo of bark, under the command of the plaintiff’s son, Charles Glaspy, she went ashore on the bar off Annisquam Harbor, where she remained about .twelve hours, and then floated over the bar, having lost an anchor and chain and disabled her rudder, besides suffering other damage, filled, and again drifted ashore on Coffin’s Beach, so called, inside the harbor; that she remained there until September 13, 1880, when Patrick Murphy, one of the defendants in the second case, came to Annisquam and offered the master, whom he met at the railway station in Gloucester, $80 for her as she lay, with her appurtenances, which offer the master accepted, and thereupon delivered her to Murphy; that the crew of the vessel had left her two days after she went ashore, and, at the time of this sale, the vessel had no one on board; that she was in a damaged condition, and was. opened and strained so that the tide ebbed and flowed in her, and she was somewhat imbedded in the sand on the beach ; and that the sale was made without a previous survey of the vessel being held, without consultation or advice on the part of the master, and without advertising or offering her for sale by public auction. The plaintiff’s evidence tended to show that the sale by the master was not justified by necessity, and that the master acted improperly in making it. The defendant’s evidence tended to show that the schooner could not have been got off and repaired without an expense exceeding her value when repaired, and that the master acted, under the circumstances, for the best interest of all concerned. It appeared that, some days after the above sale of the vessel, the defendant Power, at Murphy’s request, who wrote to him telling him what he had done, and asking him to come there, sent to Annisquam a small vessel owned by him and used by him in his business of wrecking, provided with spare anchors, chains, pumps, and other wrecking material, and manned by a crew of six men employed and paid by him. With this assistance, and the services of one or more persons employed by him at Annisquam, he got the schooner off from Coffin’s Beach, recovered her anchor and chain, took her to the other side of the harbor, repaired her partially, and then sent her to Boston in charge of one of the persons employed at Annisquam and of some of the men sent by Power. A spare pump, sent down on Power’s vessel, was in constant use on the way to Boston, besides the schooner’s own pump. Some weeks after her arrival at Boston, she was broken up by the defendants in the second action; and, on December 30, 1880, her hull was sold by them for $200 to the defendant Cabot, who then took possession of and used it. After the vessel arrived at Boston, and before the sale to Cabot, the plaintiff came to Boston and had one or more interviews with the defendants in the second action, at which he demanded the vessel, and made them certain offers of money for her, which were refused. This was the first knowledge the defendants had that the sale was disputed. No demand was made at any time upon the defendant Cabot, and he had no notice or knowledge of the plaintiff’s claim at the time of his purchase of the hull. The plaintiff’s evidence tended to show that these offers were made in repayment of the amount paid for the vessel, and for salvage claim on the same, and “ rather than to have any trouble.” The defendant’s evidence tended to show that they had expended about $200 in getting her off and taking her to Boston and repairing her, exclusive of their own services and the use of the schooner and tools; that the offers made were not sufficient to make good their outlay, and were refused by them in part for that reason. The necessity and amount of these expenditures were contested by the plaintiff. The plaintiff offered no direct evidence as to the value of the' vessel and appurtenances, as she lay on Coffin’s Beach, at the time of the sale by the master to Murphy, and no evidence as to the separate value of the hull at any time, except the sale to Cabot. He offered evidence tending to show that, in 1876, he paid $600 for one half the vessel; that, in 1877, the other half, with the right to sail her on shares, was sold for the same price, and that, in 1878, he bought this other half for $575. The market value of the vessel and appurtenances at St. John, as she was before going ashore, was estimated by.the plaintiff’s witnesses at from $1000 to $1400. The plaintiff’s evidence further tended to show that the vessel could have been put in as good condition as before she went on the bar at Annisquam for from $150 to $200. The defendant’s evidence tended to show that the market value of the schooner in Boston or vicinity, as she was before going ashore, would not exceed $400 or $500, and that this was so partly on account of her British register and the consequent inability to register her as an American vessel, and partly on account of her build and model above described, schooners of that description not being in general use and not in demand here. The defendant Power testified that, in Boston, she was not worth more than “ the stuff you could get off her,” even before her damage; that such soft wood vessels with iron fastenings were not expected to last over nine years. The defendants’ evidence also tended to show that the value of the vessel and appurtenances, as she lay on Coffin’s Beach at the time of sale, subject to all risks and expenses, would not be over $100 or $200 for any purpose; and that the repairs, which the plaintiff’s witnesses testified could be made at Annisquam for $150 or $200, would not be sufficient to make the vessel seaworthy. There was also conflicting evidence as to the extent of damage sustained by the schooner, the condition of her timbers, fastenings, and appurtenances, and as to the durability of vessels built of similar material, and the length of time in which they wear out. There was no evidence that she was a peculiar or unusual vessel, except as above set forth. Upon all the evidence in the case, the judge found that the sale was not justifiable; and that the defendants Power and Murphy were jointly liable for the conversion of the vessel and appurtenances, and that the defendant Cabot was liable for the conversion of the hull. The defendants asked the judge to rule that the defendants Power and Murphy, if liable, were liable only for the value of the schooner with her appurtenances at the time of the attempted sale to Murphy and in her then situation ; and that, in estimating the damages for her conversion, neither her value to her owners nor her market value at her home port was admissible, but that her value as she then lay upon Coffin’s Beach, for any purpose, subject to all risks and expenses, was the measure of damages. But the judge refused so to rule; and, being of opinion that, upon the above evidence, there was not, in the proper and usual sense of the term, any market value for the vessel, as such, at the time and place of conversion, ruled that the plaintiff might recover of the defendants Power and Murphy the market value of the vessel and appurtenances at St. John, less a reasonable allowance for the probable cost of getting her off, repairing her, and getting her there, less also a reasonable allowance for diminution in her said market value on account of having been ashore; and that he might recover against the defendant Cabot the 'value of the hull at the time and place of the conversion by him; and assessed damages for the plaintiff at $550 in the first action, and $200 in the second action, with interest from the time of conversion. The defendants alleged exceptions.