The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918. Page: 17
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THE MARY B. CURTIS
part of the owners of the barge. The evidence shows that the anchor
had been carried in that position for two weeks before the collision.
The barge was during that time being navigated up and down the nar-
row channel of the canal, where collisions were for that reason at least
probable, even where due care was exercised, and quite likely to occur,
where it was wanting. The officers of the barge also knew that the
dredge was in the canal, and that the barge would necessarily have to
pass and repass it. Under these conditions, we think the captain of the
barge should be held, in the exercise of ordinary care, to have reasona-
bly anticipated the likelihood of damage resulting from such a position
of the anchor, and that the unnecessary carrying of the anchor in a po-
sition where it might strike a vessel below the water line would be neg-
ligence on his part. For this reason, we think that the decree fasten-
ing a moiety of the responsibility upon the Sun Company as owner of
the barge was a proper one. It seems reasonably certain that a colli-
sion, had there been no anchor on the side of the barge, would not have
caused a sinking of the dredge, and practically all the damage was the
result of the sinking of the dredge. However, the captain of the Cur-
tis knew of the position of the anchor on the side of the barge, and
was not without fault in navigating the fleet with the anchor of the
barge in an improper position, aside from the other fault to be attrib-
uted to him.
[41 Complaint is made of the amount of damages awarded the libel-
ant under the final decree, both because of the method of proof of the
items constituting it and because of its alleged excessive amount. The
damages allowed, apart from demurrage and interest, were supposed
to represent the cost to the libelant of raising and repairing the sunken
dredge. The items consisted of labor and material. The method of
proving the items of labor cost is not criticized. Criticism is made of
the method of proving the cost of materials used for raising and re-
pairing the dredge, as being by secondary and hearsay evidence. Ac-
cording to the course of business of libelant, material was purchased
on order blanks in quadruplicate, and for its general use; one copy of
the order going to the seller, and three being retained by the purchaser.
It was the duty of the employs of the libelant to check the material re-
ceived against the amount ordered, as shown by the order blank, and
to distribute the material to the different jobs for which it was used,
and to mark the distribution on the order blank. The libelant paid for
the material on bills of the seller which corresponded with the approv-
ed order blanks, and the amounts paid were distributed on the books of
the libelant to the different jobs, according to the distribution made by
the employs of the libelant, who received and handled the material.
First-hand proof was not made of the receipt and actual use of the ma-
terial, charged to the raising and repair of the sunken dredge, for that
particular job of work. It is manifest that a requirement of first-
hand proof of that character for each item of material used in the rais-
ing and repair of the dredge would be so burdensome and costly as to
be prohibitive, if it could be produced at all. We think proof of the
items, by proof of the usual course of business of libelant, and of their
correctness according to that course of business, was sufficient as a
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The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918., legislative document, 1918; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38821/m1/32/: accessed May 28, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.