In re Hibbard

L. HAND, Circuit Judge (after stating the facts as above). The French plan either was, or it was not, such that the counties were bound to use it; the same is true of Ripley’s estimate. The commissioner has found that the plan 'was practicable, and, though he has not expressly said so, his report is consistent only with the finding that it limits the counties in their damages. We start with that assumption. So far as Ripley’s estimate covered the repairs, we cannot see that it makes any difference that it was not in the form of an offer. It was equally available, and the counties might not reject it, any more than any other victim of a tort may reject the best 'means of recoupment at hand. However, there is considerable doubt whether it covered that testing of old material which the counties’ experts demanded. If it did not, Ripley would presumably not have stood by it, but would have required a larger sum. The commissioner appears to have thought that the added expense could be covered by the owner’s engineering charge. That would be true, if he did the testing, and it resulted • in no added loss of material; but it is not apparent that either is true. We can solve this only by saying that, in finding the plan practicable, the commissioner must be understood to have found it practicable as French and Ripley proposed it; that is, with their tests and their replacements. If so, it follows that Ripley’s estimate, wMch was the equivalent in our judgment of a bid, became the limit upon their recovery. There remains, then, only the question of what it did not cover, upo.n which it does not seem to us necessary to say much. Of the extras which the commissioner allowed at $4,000 we allow for the railing, painting, and bond $2,750, to which we add 20 per cent, of their cost, or $3,300 in all, making $103,-300 as the basic price. It seems to us that Hibbard has not proved that the counties’ engineers were fitted to supervise the construction, which, being altogether novel, might reasonably have required close scrutiny. The eustomary allowance for this is 10 per cent., making the total award $113,630, instead of $129,558. As the whole estimate is plainly speculative at best, we will reduce the award by $15,000, making it $115,000, instead of $130,000. The commissioner allowed interest from November 22, 1922, five months after the collision, at which time the draw could have been completed. Had the bridge been repaired, this would, of course, have been proper, because by that time all the money would have been expended. However, none of the repairs were ever made, and Hibbard argues that in this circuit interest cannot be allowed in the admiralty, except upon actual repairs. We know of no such doctrine, and regard the question as determined by the same rules which apply to other forms of action, except that the award is always discretionary. The allowance of interest has in recent years been granted with increasing liberality, and the ease at bar falls within our rulings in Stephens v. Phoenix Bridge Co. (C. C. A.) 139 F. 248, Demotte v. Whybrow, 263 F. 366 (C. C. A. 2), and Lehigh Valley R. R. v. State of Russia, 21 F.(2d) 396 (C. C. A. 2). Before the claim of the counties had been filed, the items now allowed by us were already fixed, or capable of easy ascertainment. Ripley’s estimate had been made, the value -of the extras could be learned from existing prices for such work, and the percentage for supervision was established in such cases. Perhaps the commissioner might have awarded interest from an earlier time, but, as the point is not raised, we need not consider it. Decree modified, by reducing the award to $115,000, and, as modified, affirmed. No eosts.