## Facts

- In 1958, barge BA-1401 sank in Chesapeake Bay; repair and recovery were estimated to exceed its purchase price and insurance coverage, and it was treated as a constructive total loss by its then-owner.
- Hewlett, a contractor-salvor, raised and refloated the barge in 1959 and received it in satisfaction of his salvage claim; he made temporary repairs and brought it to Norfolk.
- Although the barge had no commercial market value as a vessel and could be sold only as scrap metal, it remained physically usable for carrying weather-resistant cargo (e.g., logs, pilings) and was used on at least one occasion as a pontoon/caisson.
- On September 28, 1960, while BA-1401 was afloat and secured alongside a pier on the Elizabeth River in South Norfolk, Virginia, it was struck by another barge being towed by the tug Evelyn.
- The collision caused a dent in BA-1401’s starboard side; the hull was not pierced, seaworthiness and utility were not impaired, and scrap value was unchanged.
- Estimated cost to repair the dent was approximately $2,895; the parties agreed repairs would not increase the barge’s market value given its scrap-only status.
- C.G. Willis Co., Inc., claimant of the tug and tow, conceded negligence and contested only whether any compensable damages were shown.

## Issues

1. Whether a vessel owner may recover more than nominal damages for a collision that causes physical injury but does not reduce the vessel’s market (scrap) value or utility.
2. Whether a prior determination that a vessel was a constructive total loss limits or bars later recovery for subsequent tortious damage.
3. Whether reasonable cost of repair may be the proper measure of damages when market value is minimal but the property remains in service.

## Decision

- The Fourth Circuit reversed the district court’s award of $1 nominal damages and remanded.
- The court directed an award measured by the reasonable cost of repairing the dent, subject to ordinary limits of reasonableness and restoration without betterment.
- The court held that the prior constructive total loss treatment did not eliminate the owner’s right to recover for later negligent physical injury while the barge remained in use.
- Chief Judge Haynsworth dissented, favoring nominal damages where repair cost substantially exceeds value and the dent did not reduce value or utility.

## Legal Principles

- The aim of collision damages is to place the injured party as nearly as possible in the pre-collision position (restitution in kind through monetary compensation).
- Although diminution in market value is a common measure for partial injury, it is not exclusive where market value is an inadequate measure of the owner’s actual loss.
- Reasonable cost of repair may be awarded even if it exceeds market value when the property has continuing practical use and repair restores the pre-injury condition.
- A prior constructive total loss designation (often reflecting an economic/insurance decision at an earlier time) does not permanently fix damages at nominal amounts for later tortious injury.
- Repair-cost recovery is limited to repairs that are reasonable, necessary, and do not improve the property beyond its pre-injury condition.

## Conclusion

The court required substantial damages based on reasonable repair cost for a negligently caused dent to a working barge, rejecting a nominal-damages approach grounded solely in scrap-only market value and an earlier constructive total loss determination.


Hewlett v. Barge Bertie, 418 F.2d 654 (4th Cir. 1969)