The opinion
L. HAND, Circuit Judge
(dissenting).
I think that, on the record as it stands, the judge was wrong in reversing the Commissioner. I agree with my brothers’ statement of the law; the owner of a vessel wrongfully injured has no unconditional right to have her restored to the same condition in which she was before: the phrase, “restitutio in integrum,” is one of those scraps of Latin' which serve only to bemuse the user and usually the hearer. My brothers’ quotation from Judge Brown’s opinion in The J. T. Easton 1 I accept in full; but, although the Commissioner did not grasp it, I am disposed to read his finding — the whole of which I quote in the margin 2 — as meeting Judge *36 Brown’s rule. He apparently accepted the testimony of Bagger, who, unless I am wrong, meant to say that the scow would remain “inferior for practical use” unless the full amount was spent on her. I submit that this is the inevitable consequence of the following answer: “Now in your opinion, Mr. Bagger, was the effective strength of the keelson impaired by the damage sufficiently to require renewal of the keelson, or not? It was.” If I were forced to decide upon this record, in spite of the Commissioner’s error of law I think that I should affirm his award because of his finding, which was certainly not “clearly erroneous.” However, I should greatly regret being forced to do this because his meaning is certainly not clear; and we are not forced to such a course. We can send the report back to him and ask him to answer categorically how much money it was necessary to spend on the scow so as not to “leave her essentially depreciated in her market value, or inferior in practical use.” That is what I think we should do.
24 F. 95, 96 .
“In addition to these two witnesses, the libellant produced Mr. Bagger, a marine surveyor and also a naval architect. He agrees that the injured keel-son should be renewed according to libellant’s survey. He estimates that the keelson has been weakened to the extent of 33 per cent, and explains the injurious effect of the blow of the falling steel beam upon the fibers of the wooden keel-son. I am impressed by bis testimony.
“The respondent’s experts, on the other hand, minimize this injury, stating that in their opinion the driving of a few nails would cure the trouble. I do not agree with this.
“It is generally admitted by all wit *36 nesses that the market value of the vessel has been lowered.
“The owner has -the right in law to keep his vessel unrepaired and sue for damages, if he so desires. It is his privilege and not that of the tort feasor.
“I accept the estimate of the cost of repairs made by the Dry Dock Company in the sum of $6,550. The rule of restitutio in integrum applies, and that rule requires my acceptance of the libel-lant’s survey and its estimate of repairs.”