(concurring in part and dissenting in part).
I agree that the case should be returned for the award of damages; the showing of direct injury by loss of use was too specific to justify its ignoring or to cause fear lest a windfall be granted appellant. But I should prefer to accept the careful, reasoned conclusions of the learned and experienced master, who appears to have applied a reasonable yardstick in determining the amount of loss. The demanding and profitable market was in the East, and the profit on carriage to this market by sea over that by land was obviously the difference between the expense by rail and the *68substantially less rates by oil tanker. The rail rate was fixed during all periods here involved, and the only question was to fix the cost of transportation by tanker. This the master did by taking the reasonable costs of the last prior, and just concluded, trip by this tanker, checked also by the testimony of an experienced expert and by the government allowances made when this vessel was taken over upon its recommissioning. That no such transportation was actually had here seems no answer; it was prevented by the collision, and reasonable, even if not mathematically provable, rates of damage are all that can properly be required. Matarese v. Moore-McCormack Lines, 2 Cir., 158 F.2d 631, 637, 170 A.L.R. 440; Package Closure Corp. v. Sealright Co., 2 Cir., 141 F.2d 972, 979; Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563, 51 S.Ct. 248, 75 L.Ed. 544.
The only question would appear to be a theoretical one under the circumstances, namely, whether there should be any deduction for salvage if the oil not sent to Marcus Hook was actually refined and sold at Houston. Since the parties did not bring this issue up, it may be concluded that there was none, particularly as there would seem deductible at most not an amount received, but a net profit realized. And since this issue would be one merely of mitigation of damage, it would seem that it must be raised as a defense by appellee. Furthermore appellant was prepared, but not permitted, to show that the oil was actually transported by rail to Marcus Hook. The recommendation of. the master seems therefore a fair basis for the entry of judgment at once.
I sympathize with Judge CHASE’S desire to avoid an allowance based upon fictitious values. But, in limiting recovery to costs based only upon an actual transportation, I think he is going beyond what is reasonable under the circumstances, if not beyond what is possible of proof. In fact, the yardsticks he suggests seem to have a comparable uncertainty — as would any under the circumstances. For one at least of the figures used in making the subtraction to get the answer must always be a “proven,” *.&, an assumed, one which is not based on an actual happening to the oil in question.
As to the insurance premiums, of course they should not be added in twice or duplicated, as perhaps they were before, though this is not made wholly clear. But if the matter does come up on the re-reference, then it seems clear that any part of the premiums charged either directly or as apportioned overhead expenses to this vessel are properly included in loss of the ship’s use. I add that, were there no better method of computing loss available, then I should regard the alternative basis measured by interest on invested capital as quite a proper one to employ.