Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered explaining grant of motion 28 for summary judgment by Nothern Assurance and denial of motion 32 for summary judgment by the Heards. Judgment shall enter for Northern Assurance declaring its entitlement to the entire insurance proceeds from the Town of Winthrop deposited in the Registry of this Court.(Woodlock, Douglas)

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1
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
NORTHERN ASSURANCE COMPANY )
OF AMERICA )
)
Plaintiff, )
) CIVIL ACTION NO.
v. ) 09-10654-DPW
)
CAROLE AND DENNIS HEARD, )
TOWN OF WINTHROP and MASSACHUSETTS )
INTERLOCAL INSURANCE ASSOCIATION )
)
Defendants. )
MEMORANDUM AND ORDER
November 10, 2010
The question presented in this case is whether the owners of
a recreational sailboat may recover detention damages for loss of
the vessel’s use during their planned vacation. A late
nineteenth century Supreme Court case contains categorical
language on the question, leading circuits which have recently
addressed the issue to conclude that detention damages are
available only upon proof of loss of commercial profits and not
for loss of recreational use. In two earlier readings of the
case more hospitable to the recognition of recreational loss,
Judge Learned Hand and thereafter Justice Cardozo, suggested that
there is no meaningful difference to be found in any distinction
between loss of use for profit or for recreation. Judge Hand and
Justice Cardozo reasoned that the determinative issue should be
whether the damages from the loss of use for either purpose can 
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1 An allision involves contact by a moving vessel, here the
Harbor Master’s craft, with a stationary vessel, here the
RENAISSANCE. By contrast, a collision occurs when there is
contact between two moving vessels. The term allide "is used
only in a special context in reference to ships in admiralty law.
When two ships allide , one of them is stationary; ships collide 
when both are moving before impact." BRYAN A. GARNER, A DICTIONARY
OF MODERN LEGAL USAGE 44 (2d ed. 1995) (emphasis in original).
Garner, who is also editor-in-chief of the current BLACK’S LAW
2
be proven adequately. Although I find the approach of Judge Hand
and Justice Cardozo persuasive as a policy matter, the
categorical imperative denying recovery for recreational loss has
never been expressly abandoned by the Supreme Court.
Accordingly, I must reluctantly allow summary judgment against
the vessel owners here leaving unresolved the issue whether they
can, in fact, prove the value of their recreational loss. 
I. THE RISE AND FALL OF THE RENAISSANCE 
During the summer of 2007, Carole Heard, a postal worker,
and her husband Dennis, who worked for the Massachusetts Bay
Transportation Authority, arranged their vacations so that they
could use their boat the RENAISSANCE for 10 weeks from July 26,
2007 through October 8, 2007. The RENAISSANCE, variously
described in the record as a 46 to 50 foot sloop, was built in
1981. The Heards purchased her in 2002, rebuilt her over several
years and then relaunched her late in 2006.
On July 25, 2007, just as the vacation period was to begin,
the RENAISSANCE was damaged when the Harbor Master’s boat for the
Town of Winthrop allided 1 with it. The RENAISSANCE was towed to 
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DICTIONARY, has more recently observed that “[i]n modern practice,
‘collision’ is often used where ‘allision’ was once the preferred
term.” BLACK’S LAW DICTIONARY 88 (9th ed. 2009).
2 The instant litigation was brought by the Heards’ insurer,
as subrogee. Northern Assurance paid $115,636.09 to repair the
physical damage to the RENAISSANCE. The Town of Winthrop agreed
to settle the subrogation claim of Northern Assurance for the
statutory limitation of $100,000 on damages caused by public
employees acting within the scope of employment. MASS. GEN. LAWS
ch. 258, § 2. The monies have been paid into the Registry of
this Court. Because settlement recovery from the Town of
Winthrop is less than the repair costs for the RENAISSANCE when
coupled with the detainer damages claimed by the Heards, this
case decides whether Northern Assurance may retain the entire
$100,000 settlement amount or must share the recovery on a pro
rata basis such as that which would be established if the Heards
were able to prove their asserted detention loss of $50,000.00.
Assuming detention loss in that amount were compensable and
proven in this case, the total damages sustained by the two
parties would be $165,636.09, and the pro rata allocation (69.8%
to Northern Assurance; 30.2% to the Heards), would result in an
award, without inclusion of accrued interest, of $69,800 to
Northern Assurance and $30,200 to the Heards.
3
a boat yard until repairs were completed in the spring of 2008.
The Heards sought a bareboat charter replacement, but found
the $5,000 per week charge for a comparable vessel beyond their
reach. When they claimed reimbursement for the loss of use of
the RENAISSANCE during their planned vacation, they were rebuffed
by their insurer, Northern Assurance. In this litigation,
Northern Assurance and the Heards seek distribution of insurance
money available from the Town of Winthrop, with the Heards
contending they should receive payment from these funds for the
loss of use of their vessel. 2 
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3 The Supreme Court in The Conqueror, 166 U.S. 110 (1897) , 
said “the loss of profits or of the use of a vessel pending
repairs, or other detention, arising from a collision or other
maritime tort, [is] commonly spoken of as ‘demurrage.’” Id. at
125. Professor Schoenbaum has cautioned that “recovery known
variously as loss of use or detention damage . . . is sometimes
loosely called demurrage, but this term is incorrect. The term
demurrage technically is the contractual sum given a shipowner
for the use of his ship beyond the time fixed by a charter
party.” THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW § 14-6 n.27
(4th ed. 2004). Consequently, I will refer to the loss of use
claimed in this case as detention damage.
4 
II. THE WAKE OF THE CONQUEROR 
At the end of the nineteenth century, the Supreme Court
declined to award what it called “demurrage” 3 to Frederick W.
Vanderbilt, the immensely wealthy grandson of the Commodore, see
generally T.J. STILES, THE FIRST TYCOON: THE EPIC LIFE OF CORNELIUS
VANDERBILT (2009), for the improper detention by customs
authorities of his foreign built pleasure yacht after it had been
sailed across the Atlantic. The Conqueror , 166 U.S. 110 (1897).
The Supreme Court rejected the customs duty grounds for the
detention, holding that it was not the intention of Congress to
make such a “seagoing, schooner rigged, screw steamship, 182 ½
feet long, nearly 25 feet wide, and of 372 tons burden” a
dutiable article. Id. at 114-121.
The district court had awarded $21,742.24 in damages to Mr.
Vanderbilt for losses arising out of the improper detention of
the CONQUEROR, $15,000 of which was “for loss of use of the boat
while detained” at a rate of $100 per day. Id . at 125 (internal 
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5
quotation omitted). The Supreme Court refused to uphold the
$15,000 award for loss of use, finding the evidence
“insufficient.” Id . at 134. The Court took judicial notice of
the duration of “the yachting season in our northern waters,”
concluding that the vessel “probably would have been laid up at
her wharf” for more than half the time used to calculate
detention damages. Id. It found “not the slightest evidence”
that “her owner might have desired her for use in a winter’s
cruise to tropical waters.” Id. The Court additionally declined
to credit testimonial estimates of the cost of loss of use
because the amount “was so great as, if not to shock the
conscience, at least to induce the belief that it must have been
estimated by witnesses who were most friendly to the owner.” Id. 
Apart from its discussion of the evidence, the Court set the
framework for its sufficiency analysis in categorical terms based
on the nature of the loss. The Court acknowledged that it was
“too well settled . . . to be open to question” that “the loss .
. . of the use of a vessel . . . is a proper element of damage.” 
Id . at 125. However, the Court stated that, as a basis for such
damages:
[There] must be a pecuniary loss, or at least a
reasonable certainty of pecuniary loss, and not a mere
inconvenience arising from an inability to use the vessel
for the purposes of pleasure . . . . . In other words,
there must be a loss of profit in its commercial sense.
In all the cases in which we have allowed demurrage, the
vessel has been engaged, or was capable of being engaged,
in a profitable commerce, and the amount allowed was 
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4 The Supreme Court distinguished a decision by the second
of the four Judges Lowell of this court awarding recreational
loss damages, The Walter W. Pharo , 29 F.Cas. 123 (D. Mass. 1870),
with the dismissive observation that “the total allowance was but
$80.” The Conqueror , 116 U.S. at 129. It bears noting that the
second Judge Lowell was considered, as Professor Chafee
delicately observed, to be a jurist who
realized keenly the human factors of a case, and had a
remarkable instinct for perceiving on which side real
justice lay. One of the bar of his court said: ‘He would
not, unless the law and the evidence compelled him, do
what he thought was a practical injustice. And it seldom
happened that he found himself so compelled. He had a
marvelous talent for escaping from that difficulty.’
Consequently, some called him a wayward judge,
independent to the verge of willfulness in establishing
justice.
Zechariah Chafee, Jr., John Lowell, in XI DICTIONARY OF AMERICAN
BIOGRAPHY 466, 467 (1933) (internal citation omitted).
5 See Cent. State Transit & Leasing Corp. v. Jones Boat
Yard, Inc., 206 F.3d 1373, 1376 (11th Cir. 2000) (“Appellant
[owner of a recreational vessel] is entitled to receive loss of
use damages only if able to prove, with reasonable certainty,
that profits had actually been, or may reasonably be supposed to
have been, lost.”); Snavely v. Lang , 592 F.2d 296, 297 (6th Cir.
1979) (“ The Conqueror has been interpreted as creating an iron-
clad rule that under federal maritime law demurrage is not an
6
determined either by the charter value of such vessel, or
by her actual earnings at about the time of the
collision.[ 4 ] 
Id . at 133. There was no credible evidence that Mr. Vanderbilt
had such use in mind for his yacht , the CONQUEROR . Id. at 133-
34. 
Relatively recent appellate decisions have, with greater or
lesser degrees of analysis, treated The Conqueror ’s language as
establishing that the loss of use of a private pleasure boat is
not compensable. 5 The current consensus view has been concisely 
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allowable item of damage for loss of use of a private pleasure
craft.”); Oppen v. Aetna Ins. Co. , 485 F.2d 252, 257 (9th Cir.
1973) (“Under federal maritime law loss of use of a private
pleasure boat is not a compensable item of damages.”); Thomson v.
United States , 266 F.2d 852, 856 (4th Cir. 1959) (“Demurrage is
not allowable damage in a case of this sort, for valuation of the
loss of use of a pleasure craft is highly speculative and
immeasurable.”).
7
summarized as follows: “Where a pleasure craft . . . has no
history of income, the owner is not entitled to damages for loss
of use.” Gladsky v. Sessa , 2007 WL 2769494, at *5 (E.D.N.Y.
Sept. 21, 2007). It bears emphasizing, however, that this recent
consensus among the federal courts is not consistent with earlier
reservations about the scope of The Conqueror expressed by Judge
Hand and Justice Cardozo.
Two decades after The Conqueror was handed down, Judge Hand,
while “conced[ing] that some of the language in [ The Conqueror ],
broken from its context, lends itself to [the] conclusion [that
demurrage damages are not available for the loss of a pleasure
craft],” found that the case “turned upon the dubiousness of the
proof of value of the yacht.” The Vanadis , 250 F. 1010, 1011
(S.D.N.Y. 1918). Observing that “[w]e are all accustomed to the
purchase and sale of pleasures and recreation,” he concluded that
“[t]he test is, as in every other case, their value in exchange;
for the purpose of the recovery is to effect the result of an
exchange.” Id. Consequently, he found “no reason to think that,
if the exchange value of the yacht’s use in The Conqueror . . . 
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8
had been established in the customary way, [Mr. Vanderbilt] would
have had further difficulty in his recovery.” Id. 
A decade later, Justice Cardozo, who also recognized that
“[t]here are statements in The Conqueror that may be in
conflict,” nevertheless observed that where “there is need of the
employment of a substitute. . . . the fair market value of the
hire may be an element of damage, and this whether the substitute
is actually procured or not.” Brooklyn E. Dist. Terminal v.
United States , 287 U.S. 170, 175 (1932) (internal citation
omitted). Speaking for a unanimous court, Justice Cardozo
declined to embrace the distinction between pleasure and
commercial craft:
The vessel may be a yacht, employed for pleasure and
not for business. Even then, in the judgment of many
courts, the value of the use may be considered by the
triers of the facts in fixing the recovery if there has
been a substantial impairment of that enjoyment for
which such vessels are maintained. 
Id. 
In short, both The Vanadis and Brooklyn Eastern District
Terminal , while undervaluing the categorical holding, take a more
nuanced view of The Conqueror and challenge the assumption that
the loss of use of a pleasure craft is categorically speculative
in nature. 
III. THE CONQUEROR SWAMPS THE RENAISSANCE 
In their briefing before me, each party has characterized
their adversary’s position regarding the respective holdings of 
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9 
The Conqueror as dicta. The characterizations appear to be
efforts to deprecate the case’s alternative holdings .
The Conqueror held A) that mere recreational loss is not
compensable and B) that any compensable loss must be sufficiently
proven. But alternative holdings are not dicta. Dicta, as Judge
Leval has observed, “is an assertion in a court’s opinion of a
proposition of law which does not explain why the court’s
judgment goes in favor of the winner.” Pierre N. Leval, Judging
Under the Constitution: Dicta about Dicta , 81 N.Y.U.L. REV. 1249,
1256 (2006). Both Proposition A and Proposition B are not dicta
because each provides a different reason why the judgment did not
go in favor of Frederick W. Vanderbilt. The failure to satisfy
either, not to mention both, was fatal to his case.
The lower federal appellate courts of the current era have
consistently treated The Conqueror ’s categorical ruling that mere
recreational loss is not compensable to be dispositive. It is a
holding of the Supreme Court binding upon the lower federal
courts until changed by the Supreme Court itself. See, e.g. , 
Agostini v. Felton , 521 U.S. 203, 207 (1997); Rodriquez de Quijas
v. Shearson/American Express, Inc. , 490 U.S. 477, 484 (1989); 
Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd. , 460 U.S. 534,
535 (1983). Yet, even accepting Judge Leval’s observation that
“[c]ourts often give less careful attention to propositions
uttered in support of unnecessary alternative holdings,” 81 
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10
N.Y.U.L. REV. at 1258 n.23, the requirement of sufficient proof
of any compensable loss requires comparable adherence because it
also expresses the Court’s reasoning in The Conqueror for denying
damages. To provide broader context for understanding the
alternative holdings and their force and merit, I will explore
them in greater detail below. 
A. Principles of Detention Damage 
The categorical rule barring compensation for recreational
loss, although binding, does not necessarily commend itself
either as a necessary reading of the state of the law preceding 
The Conqueror or as a matter of policy. 
The Potomac , 105 U.S. (15 Otto ) 630 (1891), decided 16 years
before The Conqueror , has been identified by Professor Schoenbaum
as the source of the American rule that the “owner of a vessel
damaged through the fault of another is also entitled to award
for actual profits lost during the detention necessary to make
repairs.” THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW § 12-6 & n.27
(4th ed. 2004). While the use of the term “profits” connotes
concern with commercial activity and The Potomac involved
commercial loss, the Supreme Court’s statement of the rule was
directed to the “market price” for the vessel’s use:
In order to make full compensation and indemnity for what
has been lost by the collision, restitutio in integrum ,
the owners of the injured vessel are entitled to recovery
for the loss of her use while laid up for repairs. When
there is a market price for such use, that price is the
test of the sum to be recovered.
105 U.S. at 631-32. 
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6 Limited research has not identified any English case
directly on point regarding damages for recreational loss.
Nevertheless, a “working principle” discussed by Lord Justice
Devlin, who later served as the President of the British Maritime
Association from 1962-1976, appears to capture the current state
of English law. This is the principle that:
the owner of a vessel may get substantial, and not merely
nominal, damages notwithstanding that he cannot show any
loss of profit. He has lost the use of his vessel; and
whether he could have used her for pleasure or business
or some other form of service, such as dredging, he is
entitled to compensation for loss of use. 
The Hebridean Coast , [1961] A.C. 545, 563 (C.A. 1960)
(Devlin, L.J.). A leading English treatise is more pointed,
opining that “[t]he notorious decision of the U.S. Supreme Court
in The Conqueror . . . would almost certainly not be followed
here.” MARSDEN ON COLLISIONS AT SEA 579 n.27 (SIMON GAULT, et al eds.
13th ed. 2003).
11
Similarly, in the English case which The Conqueror cited as
one of the earliest on the subject “Dr. Lushington [held] that
‘in order to entitle a party to be indemnified for what is termed
in this court a ‘consequential loss,’ being for the detention of
his vessel, two things are absolutely necessary — actual loss,
and reasonable proof of the amount.’” 166 U.S. at 125 (quoting 
The Clarence , ch. 166 E.R. 968, 970 3 W. Rob. 283, 286 (1850)).
While the examples of loss cited in The Clarence were commercial
in character, the principles of “actual loss” and “reasonable
proof of the amount” were not by terms so restricted. 6
In short, the case law before The Conqueror did not compel
the categorical bar the case erected to recovery of recreational
loss. Moreover, as a matter of policy, although recent Circuit 
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12
decisions, see supra Note 5, have declined to adopt the positions
articulated in The Vanadis and Brooklyn Eastern District
Terminal , I consider those cases to have the better of the
argument. The instant case involves a disputed issue of fact
regarding actual loss measurable by a market price. The Heards
had invested $125,000 and their own time and sweat equity in
rebuilding the vessel. These investments were made with the
intention of using the RENAISSANCE for recreation of the type
planned in the late summer and early fall of 2007. The Heards
had definite plans to use the RENAISSANCE starting the day after
the Harbor Master’s boat allided with it, and they sustained loss
when they were unable to make use of their investment as a
result. The sole question should be whether that loss can be
expressed in a market value without conjecture, surmise or
speculation.
The categorical rule of The Conqueror results in similarly
situated plaintiffs and defendants facing vastly different
outcomes depending not on monetizable damages but on the
character of the loss. As another District Court with a
substantial maritime practice observed when faced with this
circumstance:
It strikes one as fundamentally unfair that a yacht owner
can be deprived of the use of an asset of substantial
value . . . for a substantial period solely as a result
of another’s negligence and yet be wholly denied money
damages for such loss of use simply because the asset was
a pleasure craft. One wonders why the tortfeasor should 
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13
benefit from the fact that an asset owner chose to forgo
commercial operations when there is far less speculative
nature or other question concerning ascertainable damages
. . . than there is concerning general damages in the
run-of-the-mill personal injury case. 
Nordasilla Corp. v. Norfolk Shipbuilding & Drydock Corp. , 1982
A.M.C. 99 (E.D.Va. 1981).
Despite these reservations, it is nevertheless
unquestionable that “The Conqueror . . . [has been found] to be
viable, controlling, if highly criticized, precedent” and an
inferior federal court “is not in the position to rule
differently though it might if it were writing on a clean slate.” 
Zepsa Indus., Inc. v. Kimble , 2008 WL 4991115, at *4 (W.D.N.C.
Nov. 11, 2008). As a result, despite its overreading of prior
precedent and its faulty policy basis, The Conqueror dictates
that damages are not available for the Heards’ loss of
recreational use of the RENAISSANCE. 
B. Reasonable Proof of Detention Damage for
Recreational Use 
In the alternative, applying the noncategorically stated
general principles of The Potomac and The Clarence , the core
issue becomes whether there is reasonable proof of a market price
for the amount of loss, not whether that market price is for
recreational use. See also The Conqueror , 166 U.S. at 127
(explaining that “the best evidence of damage suffered by
detention is the sum for which vessels of the same size and class
can be chartered in the market”). The Conqueror , in fact, dealt 
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7 This evidence was belatedly produced through the affidavit
of Brian Blank, the principal of Bareboat Sailing Charters,
Newport, Rhode Island, submitted in connection with summary
judgment. The Heards neglected their obligation under Fed. R.
Civ. P. 26 to make timely disclosure of their expert. I would,
if it were material to further proceedings, however, be prepared
to permit the evidence to be considered in connection with
summary judgment and trial on condition that Northern Assurance
be afforded an adequate opportunity to develop rebuttal evidence.
By contrast, I note that the claim of loss of a computer, some
liquor and certain food items also belatedly asserted by the
Heards in the summary judgment proceedings before me, has not
been sufficiently demonstrated and consequently I conclude that
claim is unavailing as a matter of law.
14
with this core issue of sufficiency of evidence more carefully
and critically than with its categorical exclusion of damages for
recreational use. As The Conqueror observed, three witnesses for
Mr. Vanderbilt attested to the value of a replacement charter but
offered little by way of facts to substantiate their estimates. 
Id . at 130. The Court concluded that “estimates” by “friendly
witnesses, with no practical illustrations to support them, are .
. . too unsafe, as a rule, to be made the basis of a judicial
award.” Id . at 134.
Whatever may have been the sufficiency of the evidence
adduced in The Conqueror , evidence submitted by the Heards here
related to the amount of the loss 7 is sufficient to raise a
question of fact regarding the market value of the Heard’s
recreational loss. In an affidavit, the principal of a Newport,
Rhode Island charterer states that his business is the only one
to offer vessels comparable to the RENAISSANCE for bareboat
( i.e. , without a captain) charter in Massachusetts, Rhode Island, 
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15
or Connecticut, and that he offered such vessels — 49 foot sloops
— for charter at $5,000 per week. Indeed, this is the charterer
whom the Heards identified as having a substitute vessel, albeit
one beyond their means, available after the allision. On this
evidence, the cost for chartering the boat for 10 weeks in the
summer of 2007 could be found to be $50,000. However, the
Heards’ belated expert submission does not constitute a
dispositive demonstration of damage for loss of use of the
RENAISSANCE because Northern Assurance has not had the
opportunity to meet the Heards’ proof in this procedural setting. 
See supra Note 7.
Justice Cardozo noted that, in cases such as this, “[a] wide
range of judgment is conceded to the triers of the facts in the
choice of the standard to be applied and in the method of
applying it.” Brooklyn E. Dist. Terminal , 287 U.S. at 176.
Whether evidence proffered is sufficient to constitute
“reasonable proof” as to the amount of a loss is, itself,
determined based on the type of loss and attending circumstances.
I find the Heards here have established a prima facie showing of
the requisite loss. But if this case were to proceed, I would,
of course, permit Northern Assurance to present both an
evidentiary challenge to the Heards’ expert and its own rebuttal
expertise evidence on the issue of market value and mitigation. 
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8 One American treatise has also recognized this source in
arguing that “there is no longer a need to preserve the 
Conqueror’s dislike of conspicuous consumption by denial of
detention damages.” NICHOLAS J. HEALY & JOSEPH C. SWEENEY, THE LAW OF
MARINE COLLISION 373 (1998).
16 
IV. CONCLUSION 
Regardless of my finding that the Heards can proffer a
sufficient basis for determining the market price of a
replacement vessel, I am obligated, in light of the application
of the categorical rule derived from The Conqueror, to grant
Northern Assurance’s motion for summary judgment solely on the
basis that the Heards’ use of the vessel was to be recreational.
I would be less than candid if I did not also register my
sense that the categorical rule of The Conqueror finds its source
in the resistance of the Supreme Court to enabling one of the
richest men in late nineteenth century America to recover, on
questionable evidence, for the “inconvenien[t]” loss of one of
his many recreational diversions. 8 166 U.S. at 133. That
categorical rule has, however, a broad wake, depriving the
working couple in this case recovery for a monetizable loss of
the central recreational activity to which they have devoted
considerable personal efforts over a number of years. In this,
the categorical rule created for a Vanderbilt falls harshly on
the Heards, calling to mind Anatole France’s description of the
“majestic equality of the laws, which forbid rich and poor alike
to sleep upon the bridges . . . .” ANATOLE FRANCE, THE RED LILY 95 
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17
(Frederic Chapman ed., Winifred Stephens trans., John Lane Co.
1908).
That having been said, I must GRANT Northern Assurance’s
motion for summary judgment (Doc. No. 28) and the Heards’ motion
(Doc. No. 32) must be DENIED. Judgment shall enter for Northern
Assurance declaring its entitlement to the entire insurance
proceeds from the Town of Winthrop deposited in the Registry of
this Court. 
/s/ Douglas P. Woodlock 
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE 
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