249 F. 119 | 4th Cir. | 1918
These cases were argued together and may be disposed of in one opinion. The following facts appear:
Smith & Terry, Incorporated, chartered the barge Benefactor for three months from December 13, 1915, with the option of three additional months, to carry coal from Hampton Roads to Sound ports. After one load had been taken from Newport News to Providence, the charterer canceled the contract and returned the barge to her owner on the ground that she was unseaworthy. Subsequently the charterer brought two actions in admiralty, one a libel in rem against
It was. found by the trial court that the barge, if seaworthy, could have made three additional trips during the three months for which she was chartered. There was testimony to that effect, although the fact was in dispute, and we cannot say that the finding is unwarranted. It will therefore be assumed to be correct. The damages awarded for loss of profits were on the basis of $2.50 per ton of coal, that being the rate at which the barge was subchartered by libelant to another concern. This subcharter was entered into without the knowledge or consent of the owner, and consequently its terms were not binding upon him. Obviously, the charterer cannot recover from the owner, for the breach of his contract, any more than it was to get from the subcharterer, since that in any event would he the extent of its loss; and it «cannot recover as much as the subcliarterer was to pay, if when the breach occurred it could have hired another barge or procured equivalent tonnage at a lower rate. On conflicting testimony relating to this question, the' trial court found in effect that the charterer could have obtaified cargoes at an average of not less than $2.50 per ton during the three months lor which the barge was hired. Accepting this finding, which seems to be justified, we cannot see that it was unfair to the owner or otherwise incorrect to assess damages on that basis.
But the amount awarded appears plainly excessive, because it assumes that the barge would have carried 1,350 tons on each of the
It follows that the decree in the in rem case should be affirmed, with costs. The decree in the in personam case should be modified, by deducting from the award of damages, the sum of $1,125, with interest from April 24, 1917, and, as thus modified, affirmed, but without costs to either party as against the other.