278 F. 868 | 5th Cir. | 1922
The steam tug Tomboyache was proceeding down stream with three oil-laden barges, which she was pushing ahead end on end, and attempted to pass between the steamship and the left bank of the river, when one of the barges collided with and twisted and bent the ship’s rudder and rudder plate. The Tomboyache was under contract with the Freeport & Tampico Fuel Oil Corporation to tow oil barges, and it was the intention to deliver one of the barges then in tow to the Stod-dard. The oil contained in it completed her cargo. The two other barges contained oil for other vessels nearby..
The lights of the Stoddard were burning, and were seen by the master of the tug from the time he turned a bend in the river about three-eighths of a mile above where the Stoddard lay. There was ample space in the channel for vessels to pass. The tug carried a powerful searchlight which was being played on the Stoddard and the space between her and the left bank of the river after the tug passed the bend in the river.
Two original libels in personam were filed against appellant, the owner of the tug, one by the Boston-Virginia Transportation Company, the owner of the steamship I*. V. Stoddard, and the other by her charterer, the Freeport & Tampico Fuel Oil Corporation; the owner seeking to recover for the damage to the steamship, and the charterer seeking to recover for the loss to it of her use. The owner of the tug brought the charterer in to defend the suit brought by the owner of the steamship. The defenses set up by the owner of the tug were that the steamship was at fault, in that it obstructed the fairway, and that the charterer of the Stoddard, over the protest of the owner of the tug, insisted upon delivering one of the barges to the Stoddard immediately, refused to wait until daylight, and agreed that the charterer would be responsible for any and all damage which might be done to the steamship, the oil barges or the tug'. By agreement, the cases were consolidated.
The Stoddard was examined at Tampico, and it was considered safe for her to proceed to New Orleans, which she proceeded to do, and remained there for ten days. A survey was had, repairs made, and she was placed upon the dry dock.
The master of the tug testified that the alleged agreement of indemnity was made in the pilot house in the presence of his son and the engineer of the tug. The representative of the charterer, while admitting the presence of the others in the pilot house, flatly contradicted this evidence for appellant. Neither of the other parties present at the time were called as witnesses. Several witnesses for appellees testified that after the collision an attempt was made to force the barges
The court below rendered a decree in favor of the owner of the Stoddard for repairs and certain items of expense incurred, but refused to allow anything for the cost of dry-docking the steamship, amounting to $619.80; for the cost of towing to the dry dock at New Orleans, amounting to $55; for the cost of survey, amounting to $250.-72; or for the cost of the survey report, amounting to $50. A decree was also rendered in favor of the charterer, awarding to it $360 per day for seven days as damages for the loss of the use of the Stoddard.
The vessels held at fault in the cases cited, by appellant were anchored in the fairway in such manner as to obstruct the passage of other vessels. In this case the anchored vessel was only slightly, if at all, in the channel, and was not interfering with the passage of other vessels in the remotest degree. Of course, any agreement between the charterer and the owner of the tug could not affect the case of the owner of the Stoddard.
We are of opinion that appellant failed to show by a preponderance of evidence that the assistant manager of the charterer of the Stod-dard agreed that his company would be responsible for any damage. It would have been a most unusual agreement. The testimony of the alleged parties to it was in direct conflict, and the appellant failed to corroborate the testimony of the master of the tug by that of his son and the engineer.
“ ‘Restitutio in integrum’ is the leading maxim in such cases, and where repairs are practicable the general rule followed by the admiralty courts in such cases is that the damages assessed against the respondent shall be sufli-eient to restore the injured vessel to the condition in which she was at the time the collision occurred; and in respect to the materials for the repairs the rule is that there shall not, as in insurance cases, be any deduction for the new materials furnished in the place of the old, because the claim of the injured party arises by reason of the wrongful act of the party by whom the damage was occasioned, and the measure of the indemnification is not limited by any contract, but is coextensive, with the amount of the damage.”
The charterer by cross-assignments contends that the allowance to it for the loss of the use of the vessel for only seven days was inadequate, and should have been made to cover a period of ten days. While the testimony shows that the Stoddard remained in New Orleans ten days, it does not appear that she was undergoing repairs on account of the injuries received in the collision for more than seven days.
The decree is affirmed on the original appeal and on the cross-appeal of the Freeport & Tampico Fuel Oil Company, and reversed on the cross-appeal of the Boston-Virginia Transportation Company, and remanded for further proceedings not inconsistent with this opinion.
Affirmed in part.
Reversed in part.