36 F. 504 | S.D.N.Y. | 1888
Upon the commissioner’s report assessing the damages by collision, the chief exception is to the allowance of $1,540.97 for the loss of a charter, in addition to $4,815.65, allowed for ¿5 days’ detention, while the vessel was undergoing repairs. The collision occurred while the libelant’s steamer, the Hartlepool, was on a voyage from England to Perth Amboy, N. J. She was then under charter, agreeing; after de
The rule of damages in collision cases is restitutio ad integrum. The owner is entitled to indemnity for the loss of the use of his vessel while repairing. The value of this use is to be determined according to the business in which she is engaged. If she is under charter at fixed rates, that is her business for the time being, and the charter rates, less the ship’s expenses in earning them, i. e., her net freights, furnish the rule of indemnity. Per Nelson, J., Williamson v. Barrett, 13 How. 110-112; The Potomac, 105 U. S. 631; The Mayflower, 1 Brown, Adm. 380-387. This mode of ascertaining the damages in such cases has long been applied in this court. If the detention is less than the whole charter period, the owner recovers, not the whole net freights, but for the proportionate period only. The Gorgas, 10 Ben. 666. If the existing charter is lost in consequence of the collision, and a charter at lower rates is necessarily taken for the residue of the charter period, the owner is entitled to compensation for this loss up to the expiration of the term Of the original charter. He is entitled to this allowance, because he would not otherwise be indemnified for his actual loss, and because there is no legal rule
When the officers and men are under pay on contract, and cannot be otherwise profitably employed, the amount necessarily paid them during the ship’s detention is also to be added, as one of the incidents of the damage. The libelant in this ease gave no evidence to prove his damage by the method of showing the net freight that would have been earned. No evidence was offered of the expense of running the vessel, and only one witness was called to testify as to the value of her use. He states that $150 per day would be a fair and reasonable sum. Whether this is based upon the charter rates then existing, or upon the original charter rates, is not stated; but he says it has nothing to do with “profits.” This sum is probably intended to include the expense of the ship and crew as she was then equipped. The rate of demurrage reserved in the original charter was 6d. per ton per day; in the second charter, 8d. per ton, i. e., $137.50 and $181 per day, respectively. As the evidence of the charter rates, however, was objected to, and is not in this court held competent as against third persons, (The J. A. Dumont, 34 Fed. Rep. 428,) there is strictly no other competent proof before me on this point than the testimony of Mr. Spence, above referred to. The two items allowed by the commissioner amount to $6,356; which (deducting an allowance for the additional three days) is at the rate of about $170 per day for the 35 days. That the amount allowed, $6,356, is too much, is apparent from the fact that the gross freight under the original charter for 2,110 tons at 15 shillings per ton, for 38 days’ service, would amount to only $7,738, i. e., only $1,382 more than the amount of damages allowed. But $1,382 is obviously too little to cover the additional three days, (which must be deducted,) and'the increased expense of the ship for coal and other charges while on the voyage, over and above the necessary expenses while lying at the dock. If the second charter rate had been 9 shillings instead of 12 shillings per ton, the same mode of computing the libelant’s damages would have made them exceed the entire gross freights for 38 days, allowing nothing for the running expenses while on the voyage. Upon the evidence, as it stands, the demurrage must be
1. Adjustment of Compasses. The testimony shows the liability to a change in the adjustment of the compass from putting now iron plates upon the ship. In this case 22 new plates were put upon the bows, not far from the compass. Reasonable precaution made the readjustment necessary, and this item of expense should therefore be allowed. The “overhauling” of the compass, so called, was not made necessary by the collision, and is therefore disallowed.
2. Ship’s Rating at Lloyd's. It was conceded on the argument that a proper rating of the ship, and a certificate thereof, are necessary, in ordinary commercial dealings, to enable the ship to obtain employment at the market rates. The collision destroyed the rating she previously had,, and therefore rendered a new rating necessary after she was repaired. The expense of this new rating was the direct result of the collision, and should therefore be allowed.
3. Master’s Protest. The expense of a protest made in the home port as a mere means of collecting the insurance has been held in this court not recoverable, because insurance is a matter of contract wholly between the insurer and the insured, and is no part of the owner’s interest in the ship. The City of Norwich, 118 U. S. 468, 6 Sup. Ct. Rep. 1150. But the master’s protest, made in a foreign port, truthfully stating the details of any disaster to this vessel, is important in many ways to all interested. It is required by ancient, and, I think, almost universal, usage. Dana, Seaman’s Manuel, 186; Abb. Shipp. *380; 1 Kay, Shipin. 253; Laws of Oleron, 14: Wisbuy, 55. The expense is small, and when made in foreign ports, as in this case, it should be allowed. The other exceptions are overruled.