37 F. 148 | U.S. Circuit Court for the District of Southern New York | 1888
The steam-ship Tantallon was lying at a bulk-head at the Empire Oil-Works, Hunter’s Point, East river, March 31, 1885, taking in a cargo of oil. Her how projected about 16 feet across a canal 157 feet wide, which ran from the river between the premises of the Empire Oil-Works and the Standard Oil-Works. The bulk-head on the other side of the canal was 70 leet further out into the East river, and at this bulk-head lay an Italian hark, also projecting partly across the canal; her stem some 30 feet, and her bowsprit 30 feet further. The hark took her position after the Tantallon was moored. About noon the steamer Margaret .1. Sanford, with a loaded car-float lashed on her port side, consigned to the Standard Oil Company, attempted to enter the canal. Tn doing so the port how of the float struck the starboard bow of the Tantallon, inflicting injuries which were repaired at the expense of $700, and which also necessitated a delay of seven days in the loading of the steamer, detaining her that time beyond the lay-days provided for in her charter. This suit was brought to recover for the damages thus sustained by the Tantallon. The district court held both the tug and the steam-ship in fault, and divided the damages, and allowed no damages for the detention of the Tantallon beyond the expense of wages and maintenance of her crew and wharfage. The owners of the Tantallon have appealed.
It is plain upon the evidence that the attempt of the tug to pass between the two vessels upon the tide as it was then, incumbered by a heavy and unwieldy float, was one which could not be made with prudence unless the tug had the extra assistance which her master called for, hut was unable to obtain. Her master was aware of the risk of attempting to pass between the two vessels by which the entrance to the canal was obstructed, but preferred to encounter it, hoping doubtless to be able to avoid collision with either, rather than subject himself to the inconvenience of abandoning temporarily the undertaking in which the tug was engaged. The case, as regards contributory fault on the part of the Tantallon, does not turn upon the question whether she was originally culpable in taking a position in which she unnecessarily projected a few feet across the entrance of the canal. Probably, until the Italian bark took a position on the other side of the entrance, projecting still further across the entrance, there was sufficient room left for access to the canal for tugs with floats, and for all the purposes of the ordinary navigation of the place; but after that the entrance was obstructed to such an extent as would necessarily embarrass the movements of tugs with tows, and measurably interfere with their access to the canal in the usual course of traffic. When this became apparent, the Tantallon was not justified in remaining in her previous position, even though until then it was a proper one. There was plenty of room, and nothing in the way, to per
By the decree of the district court the libelant was allowed, besides one-half of the cost of the repairs of the steamer made necessary by the collision, one-half of $375.55 for consequential loss. That sum represents the amount of the port expenses of the Tantallon during the seven days she was detained by repairs. Nothing was allowed by way of demurrage. The Tantallon was an English “tramp” steamer that occasionally visited the port of New York. She was under charter for a voyage to Bombay when she was injured, and was at the time being loaded for the voyage. She would have earned freight under this charter, above expenses, of about $70 per day for the time ordinarily occupied in loading, sailing, and discharging. The charter stipulated for demurrage at the rate of £45 per day. She had no engagement beyond the immediate voyage, and there is nothing to show that after she arrived she actually found employment at Bombay within seven days. After she reached Bombay she engaged in the coasting business for a time, and then returned to England. It appears by the testimony of a witness for the libelant that “the customary and usual amount to allow for detention for steamers for the class and size of the Tantallon” at the port of New York was 20 cents a ton; being, for the Tantallon’s tonnage, $262 a day. The libelant also gave testimony to show what the Tantallon could have earned upon a return voyage from Bombay to New York, and it appears that if she could have got a cargo immediately, both at New York and Bombay, she could have earned for the time ordinarily occupied by the round trip about $140 per day net freight.
It was held in this court by Mr. Justice Nelson (The Hermann, 4 Blatchf. 441) that the charge for lay-days in the charter-party under which the vessel is employed at the time of a collision furnishes no test to determine the damages for her detention during the time of her repairs. Upon this authority the stipulated rate of demurrage in the Tantallonls charter must be rejected as evidence of her actual loss by detention. It is not necessary to decide in the present case what - effect should be given to the demurrage rates which prevail at a particular port, either by the regulations of a-maritime exchange, or b}' the general recognition and acquiescence of the mercantile community, as evidence of the amount of loss by detention. In a case where that port is the place, or one of the places, at which the vessel is commonly employed,
Some of the authorities, and some of the decisions of this court, have commented upon the difficulty of ascertaining the consequential loss resulting from the deprivation and use of a vessel in collision cases. Thus it was said in The Rhode Island, 2 Blatchf. 114, that “the precise amount, or even a reasonable approximation to it, cannot be ascertained by the application of any known or fixed rule.” Nevertheless it is not apparent why the same rule, and why evidence of the same character, should not bo adopted in the solution of the inquiry as are resorted to when the owner of other kinds of property seeks compensation for the damages caused by the wrongful interruption of its use. If the owner of a horse, or a mill, or machinery, or a house, is temporarily deprived of his use of the property by the wrongful act of another, the law implies consequential loss as a necessary and proximate result, and allows a recovery for the value of its use as a proper item of damages, and permits the value to be shown by the opinion of witnesses conversant with the subject. Parker v. City of Lowell, 11 Gray, 353; Allen v. Fox, 51 N. Y. 562; Satchwell v. Williams, 40 Conn. 371. In the large commercial ports the value of the hire of a vessel can as well be ascertained as that of most other kinds of property used for business purposes. As the question is one for the