98 F. 133 | 1st Cir. | 1899
These appeals grew out of two suits in the district court arising out of a collision between the steamer Providence and the schooner Benjamin A. Van Brunt in the channel in front of the city of Fall River, shortly before 7 o’clock on the morning of Sunday, September 11,1892. The facts in this case supplement those stated in our opinion in The Benjamin A. Van Brunt (C. C. A.) 98 Fed. 131, passed down this day. The Providence belonged to the samé line as the steamer Pilgrim, and was arriving from New York the same morning, only a few horns later, when she came into collision with the schooner, still anchored, as described in that opinion. The Providence was somewhat injured, and the Benjamin A. Van Brunt was sunk. The result was a libel in favor of the Old Colony Steamboat Company, as owner of the Providence, against the schooner, on which libel the district court found the Benjamin A. Van Brunt alone in fault, and entered a decree against her for the damages which the Providence suffered, from which the owners of the Van Brunt appealed to this court. Her owners also libeled the Old Colony Steamboat Company for the damages suffered by their schooner, which libel the. district court dismissed, for the reason already stated, and from the decree of dismissal they also appealed. The result is the two cases in which this opinion is entitled.
The Providence was proceeding to her wharf at between five and six knots. At this locality, and with the fog then existing, this was clearly an unlawful rate of speed, in violation of the statutory regulations. It is claimed, however, on the part of the Providence, that the rate of speed dicl not contribute to the collision. It is impossible for any court to find that such was the fact. If the Providence had used the same precautions as the Pilgrim, the presumption is that the collision might have been avoided, or, at least, that the consequences would have been no more serious than those of the collision between the Pilgrim and the Van Brunt. However this may be, the rule has been clearly laid down by the supreme court, as shown by us in The H. F. Dimock, 23 G. O. A. 123, 77 Fed. 226, 230, to the effect that a vessel violating the statutory rules, in connection with which violation a collision arises, must show, not merely that such disregard was probably not one of .the causes of the collision, but that it could not have been.
On the other hand, the evidence shows clearly that the Van Brunt was negligent with reference to sounding her bell on the approach of the Providence, as she was on the approach of the Pilgrim, and therefore both vessels were at fault.
The court below sent the case to a commissioner, who allowed the Providence, as the cost of repairs, §4,560, and also 18 days’ demurrage, at §670 per day. His report was confirmed, but the Van Brunt, having taken exceptions thereto, brings her exceptions before us. The
The same method of reasoning disposes, also, of the determination by the commissioner of the number of days for which demurrage should be allowed. The record shows that: the Providence would have laid off for the season on the 2d of October, or 20 days after the collision, and would then have been replaced by a spare boat, and that her repairs were not then completed. The commissioner made no allowance for any demurrage, except for the time covering the trips which she would have made before the date when she would have been laid off in her regular course of employment. Again, we have the lump estimates of expert witnesses, as against the conclusion of the commissioner, as to the amount of time required for making the necessary repairs caused by the collision, and, for the reasons already stated, we cannot accept them over the commissioner’s award.
With reference to the amount of per diem demurrage allowed, there were no circumstances which would enable the commissioner to determine the mere charter value of the Providence at that season of the year. In this respect, the ease stands like The Cayuga, 11 Wall. 270, and The Mediana, [1899] I’rob. Div. 127. The Cayuga was a ferryboat, employed in New York harbor; and, immediately after the collision in which she was injured, she was replaced by a spare boat belonging to the same owners. The court held that an allowance of demurrage was not defeated by the fact that there was no charter rate for the ferryboat, nor by the fact that there was a spare
One point further remains to be considered. The commissioner allowed 18 days’ demurrage; but he stated alternatively that only 16 days would have been the proper allowance for the time necessary to repair the damage caused by the collision if the Providence had been sound. He also reported the following: “I find that her unsound condition increased, to some extent, the necessary cost of repairing the damage done by the collision. The exact amount of increase is not made very clear by the evidence; but, upon the whole, I find the amount by which the cost of labor and material needed for repairing the collision damage was increased by her unsoundness to be $600.” This $600 was included in the $4,560 already stated. With these items of $600 and 2 days’ demurrage is linked an allowance of $40 for the services of a superintendent after the expiration of the 16 days referred to. The commissioner reported that the unsoundness would not, but for the collision, have interfered with the use of the vessel until October 2d, or even longer. It is apparent that the unsoundness thus specially reported on by the commissioner
Therefore, apparently, the question presented by this part of the commissioner’s report is whether- or not the owner of the vessel injured is entitled to he allowed for the increased cost of repairs caused by the fact that, on opening up the vessel, parts adjacent to those parts injured by the collision, and not directly involved therein, are found to be unsound, so that, on that account, the cost of repairing the part injured is increased over what it would have been if the adjacent parts had been sound. The rule of restitutio in integrum Is a profitable one, In almost any view of it, to the owner of the injured vessel, and, ordinarily, on its fullest application, it ought not to be practically extended beyond what the necessity of the case requires. There may he instances where adjacent parts which are unsound are so closely connected with the parts directly injured by the collision that they cannot be distinguished in making repairs, so that repairs of all the parts amount only to repairs of a single whole; hut: in order to establish a proposition of that kind, and thus enlarge the field of application of the rule of restitutio in integrum, the facts should be very clear and strong, which certainly is not true with reference to this particular case. If the item of $600 referred to, and all demur-rage in excess of 16 da,ys, and the $40 additional allowance to the superintendent, are all omitted, the owners of the Providence will yet have left all which the rule of restitutio in integrum can justly give them, and therefore these items must be disallowed.
Because the amount awarded for the damages suffered by the Providence must be corrected in these particulars, and because, on the proofs shown by the record, the steamer, as well as the schooner, must he held in fault, so that each must contribute equally to the damages caused by the collision to each, according to the admiralty rule restated by us in The Chattahoochee, 21 C. C. A. 162, 74 Fed. 899 (see the-same case in 173 U. S. 540, 19 Sup. Ct. 491), both the decrees appealed from must be reversed.
On each appeal the decree' of the district court is reversed, the case is remanded to that court for further proceedings in accordance with the opinion passed down this day, and the appellants recover the costs of appeal.