2 F. Cas. 565 | S.D.N.Y. | 1869
This, a case of collision, in which a decree was made to the effect that the collision was caused by the negligence of both vessels, and that the damages should be equally apportioned. A reference was ordered to ascertain the damages and the question of costs was reserved. [The Baltic, Case No. 823.] The commissioner reports as due to the libellant on account of the matters mentioned in the pleadings, $959.13. No reference to report the amount so due to the libellant was made to the commissioner. What the commissioner ought to have reported, and what, from the evidence, he manifestly intended to report, was, that the $959.13 was the damages sustained by the libellant by reason of the collision. The report must be amended so as to conform to the fact and to the order of reference. I shall treat it, however, as being a report that the damages sustained by the libellant, by reason of the collision, amount to $959.13. Both parties have excepted to the report. The $959.13 is made up of three items: (1) Repairs to the libellant’s vessel, $392.22; (2) Ten days’ demurrage, at $45 per day, $450; (3) Interest on the $392.22, from December 26th, 1863, to the date of the report, at the rate of six per cent, per annum. The libellant has filed seven exceptions to the report, claiming; (1) That the interest on the $392.22 should be at the rate of seven per cent, per annum; (2) That the libellant ought to have been allowed interest at the rate of seven per cent, per annum on the $450 demurrage; (3) That the libellant ought to have been allowed $1,000 for permanent injury sustained by his vessel by the collision; (4) That he ought to have been allowed interest on such permanent injury. The fifth, sixth, and seventh exceptions of the libellant are to the exclusion by the commissioner of testimony offered by the libellant on the reference. The claimants have put in two exceptions to the report, claiming: (1) That no interest should have been allowed on the amount of the cost of repairs; (2) That no demurrage should have been allowed to the libellant.
There is no dispute as to the propriety of the allowance of the $392.22. Interest on that amount, it being the amount actually paid for repairs put on the libellant’s vessel, as a consequence of the collision, forms a proper item in the damages; and the proper rate is six per cent, and not seven per cent. The Ocean Queen, [Case No. 10,410.]
As to the demurrage, I think the commissioner erred in allowing it. No proper case for its allowance is made out by the evidence, within the ruling in Williamson v. Barrett, 13 How. [54 U. S.] 101, 110, 111. The libel-lant wholly fails to show, by evidence, that he sustained any loss of service of his vessel, during the ten days while she was undergoing repairs, or that he sustained any damage by any such loss.
The claim for an allowance for permanent injury was properly rejected by the commissioner. The evidence on the part of the libel-lant on that subject is altogether vague and inconclusive, and the weight of it is, that the vessed was in as good condition after the repairs were made as she was before the collision.
I see no error on the part of the commissioner in excluding evidence.
All the exceptions on the part of the libel-lant are overruled. The first exception on the part of the claimants is disallowed and the second is allowed. The report of the commissioner must stand as a report made December 16th, 1868, reporting the amount, at that date, of the damages sustained by the libellant, by reason of the collision, at $509.13. This amount, with interest at the rate of six per cent, per annum, to the date of the decree to be entered, will be apportioned equally between the libellant and the claimants’ vessel.
As to costs. I give to the libellant his costs in the cause, to and including the interlocutory decree of May 2d, 186S, and the costs of entering the final decree. The costs of the reference under the interlocutory decree, and the costs of the exceptions and of the hearing thereon. I award to the claimants, as the testimony before the commissioner re
