The Bulgaria, 83 F. 312

The Bulgaria

83 F. 312 | N.D.N.Y. | 1897

OOXE, District Judge.

I have read all the testimony and have reached the conclusion that all of the principal findings of fact in the report of the learned commissioner are correct.

Collision Damages. The amount found due the libelant for the *314damages occasioned by tbe collision appears to be a conservative award. It represents the sum actually paid for repairs made necessary by tbe collision. That these repairs were necessary and tbe amounts paid reasonable sufficiently appears. Indeed, a much larger bill might have been incurred for tbe reason that in tbe burry to put tbe vessel again at work several items of injury were hastily and not permanently repaired. Surely tbe testimony was sufficient to prove a prima facie case. Tbe America, 4 Fed. 337.

Towage. Tbe allowance of $42 for towage was proper. It appears that it was absolutely necessary to tow tbe Stevens as stated in tbe proof in order to repair tbe injuries resulting from tbe collision. Tbe bill for these services was rightly allowed. Tbe Fannie Tuthill, 17 Fed. 87.

Hawser. Tbe proof submitted is insufficient to sustain tbe allowanee of $24 for a new hawser. This is hardly disputed, but tbe libel-ant contends that tbe proof at tbe trial shows that a six-inch hawser was parted by tbe collision, and tbe brief states that tbe amount allowed represents tbe difference between tbe value of tbe old line and tbe new. Tbe evidence taken at tbe trial has not been submitted, and after careful search I am unable to find any testimony supporting tbe statement of tbe brief. As tbe matter is now presented tbe finding rests solely upon testimony of a witness who bad no personal knowledge of tbe collision. In any view, assuming that evidence at tbe trial shows all that is asserted by tbe libelant, it would still seem that there is insufficient proof upon which to charge tbe respondent with “forty-five fathoms of six-inch manilla hawser.”

Survey. Tbe item for tbe survey was properly allowed upon tbe authority of The City of Chester, 34 Fed. 429; New Haven Steamboat Co. v. Mayor, etc., 36 Fed. 716.

Wages of Crew. Tbe latter case is also authority for allowing tbe sum of $106 paid tbe crew of tbe Stevens while she was repairing. The fact of tbe payment of this sum and tbe necessity therefor is sufficiently established by tbe libelant and is wholly uncontradicted by tbe respondent.

Demurrage. Tbe Stevens was delayed at Buffalo 8| days during tbe season of navigation. This is undisputed. She is entitled to recover as demurrage what she would have earned during this period, less tbe expense of earning it, namely, her net profits. This proposition is also conceded. In arriving at this amount tbe commissioner ascertained tbe earnings of tbe Stevens by taking an average of her net profits during tbe trip of tbe collision and tbe trips immediately preceding and succeeding. He fixed tbe amount at $966.54 or $110 per day in round numbers. Tbe court might almost take judicial knowledge of tbe fact, based upon a large number of cases in which tbe per diem value of similar vessels has been in issue, that this award is not exorbitant. If it were tbe respondent would have no difficulty in proving tbe fact. Tbe earnings of tbe Bulgaria, during tbe same period, would furnish some criterion at least by which to estimate those of tbe Stevens and detect any attempt at fraud. Tbe respondent has remained silent.1 jThere is not a word disputing tbe libelant’s testimony.

*315The net earnings of the Stevens during the three trips in question were established by the testimony of the secretary and treasurer of the Union Transit Company, the libelant. He testified that he had charge of the disbursements and the receipts of freight during the time in question and that the books relating thereto were kept under ids supervision and direction. It is now objected that his evidence is incompetent because the hooks were not produced. This objection was not taken before the commissioner; if it had been he could and probably would have ordered the production of the books. The only objections taken were that the evidence would not furnish a proper measure of damage and that it was hearsay and immaterial. Subsequently a motion to strike out was made upon the ground that the testimony was irrelevant and immaterial. The absence of the books was not referred to until the witness was recalled and then only when a motion was made to strike out certain testimony. There being no market price and no charter party it would seem that the method adopted by tire libelant of proving the value of the vessel was the only one that could be resorted to. The Potomac, 105 U. S. 631. That the Stevens was in demand, that she would have received a cargo immediately but for the collision, is conclusively proved. I am inclined to think that a witness having the experience and knowledge shown by Mr. Meyers is competent to state what amount his vessel earned upon a given trip without producing all the papers and entries relating to tier receipts and disbursements. But it is not necessary to decide this question for the reason that he was not requested to produce the hooks and papers at any time, nor was the question suggested until after the testimony had all been taken.

Interest. The commissioner was right in allowing interest. The America, 11 Blatchf. 485, Fed. Cas. No. 285; New Haven Steamboat Co. v. Mayor, etc., supra.

It follows that, after deducting item of $24 for the new line and interest thereon, the report should be confirmed and the exceptions overruled.