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