The Frammas Warsaktiebolag v. The Jas. A. Dumont

34 F. 428 | S.D.N.Y. | 1888

BrowN, J.

The charge for wharfage, as an expense made necessary by the collision, should have been allowed. When the charter rate of de-murrage is adopted, and that rate is shown to include the charge for wharfage, it is, of course, disallowed as an additional item. The C. P. Raymond, 28 Fed. Rep. 765. As the charter rate of demurrage was not in this case adopted by the commissioner, the wharfage should have been allowed; and it was undoubtedly omitted only by accident. The stipulations of a charter as to the rate of demurrage is not, I think, competent legal evidence in favor of the owner, in an action brought by him against third persons for damages by collision. Such stipulations are res inter alios actx, and are not necessarily based on the supposed value of the vessel alone. Upon this point the commissioner justly observes that “though the rate of 4d. per ton is customary in these charter-parties, it is probably in many eases a liberal estimate somewhat in the nature of a penalty, which the charterer can avoid by the exercise of diligence.” The damages in collision cases are to be fixed upon the basis of resiituo in iategrum. The amount to be allowed for the detention of the vessel is the value of her use. Williamson v. Barrett, 13 How. 101; The Potomac, 105 U. S. 631. hut the stipulations of a charter to third persons, as respects demurrage, when offered by the owner in his own favor, stand in no better position, it seems to me, than the owner’s declarations, which, though competent against him, are not legal evidence in his own behalf. The Hermann, 4 Blatchf. 441. For the same reason the customary rate fixed by the regulations of the Produce Exchange of this City are not of themselves competent evidt nee.

On examination of the testimony I am satisfied that the commissioner properly took into consideration the claimant’s evidence as respects the value of the use of the vessel. This evidence was competent. The Potomac, supra; The Heroine, 1 Ben. 227. Taking into account all the expenses of the ship and crow, the necessary repairs, and the ordinary depreciation upon her voyages, I think the sum of $40 per day for this bark of 740 tons register a fair and just allowance. Although the rate charged by the stevedore was somewhat higher than in ordinary cases, in view of the special circumstances which affected the reasonableness of the charge the commissioner’s conclusion should not be disturbed. Some additional charges for an unnecessary third captain as surveyor, an unreasonable allowance to the diver, and a brokerage charge in addition to the usual percentage of 5 per cent., should have been disallowed. The case of The Williams, 15 Fed. Rep. 558, is not applicable to an expense actually and necessarily incurred by the vessel. These, together, offset the sum of $40.10 that should have been allowed for wharfage.

The other exceptions I. cannot sustain. The amount reported should therefore stand without change. By the practice of this court interest is allowed, and the report should therefore be confirmed. I cannot find that the litigation has boon so unreasonable as to change the ordinary rule as to costs.