20 F. Cas. 645 | U.S. Circuit Court for the District of Southern New York | 1849
The principal question in this case is, whether a libellant is entitled to damages, in a case of collision, for the delay and loss of trips while his vessel is undergoing the necessary repairs. I do not understand the direction given to the commissioner by the court below, as intended to be laid down as a general rule to govern all cases of the kind, but as an approximation
If, in this case, the owners of the injured vessel had hired another one of the kind, for a reasonable compensation, to supply her place while she was undergoing repairs, there might be something tangible in the amount thus actually paid for the purpose of continuing the business. I do not say that the allowance would then be free from difficulty, or that it could be brought within any fixed rule of law. All I mean to say is, that there would then be less embarrassment in the allowance than there is in the case before me, where the party did not see fit to assume the risk and responsibility of a substitute. The character and profits of the business were, doubtless, the grounds upon which the owners of the injured vessel were to determine whether it was expedient for them to go to the expense and trouble of procuring another vessel. If they had chosen to do so, the risk of profit or loss therefrom would, perhaps, have been one which they would have had a right to assume. And, in such a case, as the expense of procuring the new vessel would have been occasioned by the collision, there would have seemed to be some propriety in allowing it as an item of damages. But these considerations do not enter into the case when no substitute has been procured.
I do not intend, however, to determine how far the court would feel itself justified, where another vessel had been actually employed, in allowing the sum paid for her hire. There are difficulties attending the question, which should lead to caution and hesitation in the adoption of that sum as the measure of compensation. The inquiry might arise, for instance, in a case where another vessel was not procured, whether it was practicable to procure one; for, if it was not, after a fair endeavor, an allowance upon the basis of the sum necessary to procure one, would seem to be as reasonable' as the allowance of the sum actually paid where one had been in fact obtained.
Upon the whole, I am not inclined to interfere with the allowance as made; not because I think it founded upon any established principle, but because it is just enough in itself, and I have not been able to find any principle that would justify the adoption of a higher measure of damages in the case Decree affirmed.