268 F. 908 | S.D.N.Y. | 1920
(after stating the facts as above). The collision occurred and the libelant’s right of action accrued in New York Harbor within the jurisdiction of this court. Consequently damages for loss were payable here, though both parties were British subjects. The mode which the parties have in effect adopted of calculating the damages as equivalent to the actual cost of repairs aud incidental expenses, plus the amount which the ship would have earned when off time, is a mere method of arriving at the amount of damage suffered by the collision at New York, and then and there payable when ascertained. This is not, therefore, a case of pounds sterling due in England, suit to recover which is brought in New York. The damages were payable in dollars here, and while the parties have agreed upon the measure of damages in pounds sterling, a portion of which were expended in England, that is a mere method of computing the damages suffered in New York and finally ascertainable on January 1, 1916.
The libelant under this method of adjustment was entitled to the payment in New York on January 1, 1916, of the number of dollars represented by £8,269. We are not seeking the equivalent of ¿8,269 in dollars, in order to replace that number of pounds in England, but are ascertaining what was the damage on January 1, 1916, in dollars represented by ¿8,269. That can only be calculated at $4.74 for each pound sterling, the then rate of exchange. Nothing less can indemnify the libelant for the damages suffered in New York, payment of which was due here when ascertained.
It is contended that the damages cannot be determined until final decree, because the action sounds in tort, and that the rate of exchange then prevailing should therefore be adopted. This somewhat archaic argument, if pushed to an extreme, would bar interest prior to the date of the decree. The parties, however, have selected January 1, 1916, as the date to fix the amount of tlieir damages in pounds sterling. The case is not one of transmitting these pounds sterling to New York, but of finding their equivalent in dollars on January 1, 1916. This can only be done by employing the rate of exchange prevalent at that date. The matter is quite different from one of a continuing obligation to pay pounds sterling in England, the failure to perform which would be compensated for by interest. Here the obligation was to
The view I have taken is supported-by The Weatherby (D. C.) 48 Fed. 734; The Cabot, 4 Fed. Cas. 961, No. 2,277; Forbes v. Murray, 9 Fed. Cas. 415, No. 4,928, and the unreported decision of Judge Learned Hand, in this court, on January 19, 1920, in the case of Constantinidi v. Benas. I think the rule enunciated in the interesting discussion by Mr. Justice Story in the case of Grant v. Healey, 10 Fed. Cas. 978, No. 5,696, where payment was due in loco fori litis, involves the conclusion I have reached, although there he allowed the par of exchange.
The report of the commissioner is correct, and is confirmed.