The Winfield S. Cahill

258 F. 318 | 2d Cir. | 1919

HOUGH, Circuit Judge

(after stating the facts as above). [1] On the facts above recited we agree with the court below that the fault of the Hedges is entirely plain. When the vessels were in such position that they were bound to navigate with due regard to each other’s rights, they were admittedly on crossing courses, with the Seguranca the privileged vessel. It may be assumed as plain that the Hedges did not intend to continue such crossing course, but to turn into the East River in such manner that she would be either parallel with the Seguranca or ahead of her according to the rapidity of such turn. It is argued that she did make the turn, became the leading vessel, and put the Seguranca in the position of one overtaking. It is a sufficient answer to this to say that the steamship was proceeding so slowly that she could not overtake the Hedges, if that vessel had been able.to navigate across or against the tide in the common and accepted sense of that term.

We find that this disaster occurred solely because, when the Hedges ported to go into the East River and presented the broadside of herself and her tow to the tide, she was helpless, because she had not enough power for the business in hand. Before collision actually happened she had turned herself so as to be heading almost, if not quite, toward-the Battery, but whether in this position she was able to hold the tow against the tide is a point not worth discussion, for by that time (and events occurred with great rapidity) she had presented the end of her tow to the Seguranca in a position that rendered collision inevitable.

[2] As for the tugs in charge of the Seguranca, we think they did all they could, and did it as soon as they should. They were not apprised of and had no reason to anticipate the feebleness of the Hedges. As soon as they saw how the tow was swung down upon them, the Cahill ceased to haul ahead and the tugs alongside reversed, but it was too late; and the Hedges had made it too late by not trying to port and go into the East River as soon as she could — she never turned at all until unnecessarily near to Governor’s Island.

The difficulties of navigating in the narrow waters between Governor’s Island and the Battery are well known; the necessity of having sufficient power to meet contingencies reasonably to be expected was adverted to in The Concho (D. C.) 58 Fed. 812, affirmed 63 Fed. 1023, 12 C. C. A. 4. The dangers there alluded to have assuredly grown no less in the quarter century that has elapsed since that case' was decided.

[•3] The Commissioner awarded to the Seguranca damages for three days’ loss of use while undergoing repairs caused by this collision. When injured the Seguranca was under charter; she never entered upon the performance of that engagement because (as we find from the record) it was obvious that the governmental authorities of the United States and of the nations associated with it in the war with Germany and with Austria would not permit the steamship to get a cargo; her owner was “blacklisted” for reasons of state. It is argued that, while all this is true, it was not obvious that it was to be true during the three days for which damages for loss of use has been awarded. It is said that, if the Seguranca had not been injured, she would have entered upon the performance of this charter party. In point of fact she made no attempt so to do, but after being repaired for damage stayed at the repair shop and was extensively overhauled for reclassification; meanwhile she was sold, so as to get rid of the “blacklisted” owner, and the charter party was ultimately canceled.

[4] We hold it established as matter of fact that there was not even a reasonable probability of the Seguranca earning any charter money under the charter in question, either when she was in collision or during the three day period of her repairs. On this finding the law is not doubtful. Damages for loss of use cannot be awarded because the injured vessel might have made some profit. The question is not of the possibility of employment, but of actual loss; not what possibly could have been made, but what would have been made. The North Star, 151 Fed. 168, 80 C. C. A. 536.

The fact, that a tort had been committed only calls in play the rule of restitutio in integrum; so that, where injured cargo nevertheless brought the full market value, the tort-feasor was not called upon to pay damages in respect thereof. The Dunbritton, 73 Fed. 352, 19 C. C. A. 449. The view we entertain of the facts herein renders unnecessary any discussion of the unusual manner in which the damages were in the court below allotted or apportioned.

Let the decree appealed from be modified, and the Seguranca and Woodburn recover their full damages, with costs of the District Court, against the Hedges. Let the proceedings in limitation on the part of the Wade and the Cahill be sustained, and both tugs exonerated from liability. As against the answering claimants, let the petitioners recover trial costs (but not expenses of limitation) in the District Court. Let the libels as against the owner of the Timmins be dismissed, with costs of the District Court. There will be no costs in this court, because the parties whom we have released altogether took no appeal, and the single appellant has prevailed only partially; i. e., in respect of the so-called demurrage claim. The Anna W., 201 Fed. 62, 119 C. C. A. 396.