*2 . BINGHAM, (re- Before ANDERSON Judges. WHjSON, tired), and Circuit ANDERSON, Judge. Circuit admiralty In the court three suits entered final decree consolidated and a requiring 26,1931, the United States to the Palmer & Parker interest', to'pay to the $241,606.01, $43,- Bowery River National Bank & East n 202.95,with interest. 23,1921, States filed March United (No. Civil) its libel in rem subfreights, and/or freights, hire sulri charter Shasta, a merchant charter hire of the Mt. States act- steamship belonging Untied through shipping board. vessel Steam- had been chartered Mt.. Company May 19,1920, thirteen ship $506,940, gross payable hire of months monthly advance. The installments alia, provided, inter that: upon all shall have a lien Owner “The subfreights, for amounts cargoes, * * ” * charter party. under this . without,the not, writ- “The charterer will obtained, make ten of the owner consent pledge or other mortgage, transfer sale, Fox, agent, that public claims to have the real Steamship Company owned the A further The intervener vener) $75,000, vener, tional Bank mahogany logs September 16, 1920, rowed from the referred to as Palmer Inc., imposed or a claims which party, conferred on power terer this time to time charterer shall take such other claim demand priority over the said vessel, as carried equity, steps, as « satisfaction or to charge n of this or eliarter and vessel; same charge American ly charter condition * * Boston. Two-days will all “A * be “The charterer title agents charge against, be has or for the becomes owner in obligations records or other nor [*] any and * give continued July which has or save and certified or make but said Í) party, charterer, ownership & Parker navigating designated and interest of the right security, admiralty, no that the transferee and such vessel, subject authority event within fifteen like transaction that the charterer has no notice to tbe party. tbe charterer will in due or (hereinafter vesesel for right, might relied tbe transportation other nation where said vessel shipping board on appellee), required from west coast of Africa 666, 71 L. due said vessel.” but the freights accruing copy Bowery discharge of adequate provision for which, if it and/or any Mt. assume charterer will ship’s papers; the charter party to the consent shall be might title to upon representations of * to and at law Company (hereinafter or assigned later, sa.idvessel Shasta Victor lien, incumbrance suffer not suffer nor * inquiry deemed examination .of referred world berthed, title charterer charterer under this to uses lawful for or East& title and by payable, executed a charter versed, jointly unpaid, might, * right specifically or loan of Mt. Fox, agent, the Mt. ” interest the owner took or charter will Company, by any owner circumstances, shall, that the char- days every provisions priority permit to ascertain vessel. Be- superior Shasta, appropriate thereunder. Fox & and several- United River have such ownership place may pay, as upon after $40,000'. and interest. together liens in said Shasta statute course, permit party; lawful inter- inter- right, to be bor- over Na- Go., but sub- said dis- *3 this registry was on file in tbe the was to, or or libel, the appellant held the above, whomsoever titled itself $30,555.55,which, balance of Mount Shasta nish the that it had claims for advances made to fur $2-89,680’. freight damage on account of delay The appellee paid except $52,500, half pellee The court below None of intervener. and actually mahogany logs, and thirty-five days later, charge Steamship Company intervener’s Mt. Shasta or were so used. Africa on New York uary American fore ping Shipping. There is September 19th; department Eight days Thereupon, it Meantime, Fox & Mt. appellant’s within the Mount ordered the libel government earned registered these 1, bound thereto.” issued set when the for-the United States 1920, Shasta interyener vessel arrived on the caused arrived to vessel, States; and forth. her (No. freight Ed. and August 8, 1920, City, loans pay The libel Shasta, demurrage loans were freight July 1, 19210, The balance of resisted this and cargo (D. C.) Foreign 1973 Civil) voyage; libel by tbe cargo admiralty jurisdiction.’ commerce, Court this decision was re-' under the demise charter .with sustained in the American Bureau vessel entitled she should have arrived freight money Lloyd’s Register February was for the was Co. and the no contention unseaworthiness of the stipulated sought dismissed, sailed for Boston might interest, large vessel’s on final decree the court made, bureau was Shipping 7,1921. made the custom filing completed a libel filed, repossessed by discharged. charter party was Freights, October F. 92. On claim, contending to -this appellant was loaded with voyage kept by these claim was hold to be bn-’ demurrage the Mt. Shasta 19, to in the freight money the estimated’ 466, 47 of.appellant’s, to furnish the Record there was due owned west certificate $150',O,OO'.£or receivership.' as not fall require paid 1921. Dis- issued Jan- Mt. navigation,, into court. money,‘as objections on March 24th, was ever house coast of etc., voyage. the net appeal Shasta “or S. Ct. to When’ cargo- Ship- held dire but tbe tbe on of the tween the far prosecution preventing Shasta, Mt. dispateh. material, diligence and voyage follows: January court, on hearing, full After “Whereas it is admitted Palmer & unseaworthy when held the Co. that Parker the balance was, because begun; voyage moneys earned Mount the SS. & Co. failure Fox unseaworthiness $37,877.35, and funds to fumish -andthe Mt. Shasta “Whereas earned the vessel claims to have delayed her, etc., requisite she coal eight days demurrage at (8%o) and six-tenths arrived, 'beyond when she should the time a,t loading port day, $1,509 per February until October amounting $12,909, claim Palmer *4 a marine furnished ' board had shipping The & Parker Co. and contest, completion funds, for the engineer, as well “Whereas to the vessel there was advanced an inter- resulted voyage. of There the £4,374% sum of while at her the she was as- ease to an decree, referring locutory ports Africa, which loading in of benefit 28, April appointed on sessor, advance Palmer & claims Parker Co. on reports, two filed The assessor an ad- United States concedes to confirmed, and 1939, 14, November freight, vance rate payment of on account On exceptions overruled. appellant’s of the converting applied of to same exchange No. 1969 and libels, No. 18, 1928, these May currency of into lawful the United States consolidated. being, dispute. however, ixx filed had 25,1927, the intervener April On therefore, parties stipulate the said “Now, appellant against intervening petition its agree and as follows: 1973, alleg- against appellee in No. and upon tbe fx*eightmoneys loans, good faith “That the made in net balance of ing Mt. assignment demumage due to the security and earned and party Company’s payments with account Steamship Shasta, Mount less on of knowledge made, $30;555-.55. or of appellee, notice advances and without is the sum of freight against the' by appellant claim hereby holds “That Palmer (cid:127)& Parker Co. alleges It also thereof. money part or of itself to bound United States to appellant party from that or to the court hold' America whomsoever “was Company Steamship to the Mt. Shasta freight to Mount Shasta entitled not, anywhere public and record was not of moxxeys $30',555.55, interest the sum of with knowledge your intervenor brought of period such as the court at and for have notice nor nor did intervenor your could may determine.” still $62,500' of was thereof”; that balance below, hearing argument, the court After payment thereof loans, its and seeks due on appellant’s May 25,- on overruled the from money due freight from balance of petition exceptions of to the intervener’s damages from or recovered as 3, 1930; holding October intervener’s appellant appellee.' appellant. superior to that of the claim was appear- appellant, 3,1939, On October ( had 19,1927, the Febxnxary On intervener jurisdiction of excepted ing specially, admiralty, personam, No. a libel intervening entertain the the court substantially containing against ground that the on petition No. allegations as made above set the same forth oc- of action had alleged cause intervener’s intervening petition. in its the inter- years before curred than two mox*e and petition filed; admiralty also vening was 18, 1939, this No. On March maritime lien ;ground appellant’s ap- that with The was consolidated No. 1973. the claim superior freight the al- pellee admitting in No. answered that, intervener; if liability except asserted denied legations, that it diligence before $30,555.55', exercised intervener had net balance in excess security as- demurrage. making freight loans stipulated as due for freight, it would have learned signment 13 ad- not a No. appellant The neither had that miralty. separate finding facts No authority a lien to create power below; September nor but superior to freight the Mt. Shasta adopting was entered order appellant. the court. as those of findings assessor concerning findings made are No the intervener filed .conflict- October freight the balance May- over stipulation claims assent to the its written except far facts demurrage money, stipulation be- 14, 1928,- No. 1969. $200,000, the found parts and in to be two court divided into found in the $185,000 good had condi- stipulation. arrived during tion, $15,000 because of detriment engaged corporation is a unduly prolonged voyage. manufacturing veneers business brings assignments of the case here on 32 er- at place mill of business lumber, ror, main most which two are directed to (Charlestown). Boston In 1920 contentions: cent, inwas per more of its business Africa, (1) al- imported The rule and certain mahogany, which it leged rejection im- logs; was not a dealer in errors in-the admission and assign- damages. sale ported logs evidence covers This' manufacture early Feb- manufactured ments inclusive. forms. various ruary, 1920, made a contract (2) ruling right' intervener’s deliver Company to Talking Victor Machine unpaid the balance of and demur- feet of 4,000,000 and 1921 about during 1920 superior rage appellant; of various mahogany, African manufactured 28 to covers mini- dimensions, certain maximum and (3) assignments assert er- three adjustment mum the cost prices, left required rule, in failure to find and ror *5 had been logs the ocean of the and §, and Admiralty (28 723); Rule USCA 46i/2 and The Mt. Shasta’s determined. overruling requests in for and findings rul- cargoes purchased were in Africa ings, in 1973. and cover contract other commitments this apply in We think the court erred cargo of appellee. The Mt. the Shasta’s ing case. the to this logs feet, mahogany logs 2,156,542 amounted to only rule, applica There is one of universal of the arrival contents measure. After the tion, cases, give in com that is to such and February, 1921, appellee in the pensation Frequently,, for loss suffered. the mahogany feet of lumber 1,603,818 delivered impossible complete ideal is found at this and Talking Company, Machine Victor perhaps tainment; generally market the approxi- prices payment therefor at received value to be approach rule is found the nearest the in mately within the limits forth set reaching actual But the market loss. de- amount so Victor contract. exact facts, inapplicable when, value rule is livered, came the Mt. practicable it approach is not nearest cargo, dispute;' that for in is suitable an ascertainment of the loss. Each 846,377 contract feet. was governed must be by ease its own facts. States is no In the United there market' Magnin Dinsmore, 35, 46, 20 N. Y. Am. logs, in mahogany for sense that Rep; 442. wheat, staple cotton, market for and other There is in such a market commodities. logs In this ease the had market value of mahogany Liverpool, log where auctions by ap no real bearing loss suffered buying frequently. country held In pellee. this damage Its was limited to that caused concerns, mostly limited logs to small delayed delivery mahogany logs— buy representative, who African having imported logs no not it for sale as —but mahogany logs lots. There are in small no and for manufacture sale in manufactured log only here Boston; dealers in users any, loss, Its in diminished form. was ,pne appellee prices, other small actually by it, received manu ' only cern. In 1920 192Í there were six mahogany logs. from these If the' factured including importers mahogany, logs' African arrived October, 1920, :had in appellee, pellee: in the of the United part them; eastern would !nbt it sold would- was false trial directed to the them, kept States. The have manufactured them October, value in logs issue market Arriving February, manufacture.. in 19-21/ 1920, compared with an artificial market offer them sale; it used-'them did1 1921’., mahogany logs February, in large part, value for perhaps entirely, in for -commit made, prices before includ ments drpp findings Court, adopting the The District the. contract. Victor What similar corn- assessor, rulings of the held that may. out then tracts had case, damages delayed measure of this appear. standing does logs mahogany difference delivery of was the ...... n logs, logs, Moreover, logs, market value of the as tho .market value betweett-fhe on their o,f date, contemplation -24,192Q, logs, October within was not their ,as no, value, logs,, arrival, on actual There real and parti.es. market was sub- Feb- ruary total, reached, logs this mahogany thus was market for stantial Country. mahogany logs October, The letterheads of and then manufac- “importers selling no market finding mahogany logs them as described Shack, February, 1921, turers' who in mahogany damaged and veneeri” agent ship’s $185,000, apart quality acted damage the broker for from the many transaction, unduly apparently had prolonged voyage. had On the presum- case, transactions with facts in this we think this entire- ly ably manufacturers of- knew that untenable. mahogany, dealers is, This case effect, ruled the decision is also fair inference that all in Illinois Cent. R. Court Co. country parties knew that there were in Crail, 281 U. S. Ct. mahog- dealers, properly described, in no so Ed. L. A. L. R. a decision logs.' report, but be assessor’s first fore case, report. second his damages (as provp The burden to its lost, railroad transitu, 5,500 pounds of had upon appellee. If and in already noted) coal, and plaintiff that it was claimed en applicable far as de rule replace titled to retail loss at the market contemplated pends upon what was price- consignee’s at the place of business parties contract, market the time of the Minneapolis. buying consignee But the logs, value is excluded. The. prices; at wholesale actual loss was cannot heard assert to. price. the wholesale substantial when there no rule| country, interesting. mahogany log historically market in The ease court, when, evidence, appears was tried twice who on all before District F.(2d) contemplated by opinions wrote two in 2 rule was careful (2d) opinions, parties. and 21 F. 836. In of these each *6 expressed the District Court is the repeat, applicable To rule proper market the retail was not delivery loss, delay in business, Appeals rule. But the for the Court of Third (cid:127)of in its for use F.(2d) reversed 13 decision, Circuit the first as a manufacturer and seller 459, Court, District in consequently the veneers, etc. compliance court, mandate of that aspect how, any see We unable to applied the second decision retail admitted, case, the evidence of this rule, although market to the views adhering considered, to the effect seriously parently already expressed. decision was This affirmed cargo, possible of a sale of the Mt. Skasta’s Appeals F.(2d) by the Court in 31 111. 1921, February, 1920, in October, either or But overruled Court Court question of any bearing on the have could Appeals. theory. The damages, appellee’s even on own plaintiff’s for the Referring to contention logs bought sale; prospective or not lost, price replace the coal Mr. retail contempla possible sale was within said: Justice Stone existed in parties; never tion of the ignores prin contention the basic “This quick market for country a underlying ciple common-law remedies that logs cargo. quantity of the Mt. Shasta compensation afford for the only shall any harm delay did If the suffered, R. Milwaukee & Paul Co. injury St. causing business, of its it was the conduct Arms, 374; 91 23 L. Ed. v. (logs) during shortage of raw material it a Ry. Chicago, & St. P. Co. v. McCaull- M. nearly arrival pending four months Co., S., supra, of 253 100 U. page Dinsmore delay simply trans- Shasta. of Mt. 504, 801; 64 v. 40 Ed. Robinson S. Ct. L. buyer— possible a muted into Harman, 855; Sedgwick, 850, Exch. Dam 1 buy, Novem- It did not a seller —of (9th ages Ed.), Sutherland, Damages 25; 200,009 1929, lot, feet, 19, a small about ber (4th 12; Ed.) Contracts, Williston on § § appear. does not price what at * ** respond urged by The rule claimed, and there if—as was Of course applied in literal accordance ents was support Mount Shasta’s is evidence stated, As —the statement. so with its conventional unduly injured in» logs quality- they usually applied arise, to cases when voyage, prolonged is entitled to accurate method of ar a convenient and (cid:127) damage. recover that element of. recovery riving at amount stated, proceeded compensatory. As it would have assessor seems to applicable had been fail building up meager, been here if there that, :the coal, deliver the entire carload since (cid:127).though artificial, market for the sale ure to highly
461
seeking justice
there was
full carload
less inconvenience in
price, which
the wholesale
at
mythical
seeking
point
reality
at
of destina
than in
procured
could have been
logs. This as-
compensation,
full
nonexistent market value of
tion,
affordfcd
would have
pect
Ry.
is shown
Chicago,
Co. McCaull
the trial before the assessor
M. &
P.
v.
St.
Ry. by
Georgia
assignments
14,
9
supra;
inclusive.
Dinsmore
Central
Co.
App.
Co.,
Coal
28 Ga.
Co. American
v.
Another
funda
asserting
case
the same
Houston, 155
320; Wendnagel
110
E.
v.
S.
Pulp
mental rule is
v. Chicoutimi
Wertheim
v.
Erie, etc.,
Co.
664;
R. R.
App.
Ill.
Lake
case,
Co., R. 1911 A.
301. In that
L.
C.
875;
Fantz,
569, 154
E.
85 Ind.
N.
App.
delay
plaintiff
recover
sued to
Ry., 13 Allen
Cutting v.
Trunk
Grand
quantity
moist wood
delivery of a
pulp,
381; Crutchfield & Woolfolk
(Mass.)
70s., the
claiming the difference between
Mass.
131
R., 239
Director General of R.
port
price
delivery
at
Y.,
340;
O. & Western
N. E.
Smith v. N.
date,
5d.,
price
the market
and 42s.
Ry.
521;
Co.,
Y.
119 Misc.
196 N.
delivery.
place
on the date of actual
same
Co.,
Yazoo M. V. R.
Delta Grocer
&
Co. v.
appeared
plaintiff
But
sold the
777; Chicago, R. &
134 Miss.
I.
So.
65s.,
and it was therefore held
pulp
441;
Ry.
Broe,
86 P.
Pac.
16 Okl.
Co. v.
he was entitled
recover
the difference
R.,R.
& Nashville
Roth Coal Co. v. Louisville
5s.,
loss,
profit
his actual
404; Quanah
A.
Tenn.
&
S. W.
See,
him.
given
rule would have
(Tex.
Novit,
Civ.
P.
Co. v.
199 S. W.
also,
Agius,
Bros. v.
L. R.
A.
Williams
App.),
circumstances,
respond
or,
some
Iossifoglu (D.
F.(2d)
510;
32C.)
purchase
ent had
constraint
repair
than a
carload lot to
loss
less
his
helpful
not be
would
to review
business,
in*that event the
carry on his
which, damages
innumerable cases-in
almost
have been
re
measure of
loss would
his
cited)
Many
of them are
been discussed.
necessary replacement,
tail market cost of the
-
-
supra,
opinion.
in Mr. Justice Stone’s
Haskell
Hunter,
Mich.
309. But
in the actual
circumstances
cost of re
error to
the Victor con
rule
shortage
price
the exact
at retail
placing
immaterial.
contract,
tract
loss,
the measure of the
since it
similar,
'in
outstanding commitments
capable
replacement,
was,
fact, re
or did
might
which the
have used
*7
placed
respondent’s
in the course of
business
logs,
com
the Mt.
use
purchases
carload
from
made
lots at whole
petent.
damages
theoretical
loss of
Such
price
expense.
sale market
without added
-,
good
speculative.
will is too remote and
“There
no
the
greater
inconvenience in
We turn
to the intervener’s case.
-application of the one
of value than
standard
above,
As noted
no formal state-
advantage
other,
the
perceive
and we
no
concerning
ment of the
the intervener’s
facts
gained
be
from
rigid
an adherence
a
uni
below,
In the
claim.
court
formity,
justify
sacrificing
would
sustaining
intervener’s claim,
the amount
rule,
reason of the
to its
test of
The
letter.
controversy
simply
is referred to
as “bal-
at best hut a convenient means
money.”
freight
ance of
This overlooks -of
at the
It
getting
loss suffered.
he dis
fact that it must have
part
been in substantial
carded and
re
other more accurate means
demurrage,
assign-
up of
and that the
to, if,
special reasons,
sorted
for
it is not exact
ment
intervener
at least
to the
did not,
-or otherwise
applicable.
not
See Wilmoth
any demurrage.
terms, cover
(C.
v.
A.)
51;
Hamilton
127 F.
C.
Theiss
Weiss,
160
Pa.
A.
45 Am. St.
Dealing
merits,
with
the court sets
Rep. 638; Pittsburg
Mfg.
Sheet
Co. v. West
assignment
of the'
forth:
“The
Sheet
Co.,
Penn
Steel
201 Pa.
4G3 six $15,009 veneers, specifications The contain of etc.” item already said. An from basic items: cargo resulting physical injury to the sup- voyage, perhaps prolonged unduly Tak- I. Loss on Not Grades Called for evi- of ported by fair preponderance by en Viator Contract. persuasive evidence although dence, fact heading, questions this of Under contrary. open trial, including arc for full dates — inferentially in- damage item of Another of determination of market values record, $28,956.- is of defective dicated in this values, of market kinds the various “No. 2 Com- 361,959 of so-called feet mahogany from the Mount manufactured cargo. mon.” appellee as- But the cannot damages sess sales States United off- disposed byof If ease this can now he prices.. made at less than shown market setting $15,000 the amounts $28,956.72, statutory with interest at II. Loss on un Grades Sold Viator per (41 p. § of 4 cent. USCA Stat. [46 525> der Contract out Mount Cargo. $30,555.55 (with in- 743]), § amount of heading, appellee Under contends admittedly from the terest) prices under Victor contract may But judgment be accordingly entered. reduced, February retro- that, cannot be sure as record we on this actively, delay mar- because fall damages wc rale of prices. upon ket burden appellee may not adopted, make to show that such reduction was caused arguable claims, if, reasoñably substantial delay, reason provi- reasonable time after mandate within such sions the Vietor contract. may fix, as from this court specifications appellee shall file in that court III. Mill Shutdown. claims, stand then the ease for such On of loss on cut out-turn con- hearing thereon, well on all further adopt, which we for the counsel $15,000 concerning the items tentions $24,375 cedes that this should nót item $28,956.72, above noted. included. decree District Court is vacat- Logs, IV. Deterioration is the item ed, and the case is remanded to that court $15,000 referred opinion. to in the proceedings further not inconsistent with open questions fact as to that All are item opinion; recovers costs of at new trial. appeal & both Palmer Com- Parker V and VI are claims for interest pany the Bowery East River National & cent, per months at 6 on the four cost of the Bank. cargo ($4,740), pre Mount Shasta Rehearing. On paid freight ($1,050). These are hot' items petition rehearing ap- damage proper elements of pellee, Company, granted Palmer & Parker the difference in the of-' allowed question September of the rale product manufactured reason of the] fully reargued. has been court delay. appellee’s damages adheres to the view tested adopt We cannot contention pellant’s learned counsel that the reduction drop involves prices as make the has mo- court a product, market values manufactured specifications for leave file tion take *9 inapplicable comparable dates, an test. evidence thereon. The motion is allowed, filing specifications far as the ordered that the decree of It is June cerned; denied. The same otherwise to read as follows: be amended will, course, specifications decree the District vacat- Court is court below. ed, ease remanded that court for and the proceedings hot with the inconsistent specifications so further now refer We opinion of and the necessary amplify far as our hold day; the passed recovers down applicable “the rule is ing that the actual appeal against both Palmer & Park- delay delivery costs loss to Bowery River & East for use er its business Bank. National manufacturer seller of as a