The North Star , 44 F. 492 ( 1890 )

Brown, J.,

(after stating the facts as above.) The main exception here relates to the disallowance by the commissioner of the loss of profits upon the charter of the Sheffield to carry 25,000 tons of iron ore. The facts connected with this claim are briefly as follows: On the 28th of March, the Northwestern Transportation Company, by H. II. Brown, vice-president, agreed with tho Interocean Transportation Company to carry for it 60,000 tons of ore from Two Harbors to Chicago, at $1.20 per gross ton. On the 1st of April, E. M. Peck, president of the Northwestern Transportation Company, wrote to Brown, as managing owner of the Sheffield, (who, as vice-president of the Northwestern Transportation Company, had signed tho contract with the Interocean Company,) notifying him of the charter, and saying that the steamer Sheffield should carry 20,000 (afterwards -raised to 25,000) tons of the above amount. This was agreed to by Brown.

This is all of the so-called charter, for the loss of which this large amount of damages is claimed. Now, while this contract may undoubtedly be construed as a binding contract on the part of the Sheffield, and the Sheffield alone, to carry this amount, it was construed by the parties themselves as a contract between the Northwestern Transportation Company and Brown to carry that amount in any steamer he might designate, since, after the loss of the Sheffield, the Northwestern Transportation Company paid to Brown $2,000 for a reassignment or release of this contract. This could only be done upon the theory that Brown had tho right to substitute another steamer in place of the Sheffield. By receiving the money, Brown acquiesced in this construction of the charter, and is not at liberty now, as against the North Star, to make a claim based upon a totally different construction.

Whether a libelant in any case of total loss is entitled to recover the profits of an unexpired charter, 1 do not find it necessary to express a decided opinion. It has been generally supposed that he w'as limited to a recovery of the net freight upon the particular voyage, and that interest upon the value of his vessel from that time was allowed in lieu of all other damages; and, with a single exception, the authorities seem to favor that contention. The Columbus, 3 W. Rob. 164; The Amiable Nancy, 3 Wheat. 546. The case of The Freddie L. Porter, 5 Fed. Rep. 822, 8 Fed. Rep. 170, is certainly authority for a broader claim. It ought to be said, however, in explanation of this case, that the opinion of the district judge is founded upon authorities holding that the owner of an injured vessel is entitled to •: net freight for the particular voyage, and, in cases of partial loss, to an allowance in the nature of de-murrage while undergoing repairs. The circuit judge affirms his opinion in a very brief opinion, and couples with it the admission that his decision may he an advance upon any which has been made. It is certainly difficult to reconcile this case with that of The Amiable Nancy, 3 Wheat. 546, in which the probable profits of a voyage yet in fieri were disallowed, and which has heretofore been accepted as settling the law for this country. There are reasons for allowing the loss of a profitable charter in a case of damage, while the vessel is undergoing repairs, which do not apply to á case of total loss. The time during which the vessel is being repaired is comparatively a short one, and the profits of the charter are adopted simply as a measure of estimating the demur-rage; while, in the case of a total loss, the vessel may be under a charter which has one of some j^ears to run, and, if the owner is entitled to recover the profits of such charter at all, there would seem to be no limit to such right, so far as respects the time of its continuance. I am not satisfied that there is anything in this case to take it out of the scope of the decision in The Amiable Nancy.

2. With reference to the allowance of the item of $12,000 interest upon the value of the Sheffield, (which the commissioner puts at $160,-000,) I have felt more doubt. The Sheffield was guilty of so many faults in connection with this catastrophe that I have been strongly disposed to reject 'this item of interest, as its allowance is a matter of discretion; but upon reflection, I am satisfied that with regard to the main fault, viz., the failure to stop and reverse-, a fault but for which the collision would not have occurred, the steamers were equally to blame. In addition to this, there was a frankness upon the part of the Sheffield’s officers and crew in admitting their faults, which, while it does not disarm-criticism with respect to their conduct, inclines one to take as favorable a view of their case as the facts will warrant. Upon the other hand, there was such a marked discrepancy between the testimony of the men upon the Star, and the statements made by them in their protest, and even in their answer, and 'such obvious improbabilities upon the face of their testimony, that there is raised in my mind something more than a suspicion that their intention was to make the testimony so far as possible fit the exigencies of their case, as they had been developed by the libelant’s evidence, a practice very common in collision cases, .and one which .the English rule, with regard to the filing of preliminary acts; was intended to provide against. Upon the whole, I have concluded not .to disturb the report of the commissioner upon this point.

3. The-only other item with regard to which a contest is made relates to the expenses of- the North.Star while undergoing repairs at Buffalo and .Cleveland, which were claimed at $720,66, and allowed at $358.75; .app'ttféií'tly -Upon the ground that the testimony did not satisfy the commissioner that- such expenses had been incurred. It is true that the testimony with regard to these expenses is not very satisfactory; but so far as it goes, and taking it at its face value, I see no reason to douht that-they were actually incurred while the vessel was undergoing repairs, and were consequently a proper charge against the Sheffield. With regard to this, the witness Meadowcroft was asked the following question:

“What were the actual expenses and outlay paid by your company in repairing the damage done to the North Star in this collision, and in consequence of your boat being so injured? Please give everything in the way of damage aside from demurrage.”

In answer to this, the witness gives the items of the damage, the last one of which is as follows:

“Expenses of vessel while undergoing repairs at Buffalo and Cleveland, made necessary by reason of collision, during the eight days which were claimed the vessel was detained, and including also the towing at Cleveland, $720.66.”

On cross-examination, he testified as follows:

“In giving the expenses during the time' you claim she was detained in repairing, you have included some tow bills and possibly other items of that description. Will you give the amount per day of running expenses of the ship during that time? Answer. $83 per day. Question. Have you included the fuel for running to Cleveland, and if so to what amount in dollars? A. The consumption of coal by which the vessel was running to Cleveland was one, ton and a quarter per hour for eighteen hours at $2.50 per ton; and while in port the consumption of fuel was seven tons per day of twenty-four hours, so that the fuel in running to Cleveland was about $56, as we have charged.”

This was all the testimony in relation to this item. If the running expenses of the ship were $88 a day, eight days, this would amount to $664, which, with the $56 for fuel, would make up the $720, very nearly the amount of his bill. Now, as the witness gave this as one of several items of his account, we think it was incumbent upon libelants to cross-examine him with regard to the items of such expenses, if they entertained a doubt as to the propriety of their allowance. Instead of this, the commissioner makes an allowance for seven and a half days, of $47.74, for the pay and subsistence of the officers and crew, $358.75, a sum which, in view of this testimony, seems somewhat arbitrary. If the witness had been cross-examined with regard to this account, and had been unable or unwilling to produce the items, there might be some reason for disallowing the whole amount; but, in the absence of such cross-examination or counter-showing, I see no reason why his general testimony should not be accepted as true. As the crew were detained on board for the eight days, their wages would undoubtedly he a proper charge, as well as their provisions, and the fuel and supplies of other kinds needed and used upon the vessel while in port. Upon the whole, I have concluded to sustain this exception, and allow the item at the «amount claimed, $720.66.

It results that a, final decree will be entered for the libelants for the sum of $84,050.64, with interest from September 21,1890, the date of the commissioner’s report.