Dunbar & Sullivan Dredging Co. v. Title Guaranty & Trust Co. of Scranton , 106 N.Y.S. 180 ( 1907 )

Robson, J.:

In fixing the damages to be awarded plaintiff the referee adopted the rule- of damages applied in admiralty cases and allowed the cost of repairs already made by plaintiff, and those yet to. be. made to restore the boats to the condition they were when leased, for the idle time of boats while repairs were being made, together with interest on these amounts. We think that this rule, adopted by the referee, is correct, both because it is clearly within the terms of the 'agreement itself,-as embodied in the language of the contract,.and also, even if not so verbally expressed, it would, as matter of law, have been implied as the proper rule of damages to be applied in this case. (Auten v. Bennett, 183 N. Y. 496.) Plaintiff’s loss for lay time of the boats while undergoing repairs, as-well as interest' upon the sums awarded for repairs and lay time, w.ere proper items for which plaintiff was entitled to allowance in fixing the amount of its damages. (Whitehall Transportation Co. v. N. J. Steamboat Co., 51 N. Y. 369, 373; Mailler v. Express Propeller Line, 61 id., 312, 316.)

The application of this rule made by the referee in his decision of the case has, however, resulted, as we conceive, in error, which requires a reversal of the judgment entered on his report. When these vessels were returned in the condition already adverted to, the plaintiff was then entitled to recover all the expense necessarily and properly required in repairing them, so' that their condition should be equal to that in which they were, received, less, of ctiurse, the depreciation resulting from the ordinary use of the same during the term for which they were leased, and, of course, also providing as'a further condition that the expense of repairing any one of them -should not exceed its original value, and, further, should hot involve an expense greatly disproportionate to the amount of its depreciation by reason of its injury. (Petty v. Merrill, 9 Blatchf. 447.)

It. does not appear that the amounts which the referee has allowed for present - repairs, actually made, and the additional repairs necessary to restore any one. of these vessels to its condition at the time the- lease took, effect either exceeded its actual value, or were greatly disproportionate to the amount of its depreciation by reason of its injury;' but it- does clearly appear that the referee, in determining the value of future repairs, included as a material item thereof a. charge, which, under the circumstances of the case dis•closed by the evidence, could not properly be considered in arriving at that amount. When the boats were returned to plaintiff the measure of defendant’s liability was, as we have, said, excluding for the present consideration of charges for lay, or idle, time while repairs were being made,' limited to the cost of repairs necessary to resiore them to their condition at the. time they were leased. Most of these vessels, in order that complete repairs could be made thereon, required either that they should be dry-docked, or in some way taken from the water. In making the partial-repairs, for which plaintiff has recovered, as one of the items of damages awarded by the referee is included the expense of dry-docking each of the scows included in the leased plant. Before the scows were placed on the dry-dock it was necessary to remove the heavy iron doors which closed the bottoms of' the pockets in these scows. This process was attended with considerable expense. The expense of dry-docking each of these scows, after it was prepared for placing on the dry-dock, is,, as we gather from the evidence' in the case, from $500 to $1,000. The expense of preparation of the scow for placing on the dock, and the expense, of dry-docking itself, are not necessary expenses of repairs, unless necessarily incident to the actual repairs themselves. The expense of preparing these scows for the dry-dock and also the expense of docking them áre included in the partial repairs to them, which plaintiff made, and for which it has recovered. Mo satisfactory reason appears why the whole repairs could not then have been completed, which would have subjected defendant to the expense of a single preparation for and docking of each scow, except that, as it is urged, defendant immediately required the boats for léase, or use, during the ensuing dredging season. "While this may be true, as to some of the scows, it certainly cannot .be urged as to the scows Monroe Doctrine and Reciprocity; for they were both laid up at plaintiff’s dock immediately after the partial repairs on them were completed and, so far as appears, so continued during the remainder of the season. . Notwithstanding this fact, and notwithstanding the further fact that the evidence does not disclose that the idle time, which would have ensued if gom'plete repairs. had been made upon the scows, which were put into actual service by defendant on completion of partial repairs thereon, would have offset the: charge for redocking, the referee appears to have allowed as a part of the estimated expense of making complete repairs the expehse of redocking at least three of, these scows. If the expense of a second docking can be allowed against defendant as a part of’ the expense of additional repairs^ when it appears that all repairs could have been completed when the scows were first docked, it would seem that the exjiense of a third, or even a fourth docking, could with equal justice be''charged •to it if plaintiff saw fit to continue at intervals to make only partial repairs. This additional and apparently unnecessary and unwarranted expense included in the damages awarded for future repairs is a considerable one, but we-are) unable from the evidence to determine with any degree of accuracy its amount. We are, therefore, constrained to direct a reversal of the judgment and grant a new trial, wit'll costs to the appellant to abidé the event.

All concurred, except Kruse, J., who dissented.

Judgment reversed -and new trial ordered,, with costs to the appellant to abide event: