United Transp. Co. v. Berwind-White Coal-Mining Co.

HOUGH, Circuit Judge

(after stating the facts as above). The defense raised below was twofold: (1) That under the charter party language first above quoted the parties intended that no tender of this vessel could or should be made until “custom house formalities are fulfilled”; and (2) that as matter of law (without specific agreement to the contrary) entry at custom house was a prerequisite to being “ready for cargo at her loading port.”

Both these propositions Learned Hand, Circuit Judge, in the court below, decided against respondent, and we agree with his reasons and result. We add as references Gill v. Browne, 53 F. 394, 3 C. C. A. 573, and Bonanno v. Tweedie Co. (D. C.) 117 F. 991, affirmed 130 F. 448, 64 C. C. A. 650. These cases are not “on all fours,” but excellently illustrate the principles of the decision below.

At this bar appellant asserts reliance on the second above quoted excerpt from the charter party, declaring that this conferred upon it the right to cancel the charter party substantially at any time upon paying six days’ demurrage and expenses. Of this belated contention it is enough to say that the rights conferred by that portion of the charter party could arise only if and when “cargo license was not received or was revoked,” or at some time “while steamer was waiting for cargo.”

There is not a word in the record concerning difficulties with any cargo license, and assuredly this steamer never waited for cargo ; she never had a chance to. Consequently these clauses of the charter party never became applicable.

Complaint is made of the amount of damages, although it is admitted that the cause is legally identical with Venus Shipping Co. v. Wilson, 152 F. 170, 81 C. C. A. 368; and that the court below professed to follow that ease. Remembering (as was said in the Menus Case) that “approximate accuracy is all that can be reasonably expected,” we have gone over the commissioner’s report and think appellant’s complaints baseless.

The questions in such a ease are these:

(1) How much would the shipowner have made under the canceled charter if all had gone well; if no casualty had occurred, and no extraordinary expense been encountered?

(2) How much did the charterer make under the substitute charter, the circumstances being what they actually were?

The basic facts ascertained, and it appearing that the substitute charter represented a loss, .it is the business of the court to grant as solatium to the injured shipowner the difference between what he did earn and what he would have earned during the time that would have been required to fulfill the charter of which he was wrongfully deprived. The computation and adjustment of such a matter is not a scheme of absolute certainty, but the inaccuracy must he plain, and plainly injurious, to move any court in favor of the original wrongdoer; i. e., contract breaker. We are not so moved in this case.

Decree affirmed, with interest and costs.