The Atlantic Refining Company, Owner of the Tankship Atlantic Trader v. Matson Navigation Company, Owner of the Steamship Hawaiian Retailer

McLAUGHLIN, Circuit Judge.

In this admiralty case the facts are stipulated. They show that the tanker Atlantic Trader, on December 16, 1950, proceeding in the Delaware River fouled her propeller and tailshaft on a buoy chain. A survey determined she had not been rendered unseaworthy and the repairs were deferred until her next dry-docking. On January 29, 1951, she suffered bottom damage arising out of a grounding as the result of appellant’s s/s Hawaiian Retailer overtaking her. After discharging her cargo the Atlantic Trader proceeded to the drydock where she arrived February 6, 1951, for the repairing of the bottom damage, the damages caused by the buoy, and for maintenance repairs, general overhaul and annual hull, boiler and machinery classification surveys which had been scheduled for March 14, 1951. All the work was performed concurrently without mutual interference and completed at the same time.

There was a consent decree awarding the appellee 75% of its provable damages. The parties had agreed on the cost of the grounding damage repairs and that appellant should pay 75% thereof. The admitted drydocking expense amounted to $18,459.07 which the Commissioner concluded should be borne by libelant. The district judge, sustaining the exception to that part of the Commissioner’s report, held that the drydocking cost should be included in the Atlantic Trader’s grounding damages.

The one appeal issue is whether, under the circumstances, appellee is entitled to its drydock expense from appellant. The latter argues that, though the repair of the tort damage was immediately necessary, Atlantic Refining cannot charge it for time and costs which had to be incurred in any event and therefore were not proximately caused by the grounding.

Appellant complains that although the Atlantic Trader was forced into dry-dock by the grounding damage, once there it had other repairs and routine overhauling attended to at the same time. It admits these caused no interference to the tort job and that there was no extra cost to it. Nevertheless, it, in effect, contends appellee should have held off the other work until after the tanker’s hull had been fixed. That this would have meant completely unnecessary extra expense and further loss of time to the Atlantic Trader is not commented upon by appellant who flatly claims appellee is receiving an unjustified windfall. We cannot accept this. Appellee’s ship had been rendered un-seaworthy through the major fault of appellant. The bottom condition could not be remedied without drydocking. The tanker discharged her cargo at Philadelphia at once, completing the task the next day, January 30, 1951 and then sailing for the drydock. While the ship was laid up for the tort repairs appel-lee had her seasonal checkup and other damage taken care of. There was no rush about these latter. As events turned out she went off drydock February 14, 1951 and left the shipyard the following day. This was a month prior to the date on which she had been expected to go in for her survey and'forty-three days after the accident. We see no reason for penalizing appellee because of the common sense practice it followed.

The proximate cause of the forced docking was the tort. The tanker was seaworthy otherwise. It had a March overhauling scheduled which was not mandatory and probably could have been postponed. Appellant urges that The Pocahontas, 2 Cir., 1940, 109 F.2d 929, supports its position. We disagree. The governing law set out in that case relevant to the situation at bar is restitutio in integrum which, under the present facts, includes the cost of necessary repairs. The court said on the particular point at page 931:

“If the collision damage is serious enough to necessitate an immediate lay-up for repairs, the owner may charge the tort-feasor with what the vessel would actually have earned during the detention period; and there will be no abatement of the amount because the owner chooses the occasion to accelerate his annual overhaul or to repair damage for owner’s account of a character not necessitating an immediate layup and not extending the detention period beyond the time required for collision repairs.”

Certainly if there is no abatement of earnings under the above Pocahontas doctrine which states an issue identical with the one before us, there should be no abatement of the expense of restoring the ship to seaworthy condition. From the stipulated facts, appellee’s action in seeing to it that the survey and the other repairs were disposed of during the Atlantic Trader’s lay up was in strict accord with Pocahontas. It in nowise conflicted with the proposition that even a tortfeasor is entitled to the benefit of the principle of avoidable damages. In the earlier Second Circuit decision of Clyde S. S. Co. v. City of New York, 1927, 20 F.2d 381, the damaged vessel was operated for seven months before being drydocked. Nor does Moore-McCormack, Lines Inc., v. The Esso Camden, 2 Cir., 1957, 244 F.2d 198, lend any real substance to appellant’s contention. The phase of it in which we are interested was a minor element of that suit and dealt with briefly. However, it is very clear from the Esso Camden opinion that the damaged vessel was in drydock seventeen days and that there was a commitment regarding it of two days drydock for general repairs. In other words there was a distinct separation of the total drydock time with the tort repairs covering fifteen days out of the total. We are confronted with no such cleavage problem. Concededly appellant has been charged for the use of the dock only while Atlantic Trader’s damage for which it was responsible was being worked on. The circumstance that simultaneously appellee was able to attend to the ship’s checkup and other repairs was merely a fortuitous event legitimately taken advantage of by appellee. Our own examination has not revealed, nor have we been referred to, any decision denying drydock cost under facts as here shown.

The decree of the district court will be affirmed.