Agwidale

CAFFEY, District Judge.

The libelant' excepts to the commissioner’s report. The claimant moves to confirm it.

I. In 1943 the Agwidale, owned by the libelant, collided with the San Veronico. The parties agreed that the San Veronico would be liable for 85% of the provable damages of the Agwidale suffered as a result of the collision. The stipulation was embodied in the order appointing the commissioner to determine the damages. The commissioner heard a stipulation as to the facts, heard argument and assessed damages. I adopt his opinion.

II. The libelant has excepted to only one item in the report. That deals with the damages from the detention of the ship. In determining the damages from detention the commissioner took into consideration the charter party under which the United States, not a party to the action, was time charterer of the ship. He found that the charter party provided for payment of half hire during the repair period and of full hire while the vessel was waiting for a convoy and that these sums were paid. Accordingly, he fixed as damages for detention only the half hire during the repair period which had not been paid by the charterer.

The libelant contends that the commissioner should not have considered the charter hire paid by the United States and that he should not have ruled that the measure of damages for detention when a vessel is under a long time charter is the hire which the vessel owner loses. Instead, the libelant contends that the commissioner should have ruled that the measure of damages is the value of the use of the ship to the owner, the charter rate of hire being prima facie evidence of such value to be taken as the yardstick in the absence of any other evidence.

All of the exceptions raise only one question. That is this: Was the commissioner correct in considering the amount of hire actually paid by the charterer during the period of detention in determining the damages suffered by the libelant?

III. The case of Chargeurs Reunis Compagnie Francaise De Navigation A Vapeur (“Ceylan”) v. English & American Shipping Co., 9 Ll. L. L. R. 90, affirmed 464, is squarely in point. In that case the French Government had time-chartered a ship owned by the Chargeurs Reunis under a wartime requisition. The ship collided with one owned by the English & American Shipping Company, which was found liable. The charter party provided for payments of hire during the period of detention for repairs and the payments were made. On appeal it was said: “The question [in the lower court] was whether the French Government could in their own name, or in the name of the shipowners, maintain a claim for damages in respect of the period of detention”. Chargeurs Reunis casé, supra, 464. The Court of Appeals squarely-held that the French Government could not maintain a.suit for such damages nor could the shipowners collect the amounts of hire paid by the French Government. In support of that view the statement of Lord Justice Bankes on appeal was this (p. 466) : “It seems to me that if the damages are not recoverable by the French Government because the French Government have no right which alone would entitle them to recover them, it does not lie in the mouth of the owners to say they are in a better position.”

This case clearly disposes of the contentions of the libelant.

IV. The British case is in line with the holding by the Supreme Court of the United States that the rule for damages in admiralty causes is the actual pecuniary loss. The Conqueror, 166 U.S. 110, 126-127, 134, 17 S.Ct. 510, 41 L.Ed. 937. The same proposition is sustained by the Circuit Court of Appeals for this Circuit. Navigazione Libera T. S. A. v. Newtown Creek T. Co., 2 Cir., 98 F.2d 694, 698-699. It is also supported by numerous other Federal decisions, as well as by a leading case in the Court of Appeals of New York. Drinkwater v. Dinsmore, 80 N.Y. 390, 392, 393, 36 Am.Rep. 624.

V. The libelant argues that Pool Shipping Co. v. United States, 2 Cir., 33 F.2d 275, controls the decision in the case at bar. In the Pool case the court refused to consider general average contributions to the shipowner in mitigation of the damages he might collect from the party injuring his ship. It held that the contributions were like insurance and that the payment of a contribution subrogated to the contributor the right to sue to that extent.

But the payment of charter hire during a period of repair is not a payment of insurance. The amount to be received is fixed by agreement between the parties beforehand and has no relation to the actual damages or to their cause. Furthermore, the charterer has no cause of action against the party damaging the ship. There is no subrogation. Robins Dry Dock & Repair Co. v. Flint, 275 U. S. 303, 309, 48 S.Ct. 134, 72 L.Ed. 290; Chargeurs Re-unis Compagnie Francaise De Navigation A Vapeur (“Ceylan”) v. English & American Shipping Co., supra, 9 Ll. L. L. R. 465, 466.

VI. The libelant argues also that the doctrine in Massachusetts, that the negligent party in a personal injury suit cannot use payments made to the injured person by other persons to diminish the amount of his liability, is applicable. Shea v. Rettie, 287 Mass. 454, 192 N.E. 44, 45, 46, 95 A.L.R. 571; Elmer v. Fessenden, 154 Mass. 427, 28 N.E. 299. The principle of those cases is fully met by the contrary New York holding. Drinkwater v. Dinsmore, 80 N.Y. 390, 392, 36 Am.Rep. 624. But the cases mentioned are not really applicable to a technical admiralty situation.

VII. Since the first exception of the libelant raises the question of the day from which the damages ran, I approve the finding of the commissioner that the date is that of the next payment of the charter hire under the charter party rather than the date of the collision.

The amount of the commissioner’s compensation agreed on by counsel is approved.

Exceptions overruled. Report confirmed.

Settle order on notice.