Bouchard Transp. Co. Inc. v. Tug Ocean Prince, 946

• Decision Date: 18 October 1982
• Docket Number: D,No. 946,946
• Citation: 691 F.2d 609
• Parties: BOUCHARD TRANSPORTATION CO. INC. and John & Frederick Barge Corp., Plaintiffs- Appellants, v. The TUG "OCEAN PRINCE", her engines, brokers, tackle, furniture and apparel in rem and Red Star Marine Services, Inc., and Red Star Towing and Transportation Co., Inc., in personam, Defendants-Appellees. ocket 81-7851.
• Court: U.S. Court of Appeals — Second Circuit

Page 609

691 F.2d 609

68 A.L.R.Fed. 761

BOUCHARD TRANSPORTATION CO. INC. and John & Frederick Barge Corp., Plaintiffs- Appellants, v. The TUG "OCEAN PRINCE", her engines, brokers, tackle furniture and apparel in rem and Red Star Marine Services Inc., and Red Star Towing and Transportation Co., Inc., in personam, Defendants-Appellees.

No. 946, Docket 81-7851.

United States Court of Appeals, Second Circuit.

Argued April 5, 1982.

Decided Oct. 18, 1982.

George F. Brammer, Jr., New York City (Grainger & Tesoriero, New York City, of counsel), for plaintiffs-appellants.

Richard E. Meyer, New York City (McHugh, Leonard & O'Connor, New York City, of counsel), for defendants-appellees.

Before KEARSE and PIERCE, Circuit Judges, and LEVAL, District Judge. ^*

LEVAL, District Judge:

Plaintiff Bouchard Transportation Co. (Bouchard), the owner of a damaged barge, appeals from a final judgment of the United States District Court for the Southern District of New York after a nonjury trial before Judge Whitman Knapp. Defendant, the tug Ocean Prince, which had the barge in tow, conceded liability for the collision. Judge Knapp awarded damages for surveying costs-$550; for repair costs-$10,900; and for chemist costs-$420. He denied damages for the cost of gasfreeing the barge's tanks, as well as for loss of profits while the barge was out of service during the repairs. These denials are the subject of this appeal.

Facts

Bouchard's tank barge B No. 55 was being towed by the tug Ocean Prince from Astoria to the Brooklyn Army Base on September 9, 1979. The barge's tanks were empty, although not free of gas or other petroleum residue. At about 8:05 a. m., the tug slowed; the barge, continuing to advance on its momentum, rammed the tug's stern caprail, which punctured the wrapper plate of the barge's forward port-side tank about five feet above the water line, making a crack six to eight inches long, 1/4 to 1/2 inch wide.

Upon learning of the collision, Bouchard directed that the barge be towed to the Standard Tank Cleaning Corporation in Bayonne, New Jersey, for gasfreeing. Gasfreeing is the removal of volatile and toxic petroleum fumes from the tanks and is a prerequisite to the performance of welding and other repairs. After this operation was completed on September 16, Bouchard moved the barge to the yard of Caddell Dry Dock and Repair Company on Staten Island for drydocking and repairs. At the drydock, marine surveyors acting on behalf of both parties examined the collision damage on September 18 and agreed that the repair of the collision damage would require six working days and would cost $10,900. The joint survey report also recommended that permanent, rather than temporary, repairs be made. These repairs were then carried out.

The barge was scheduled to undergo biennial inspection as required by the Coast Guard two months later in November 1979. It also had certain items of damage previously outstanding, which were expected to be repaired during the inspection lay-up in November. The barge had been grounded by another tug, causing damage to its bottom plates. Also, one of the pumps used to discharge cargo was not operating and needed repairs. Because the collision damage called for immediate lay-up and repair, Bouchard decided to accelerate the outstanding repairs and the required inspection, conducting all of these during the lay-up occasioned by the collision. All repairs were completed on October 17, with a total of twenty working days consumed.

The trial judge found that "permanent repairs ... were necessary." ¹ Joint Appendix at 131a. The collision repairs were performed simultaneously with the more extensive and time-consuming owner's repairs in different areas of the barge. The owner's work required a gasfree vessel. No finding was made as to whether the collision repairs required gasfreeing the entire barge or only the forward tanks.

In denying liability for detention, Judge Knapp relied upon a dictum of Judge Swan in The Pocahontas, 109 F.2d 929, 931 (2d Cir.), cert. denied, 310 U.S. 641, 60 S.Ct. 1088, 84 L.Ed. 1409 (1940). That dictum was understood by Judge Knapp to suggest that detention damages should not be awarded if owner's repairs performed during the same lay-up as the necessary collision repairs extend the detention period beyond the time required for the collision repairs. Because this proposition does not correctly state the law of the circuit, we reverse and remand.

Discussion

Since it is costly to take a commercial vessel out of service, owners commonly permit damage not requiring immediate attention to await a time when the vessel will be laid up for another reason. Similarly, if a vessel is unexpectedly taken out of service for repairs resulting from a collision, it is a common practice for owners to take advantage of the drydocking and lay-up to perform previously outstanding repairs. In such instances, owners may also accelerate periodically required inspections so that they will not require an additional lay-up.

When part of the work done in the lay-up is attributable to a collision caused by a tortfeasor (referred to in this opinion as "collision repairs") and part is other work not chargeable to a tortfeasor (referred to as "owner's work"), disputes arise as to how common expenses and losses should be allocated. The tortfeasor will contend that the owner receives the unfair benefits of a free ride if he recovers for such common expenses and loss of earnings although using the time to perform owner's work, which would inevitably have subjected the owner to the same costs at a future date. Owners argue conversely that the tortfeasor gets a free ride if he escapes liability only because of the owner's prudence in taking advantage of the lay-up to do other work. Neither argument is completely without merit. Each points up imperfection in the attempt to achieve the stated goal of restitution in integrum; making the owner whole, or giving him the difference between the value of the vessel before and after the collision. The "Potomac", 105 U.S. 630, 631, 26 L.Ed. 1194 (1882); The Baltimore, 75 U.S. (8 Wall.) 377, 385, 19 L.Ed. 463 (1869); Williamson v. Barrett, 54 U.S. (13 How.) 101, 110, 14 L.Ed. 68 (1851); The Winfield S. Cahill, 258 F. 318, 321 (2d Cir. 1919).

In making him whole, the owner of a vessel damaged through the fault of another is entitled, over and above the cost of collision repairs, to an award for actual profits lost during the detention necessary to make the repairs. Such actual lost profits ² must be proven with a reasonable degree of certainty. The Conqueror, 166 U.S. 110, 125, 17 S.Ct. 510, 516, 41 L.Ed. 937 (1897). ³ If the owner manages his affairs in such a fashion that no profits are lost during repairs, there is no detention loss to be awarded. Brooklyn Eastern District Terminal v. United States, 287 U.S. 170, 174-76, 53 S.Ct. 103, 104, 77 L.Ed. 240 (1932) (dictum); Bolivar County Gravel Co. v. Thomas Marine Co., 585 F.2d 1306, 1308-09 (5th Cir. 1978); The Pocahontas, 109 F.2d at 931 (dictum); Pan-American Petroleum & Transport Co. v. United States, 27 F.2d 684, 685 (2d Cir. 1928); see The Conqueror, 166 U.S. at 127, 17 S.Ct. at 517 ("(S)omething else must be shown than the simple fact that the vessel was laid up for repairs."); The Saginaw, 95 F. 703, 704 (S.D.N.Y.1899) ("The practice in this district has been not to admit claims for the vessel's time while making repairs, if it occasioned no loss of her regular trips, or other expense.").

The difficulty here attaches to losses and costs that are commonly attributable both to the repair of the tort damage and to owner's work. As to such jointly caused detention losses, the owner's entitlement to damages has been held to turn on whether or not the collision damage required immediate repair, taking out of service a vessel which otherwise would have been in service. If the vessel were kept in service following the collision and the repairs were deferred by the owner to the time of the next lay-up, to be done at that time together with owner's work, no detention damages would be allowable for the time commonly attributable to both kinds of repairs. In these circumstances, it is reasoned that the collision did not require the interruption of service; the repairs, being deferable, could be performed during a future period of scheduled interruption of service, without loss of profits to the owner. Skibs A/S Dalfonn v. S/T Alabama, 373 F.2d 101, 104 (2d Cir. 1967) (dictum); Pan-American Petroleum & Transport Co. v. United States, 27 F.2d at 685; see The Pocahontas, 109 F.2d at 931; Clyde S.S. Co. v. City of New York, 20 F.2d 381, 381 (2d Cir. 1927); Commissioners for Executing Office of Lord High Admiral v. Owner of Steamship Chekiang, 1926 A.C. 637, 641 (Viscount Dunedin). ⁴ If on the other hand collision repairs are immediately necessary, the owner may conduct his own repairs at the same time, and is entitled to an award of detention for the period common to both the collision and owner's repairs. Skibs A/S Dalfonn v. S/T Alabama, 373 F.2d at 104 (dictum); Oil Screw Noah's Ark v. Bentley & Felton Corp., 322 F.2d 3, 9 (5th Cir. 1963); Atlantic Refining Co. v. Matson Navigation Co., 253 F.2d 777, 778 (3rd Cir. 1958); Hines v. Sangstad S.S. Co., 266 F. 502, 506-07 (1st Cir. 1920); Simpson's Patent Dry-Dock Co. v. Atlantic & E.S.S. Co., 108 F. 425, 428 (1st Cir.), cert. denied, 183 U.S. 697, 22 S.Ct. 934, 46 L.Ed. 395 (1901).

As to the latter situation, Judge Learned Hand in an often cited dictum explained the proposition as follows:

If the owner of a damaged vessel puts her in dry dock to repair damages done by a collision, and while she is there seizes the opportunity to make other repairs, which do not extend the time consumed in the collision repairs, the tort-feasor may not abate his damages.

Clyde S.S. Co. v. City of New York, 20 F.2d at 381. In The Pocahontas dictum, Judge Swan, citing Clyde S.S....