Brooklyn Eastern Dist. Terminal v. United States, 72.
| Decision Date | 11 January 1932 |
| Docket Number | No. 72.,72. |
| Citation | 54 F.2d 978 |
| Parties | BROOKLYN EASTERN DIST. TERMINAL v. UNITED STATES. UNITED STATES v. BROOKLYN EASTERN DIST. TERMINAL. |
| Court | U.S. Court of Appeals — Second Circuit |
George Z. Medalie, U. S. Atty., of New York City (Charles E. Wythe, Sp. Asst. U. S. Atty., of New York City, of counsel), for the United States.
Bigham, Englar, Jones & Houston, of New York City (Leonard J. Matteson and Willard M. L. Robinson, both of New York City, of counsel), for appellee.
Before MANTON, L. HAND, and CHASE, Circuit Judges.
The only questions raised by this appeal are the amount of damages suffered by the libelant. Its tug, the Integrity, was injured by the collision, and both parties were held jointly liable. The commissioner to whom the computation of damages was referred made an award of six items, of which three are here in dispute. These were the "demurrage," which was fixed at $11,700; the settlement of a salvage claim at $1,250; the settlement of a death claim at $9,000. It will be more convenient to state the facts as to each item seriatim.
The libellant was engaged in the towage of car floats in New York Harbor and for this purpose kept three tugs in commission, of which the Integrity was one. Her injuries required her withdrawal and the allowance was for the reasonable hire of a substitute during the time she was in dry dock. The respondent does not object to the amount fixed as reasonable hire for the supposititious substitute, and, though there was some question whether the time during which the tug was kept out of commission was not unreasonably prolonged, in the view we take it is unnecessary to pass upon that question. The libellant did not in fact hire another tug to take the Integrity's place while she was away, but did all its business by working the other two overtime. The theory, which was successful before the commissioner and in the District Court, was that since the two were thus used in place of the Integrity, the situation fell within the "spare boat" cases, and that the reasonable hire of a tug of similar capacity was the proper measure. The Cayuga, 7 Blatchf. 385, Fed. Cas. No. 2,537, affirmed 14 Wall. 270, 20 L. Ed. 828; The Favorita, 18 Wall. 598, 21 L. Ed. 856; The Providence, 98 F. 133 (C. C. A. 1); New Haven Steam-Boat Co. v. The Mayor (D. C.) 36 F. 716; The Mediana, 1900 A. C. 113. However, even "spare" boats will not serve, if it be not shown that there was work for that which was injured Newtown Creek Towing Co. v. New York, 23 F.(2d) 486 (C. C. A. 2); The Priscilla (D. C.) 27 F.(2d) 921; and in no event do we think that the doctrine applies when the time lost is made up by boats which are not maintained as "spares." The cases relied upon proceed on the notion that the expense incurred to meet just the situation which arises, is properly attributable to the accident, that being one of the contingencies that occasion the outlay. In the case at bar the other boats were not kept for that purpose; as to them the libellant was at exactly the same charges as it would have been had the Integrity remained in commission, except for any extra expenses of overtime which were not proved. In particular, the argument is that since each tug, as ordinarily operated, was free for part of the twenty-four hours, the "spare time" was the equivalent of a "spare tug," maintained only for a lay-off. Perhaps this might be sound, if it appeared that three tugs were kept in commission instead of two for that reason; but it does not. So far as the record shows, there was business enough for all, operated for as much of each day as libellant thought reasonable. Certainly we have no ground for saying that it was to constitute a reserve that they were not operated overtime; nothing else will serve. We think that the case falls within The Conqueror, 166 U. S. 110, 17 S. Ct. 510, 41 L. Ed. 937, and The Glendola, 47 F.(2d) 206 (C. C. A. 2). This item we disallow.
The collision broke the Integrity adrift from a...
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Sinclair Refining Co. v. Sun Oil Co.
...days that the tug was withdrawn for repairs. On appeal the Circuit Court of Appeals for the Second Circuit excluded that item, 1932, 54 F.2d 978, and this determination was affirmed by the Supreme While the Brooklyn Eastern District Terminal case involved a vessel for hire rather than one t......