Brooklyn Eastern District Terminal v. United States

• Decision Date: 14 November 1932
• Docket Number: No. 39,39
• Parties: BROOKLYN EASTERN DISTRICT TERMINAL v. UNITED STATES
• Court: U.S. Supreme Court

287 U.S. 170

53 S.Ct. 103

77 L.Ed. 240

BROOKLYN EASTERN DISTRICT TERMINAL

v UNITED STATES.

No. 39.

Argued Oct. 21, 1932.

Decided Nov. 14, 1932.

Messrs. Leonard J. Matteson and Oscar R. Houston, both of New York City, for petitioner.

The Attorney General and Mr. Thomas D.Thacher, Sol. Gen., of Washington, D.C., for the United States.

[Argument of Counsel from page 171 intentionally omitted] Mr. Justice CARDOZO delivered the opinion of the Court.

On September 30, 1920, the dredge Raritan, belonging to the United States, collided in New York Harbor with the steam tug Integrity, belonging to the petitioner. A libel in admiralty to recover the damages to the tug was filed by the petitioner in conformity with an act of Congress whereby the United States consented to be sued. Act of February 16, 1925, c. 241, 43 Stat. 1566. A cross-libel for damages to the dredge was filed by the government. The trial court held both vessels at fault, and determined that the damages to each should be equally apportioned between the owners. A Special Commissioner was appointed to ascertain the damages and report.

The controversy hinges upon an item of demurrage. As to the repair bills ($26,114.57 for the Integrity and $2,230 for the Raritan), as well as some other items, the parties are now at one. The conflict between them, once waged along a wider front, has narrowed to a single point. The District Court, confirming the Commissioner's report, allowed demurrage to the petitioner at the rate of $150 a day, the market hire of another tug, during the seventy-eight days when the Integrity was withdrawn for repairs. This item ($11,700) the Circuit Court of Appeals excluded. 54 F.(2d) 978. A writ of certiorari has brought the case here.

The petitioner was in the business of towing car floats for railroads between points in New York harbor. It did not use its boats for hire generally. Its business was sufficient to occupy three tugs during regular working hours in the transfer of railroad cars from one point to another. When the Integrity was laid up, the petitioner did not hire an extra tug as a substitute for the one disabled. Instead, it used its two other tugs overtime, and thus kept down the cost while doing business as before. The same crews were employed; but if extra wages were paid, the amount has not been proved. Extra wear and tear there may have been; but there is nothing in the record to indicate how much. Indeed, the witness for the petitioner frankly stated that the loss, if any, from that cause was too uncertain to be measured. The award for demurrage allowed by the District Court and disallowed by the Court of Appeals was not made upon the basis of depreciation of the boats in use. It is measured by expenses that in fact never were incurred, but that might have been incurred and charged to the respondent if the necessities of the business had been something other than they were.

Our decision may not overleap the limitations of the record. To dispose of the case before us we do not need to hold that through the use of the other vessels the pos- sibility of all demurrage has been excluded by an inexorable rule of law. Other courts have held in situations not dissimilar that demurrage may be measured by the interest on the capital value tied up in the disabled boat during the term of disability and thus unfruitfully employed. The Susquehanna, (1926) A.C. 655, 363, 664. Cf. The Greta Holme, (1897) A.C. 596. To approve or disapprove that measure is unnecessary here, for the record does not contain the figures that would enable us to apply it. Even now the petitioner is not seeking for a judgment upon that basis, nor indeed upon any other basis than the one adopted at the trial. The question narrows itself to this, whether the full-time hire of an extra boat must be charged to the respondent as damage flowing from the collision when there was no need of such a boat to keep the business going, and none in fact was used or paid for. Is an award upon that basis either erroneous in law or extravagant in fact?

Erroneous and extravagant we think it must be held to be. The Conqueror, 166 U.S. 110, 125, 134, 17 S.Ct. 510, 41 L.Ed. 937; The Susquehanna, supra; cf. The North Star (C.C.A.) 151 F. 168; The Wolsum (C.C.A.) 14 F.(2d) 371); Cuyamel Fruit Co. v. Nedland (C.C.A.) 19 F.(2d) 489; Newtown Creek Towing Co. v. City of New York (C.C.A.) 23 F.(2d) 486; The Glendola (C.C.A.) 47 F.(2d) 206. The disability of a vessel will not sustain demurrage at the rate of the value of her hire unless an award at such a rate can be seen to be reasonable when the disability is viewed in the setting of the circumstances. The Conqueror, supra. Only when thus enlightened can we choose the yardstick most nicely adjusted to be a measure of reparation, in some instances, no doubt, the hire of another vessel, in other instances, it may be, a return upon the idle capital (The Susquehanna, supra), in others something else. Only then indeed can we know whether the interference with profit or enjoyment is to be ranked as substance or as shadow. The vessel may have been employed in a business of such a nature that for the avoidance of loss there is need of the employment of a substitute. In such circumstances the fair value of the hire may be an element of damage, and this whether the substitute is actually procured or not. Cf. The Lagonda (D.C.) 44 F. 367; The Mediana, (1900) A.C. 113; Perkins v. Brown, 132 Tenn. 294, 177 S.W. 1158, L.R.A. 1915F, 723, Ann. Cas. 1917A, 124; Cook v. Packard Motor Car Co., 88 Conn. 590, 92 A. 413, L.R.A. 1915C, 319. The vessel may be a yacht, employed for pleasure and not for business. Even then, in the judgment of many courts, the value of the use may be considered by the triers of the facts in fixing the recovery if there has been a substantial impairment of that enjoyment for which such vessels are maintained. The Lagonda, supra; Cook v. Packard Motor Car Co., supra; Banta v. Stamford Motor Co., 89 Conn. 51, 56, 92 A. 665; Perkins v. Brown, supra; Hunt Co. v. Boston Elevated R. Co., 199 Mass. 220, 235, 236, 85 N.E. 446; The Astrakhan, (1910) P. 172, 181. There are statements in The Conqueror (page 133 of 166 U.S., 17 S.Ct. 519) that may be in conflict with that view, but they were not essential to the judgment (page 134 of 166 U.S., 17 S.Ct. 519), and in the light of later decisions as to the loss of pleasure vehicles are unquestionably in opposition to a strong current of authority. See cases, supra. The owner of the Conqueror would not have let his yacht to any one if there had been no occasion to repair her, nor during the season that she was out of service would he have used her for himself. The Conqueror, 166 U.S. at page 134, 17 S.Ct. 510, 41 L.Ed. 937. There was neither interference with profit nor substantial disturbance of enjoyment. The court did not hold that even then there could be no recovery whatever. Cf. Cook v. Packard Motor Car Co., supra, at page 596 of 88 Conn., 92 A. 413. It held that recovery was excessive when based on the returns of an imaginary letting. We are to have regard in every case to the reasonable probabilities of time and place and circumstance. Demurrage on the basis of the cost of a substitute, actual or supposititious, may be no more than fair indemnity when gains have been lost or enjoyment seriously disturbed. Demurrage on a like basis may be so extravagant as to outrun the bounds of reason when loss of profit has been...