New Haven Steam-Boat v. the Mayor

• Decision Date: 03 October 1888
• Citation: 36 F. 716
• Parties: NEW HAVEN STEAM-BOAT CO. v. THE MAYOR, etc. [1]
• Court: U.S. District Court — Southern District of New York

36 F. 716

NEW HAVEN STEAM-BOAT CO. v. THE MAYOR, etc. ^[1]

United States District Court, S.D. New York.

October 3, 1888

Wilcox Adams & Macklin, for libelant.

Joseph H. Mosher, for respondent.

BROWN J.

1. Survey and Superintendence. In making up the damages by collision, the cost of surveying the injured vessel, and of superintending the repairs, is allowed when the survey and superintendence are reasonably necessary to the economical prosecution of the work. To that extent such charges are incurred in the interest of all concerned. If unnecessary the charge is not allowed. The Golden Rule, 20 F. 198. From the nature of the injuries to the Continental, it is plain that a preliminary examination and survey were necessary before commencing those repairs, and a proper charge therefor should be allowed. Sawyer v. Oakman, 7 Blatchf. 290 306; The City of Chester, 34 F. 430. This survey, however did not include special details of the work to be done. The repairs were made by day's work. The libelant has a superintendent who attended to the work daily in its behalf, and its insurers sent other men, who also superintended the work in their interest, and acted in conjunction with the libelant's superintendent. The libelant paid the charges of the insurer's superintendents. The respondent objects to that item, on the ground that they acted in the interest of the insurers, and for their satisfaction only, and were not necessary to the work. It is often to the interest of the ship-owner, in repairing collision damages, to conjoin with it other work, or to do the repairs in some other mode than in the manner most economical, having reference to the collision injury alone; and in many cases it is a matter of skilled judgment, not easy to determine, just how far the work should extend, or in what way it should be done, to make good the injury, and no more. Constant experience in the adjustment of collision damages shows the practical difficulties that often arise in these ways. The interest of the ship-owner is often opposed to that of his insurer, and of the wrong-doer, who is bound to indemnify both; while the interests of the two latter, in securing an economical repair of the specific injuries, and no more, are identical. An independent superintendence in their interest will often save many times its cost. No prudent person, knowing that he must pay the damages, would fail to take such a precaution, if in his power. The insurers are in a position to enforce this precaution, and to exact payment for the service by the ship-owner. This service is, as a rule, so beneficial, and often practically so necessary, to economy in repairs, that when paid for by the ship-owner, as in this case, there is no equity in disallowing it. It should be treated as an expense practically necessary to the most economical repair of the vessel, of which the wrong-doer has enjoyed the full benefit in the diminished cost of the repairs. There is no evidence, however, to show that more than one survey or one independent superintendent was necessary. Therefore I allow the full charge for the one, and disallow the charge for the other. The Venus, 17 Red.Rep. 925; The Olive Baker, (July 10, 1888,) MS. ^[2]

2. Demurrage. The Continental being disabled by collision from continuing her trips, the Elm City, belonging to the same company, was substituted in her place. The latter was a 'sister-boat' to the Continental, of the same size, but much older, slower, and of less value. She was kept by the libelants as a spare boat, for the purpose, in part, as appears from the evidence, of continuing the trips of the line with regularity, in case of accident to one of the regular boats, or during their repair. She was also occasionally let out for excursions, and upon special charters. Demurrage at $250 per day is allowed by the commissioner for 15 days, while the Continental was undergoing repairs. The respondent contends that this claim should have been wholly disallowed, on the ground that the running of the Elm City in the place of the Continental in reality in the place of the Continental in reality cost the owners nothing, and that they consequently sustained no actual damage in this respect. The Clarence, 3 W.Rob. 283, 286; The Potomac, 105 U.S. 630, 632. The principles laid down in the cases of The Cayuga, 7 Blatchf. 385, 14 Wall. 270, and The Favorita, 8 Blatchf. 539, 18 Wall. 603, although these cases differ in some particulars from the present case, are, it seems to me, controlling. The owners were entitled to procure another boat to take the place of the Continental, while she was disabled through the collision. It is immaterial to the respondents whether the substitute was hired from other persons at market rates, or supplied by the libelants themselves. If the latter chose, as a matter of policy, to be at the expense of maintaining a 'spare boat' for emergencies, the liability to accidents like the present was one of the causes and inducements to this outlay, as the evidence of the superintendent shows. The are entitled, therefore, to charge for the use of their own boat at the market value of its use, for the time being, precisely as if they had hired her from other owners.

The evidence before the commissioner was principally of estimates as to the value of the Continental, varying from $300 to $500 per day. As the evidence showed that the Elm City fully performed the Continental's work, and that there was no loss in the libelant's business, the market value of the Elm City per day, as the vessel that made good the loss of the use of the Continental, would be more...