Skou v. U.S., 74--3366

• Decision Date: 23 January 1976
• Docket Number: No. 74--3366,74--3366
• Citation: 526 F.2d 293
• Parties: Ove SKOU, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 293

526 F.2d 293

Ove SKOU, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 74--3366.

United States Court of Appeals, Fifth Circuit.

Jan. 23, 1976.

Nathaniel G. W. Pieper, Tampa, Fla., for plaintiff-appellant.

John L. Briggs, U.S. Atty., Jacksonville, Fla., Oscar Blasingame, Asst. U.S. Atty., Tampa, Fla., Alfred H. O. Boudreau, Jr., Admiralty & Shipping Section, Dept. of Justice, Morton Hollander, Ronald R. Glancz, Dept. of Justice, Civil Div., App. Section, Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before TUTTLE, THORNBERRY and CLARK, Circuit Judges:

TUTTLE, Circuit Judge:

Ove Skou, owner of the cargo liner MADS SKOU, appeals from that part of the judgment of the trial court which denied it damages for the loss of the vessel's use for a period of 10 and 5/12 days occasioned by having been struck and holed by an assisting Army tug. The trial court allowed damages by way of compensation for all of the repairs rendered necessary by the collision.

On May 10, 1969, while the plaintiff's vessel was maneuvering away from a dock it was struck and damaged by the tug. As a result, she put into Tampa, Florida, the nearest available port capable of rendering repairs, and in this fashion her voyage was interrupted for 10 and 5/12 days. In the original action brought by the plaintiffs against the United States, the trial court awarded the ship owner a judgment which included reimbursement in full for the cost of repairs, for costs incidental to completing repairs and for the gross daily charter hire being paid to the ship owner by her charterer, which, by terms of the charter, was suspended while the ship was in repair. The United States appealed only as to the last item. On appeal, this Court held that the burden was on the owner to show actual damages resulting from the 10 and 5/12 days loss of the use of the vessel and that the record made at the time of the trial showed only the loss of use and failed to disclose elements that would constitute actual damage. United States of America v. Ove Skou, 478 F.2d 343 (5th Cir. 1973). This Court remanded the case to the trial court to afford the plaintiff an opportunity to show that it, in fact, sustained a financial loss as a result of the delay. Upon the second trial, the trial court held that the plaintiff failed to carry the burden. Now, the formerly successful plaintiff appeals from that judgment. The owner also appeals from the failure of the trial court to grant interest on the judgment for the actual damages not contested by the United States from the date of the original judgment, rather than from the current judgment which, as to these items, is for the same amount.

In our previous opinion, we indicated the nature of the proof required to establish the claim asserted by the plaintiff. We said:

'The dearth of evidence here prevents our concluding whether, during the market of May and June 1969, vessels of the Skou's tonnage and design were customarily under charter every day of the year, whether there were lengthy inactive periods between charters or whether actual experience was somewhere in between. The ship in question arrived at its designation ten days late and was not rechartered until fourteen days later, or 24 days from its original scheduled arrival date. There is no evidence that a subsequent charter commitment was breached, or that the shipowner, knowing the approximate length of the repair period, made any attempt to arrange for a subsequent charter. . . .' 478 F.2d 343, 346.

Further explaining the issue this Court said:

'The burden of proof on the shipowner is not excessive. He need prove only that profits 'have actually been or may be reasonably supposed to have been lost.' The Conqueror, 166 U.S. (110) at 125, 17 S.Ct. (510) at 516 (, 41 L.Ed. 937.) Counsel for the plaintiff admitted on oral argument that he could have introduced expert evidence of the ship's marketability. We remand this case to the district court to give the plaintiff an opportunity to introduce evidence of actual loss, and we leave to the district court the factual determination whether such evidence is sufficient to satisfy the shipowner's burden of proof. Cf. Brooklyn Eastern District Terminal v. United States of America, 1932, 287 U.S. 170, 53 S.Ct. 103, 77 L.Ed. 240.' 478 F.2d at 347.

It is clear, of course, as the Government contends that findings of fact by the trial court in Admiralty cases are not subject to reversal unless determined on appeal to be 'clearly erroneous.' McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20.

As stated by this Court in Galena Oaks Corp. v. Scofield, 218 F.2d 217 (5th Cir. 1954), and cited many times since:

'Insofar, however, as the so-called 'ultimate fact' is simply the result reached by processes of legal reasoning from, or the interpretation of the legal significance of, the evidentiary facts, it is 'subject to review free of the restraining impact of the so-called 'clearly erroneous' rule." 218 F.2d at p. 219, citing Lehmann v. Acheson, 3rd Cir., 206 F.2d 592, 594.

All of the evidentiary facts relied upon by the trial court in concluding that the evidence showed that the plaintiff was not entitled to recover were supplied by the plaintiff and, of course, are binding against it. We accept these evidentiary facts as true.

In order adequately to assess the interpretation of the historical facts by the trial court and in order to indicate the reason for our disagreement with its ultimate judgment, we quote the trial court's 'findings of fact' in full:

'1. Repairs completed at Tampa, the MADS SKOU resumed her voyage on May 21, 1969. On May 29, while the MADS SKOU was enroute to Glasgow (via Dublin, Ellismere and Liverpool) Columbus Line, agent for Hamburg Sud, inquired by telex message whether plaintiff could furnish a 'vessel in time charter, delivery USNH' (that is to say, at a port in the United States north of Hatteras) 'last half June . . .' (Emphasis in original). Subsequently, on June 5, 1969, Hamburg Sud and plaintiff executed a time charter providing for delivery of the vessel to Hamburg Sud 'on passing Belle Isle or Cape Race Owner's option' between the dates of June 20 and June 29, 1969. The vessel was in fact delivered off Cape Race on June 27, 1969, at 1:45 p.m. This was within the stipulated time of the contract and certainly within the 'last half June.'

2. Now the significance of this is that the MADS SKOU only had three charter party opportunities available had no collision with the Army tug occurred. This was the charter party which was in fact signed, one for the MARIE SKOU or substitute and one for the INGER SKOU or substitute.

3. The charter party for the MARIE SKOU for which the MADS SKOU could have been substituted was dated June 5, the same date as the charter party with Hamburg Sud which was performed by the MADS SKOU. The MARIE SKOU charter party (for lack of a better name) provided for delivery of a vessel at Skaw, Denmark, two days sailing time from Glasgow, where the MADS SKOU was redelivered by its charterer, Harrison Lines, at 10:00 p.m. on June 19. Delivery under the MARIE SKOU charter party was permitted in terms between June 21 and June 29; hence the MADS SKOU could easily have performed this charter. This is admitted by plaintiff's vice-president, Gundel, who also admitted that the MADS SKOU could have performed the INGER SKOU charter party scheduled to commence at Jacksonville, Florida, between June 25 and July 5. Now, the MADS SKOU was chosen instead of the other ships to perform the Hamburg Sud contract 'because of her recent dry docking' i.e. on June 20--22, for bottom cleaning and painting, after her redelivery to plaintiff by Harrison at Glasgow. But the important point is that plaintiff's own evidence shows that the MADS SKOU had only three charter opportunities after the collision voyage; she was employed on the one her owners wanted her to be, within the terms of the charter party and at the time when her charterer wanted her. Those elementary considerations should result in the dismissal of plaintiff's claim for lost charter hire. (footnote omitted).'

The difficulty with the trial court's assessment of the evidence is that it focused completely on the admitted fact that MADS SKOU was not prevented from performing any subsequent charter party available to it because of the 10 and 5/12 days delay due to the accident. The whole thrust of the plaintiff's case is that because of the delay while the ship was under repairs it was off the market for future charterers and the time at which it could commence its next charter was delayed by that same number of days.

While the charter party signed on June 5 gave a 'lay day' or starting time of June 20 and ran until June 29, ¹ the evidence discloses that as indicated by the above findings of fact, Hamburg Sud, the party negotiating for the charter and who, in fact, actually signed it on June 5, originally wished to have the vessel available by June 15 but, in the negotiations, as testified to by deposition by the operating manager of OVE SKOU, the owner knew that the vessel would not be available until after June 20. The owner, after testifying that he knew the vessel would be delayed because of the collision was asked: 'What reason, if any, is there that the charter party provides that the time is not to commence before June 20, 1969?' He answered: 'Because that was the estimated readiness of the ship at the time of negotiations and fixture.'

Thus, it appears that if the MADS SKOU had not been delayed for repairs and had been redelivered to its owners on June 9 or 10, as testified to by the witness, and had then spent three days in dry dock for 'normal, annual cleaning and painting,' ² it would have been available to the inquiring prospective charterer by June 13 ³ and, had the lay day been set at June 15, as...