The North Star

• Decision Date: 22 August 1905
• Citation: 140 F. 263
• Parties: THE NORTH STAR.
• Court: U.S. District Court — Western District of New York

140 F. 263

THE NORTH STAR.

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

August 22, 1905

Goulder Holding & Masten and George Clinton, for libelant.

Shaw Warren, Cady & Oakes and Joseph G. Dudley, for respondent.

HAZEL District Judge.

This action came before me upon exceptions to the commissioner's report of the amount of damages sustained by the Bessemer Steamship Company, by reason of the collision on November 28, 1899, in St. Mary's river, of its steamship Sir William Siemens and her consort, the barge Alexander Holley, with the steamboat North Star. The latter vessel, by a prior decree of this court, was alone held under charter to carry iron ore to Conneaut, Ohio. The contract for the year 1899 terminated on December 1st, and the interrupted trip was the last for that season under the same. The libelant excepts to the report of the commissioner on the single ground that he has rejected a claim for damages for the loss of use of the steamer and consort. The report states, among other things, that, had the collision not occurred, libelant's vessels would have arrived at their port of destination, November 30th, at about 2 o'clock p.m., and could have returned to Duluth, Minn., taken on a cargo of grain, and returned within the period of navigation fixed by the underwriters. It was conceded on the hearing that, if the voyage down had not been obstructed libelant's vessels could have made another trip before the close of navigation on the Great Lakes, and earned 3 3/4 or 4 cents per bushel carrying grain from Duluth to Buffalo N.Y.

The rule of law governing the recovery for detention and loss of use of a vessel on account of the wrongful act of another is found in The Conqueror, 166 U.S. 125, 17 Sup.Ct. 515, 41 L.Ed. 937. It is there stated:

'That the loss of profits or of the use of a vessel, pending repairs or other detention, arising from a collision or other maritime tort, and commonly spoken of as demurrage, is a proper element of damage, is too well settled both in England and America to be open to question. It is equally well settled, however, that demurrage will only be allowed when profits have actually been, or may be reasonably supposed to have been, lost, and the amount of such profits is proven with reasonable certainty.'

It will be observed that damages such as are here sought are recoverable only when the loss of profits is proved with reasonable certainty. The commissioner refused to make any allowance for the loss of use during the vessels' delay, because the evidence did not show that charters were offered the libelant (also the owner of other vessels) for the specific vessels detained by the collision. The undisputed evidence, however, shows that the Siemens belonged to a class of vessels for which there was a demand, and that grain cargoes were available to vessels of her class after November 28, 1899; that libelant was offered charters from Duluth to Buffalo at the transportation rate of five cents per bushel; that two charters were accepted for certain of libelant's vessels, and additional charters refused, owing to the condition of the Siemens. The witness Shaw, cashier for libelant, though but 27 years old, had charge of this branch of the business during the illness of his superior officer. His testimony, as stated, is not rebutted, and no sufficient reason appears why it should be discredited. The object and purpose of the law is to compensate and indemnify the owner for what he has actually lost on account of the collision. Williamson v. Barrett, 13 How. 101, 14 L.Ed. 68; The Potomac, 105 U.S. 630, 26 L.Ed. 1194; The Lagonda (D.C.) 44 F. 367; The Margaret J. Sanford (C.C.) 37 F. 148. In the last-mentioned case, Judge Wallace said:

'When a vessel is employed at the time of the collision, or when it appears that she would have been beneficially employed during the period of her detention, it is entirely clear that actual loss has attended the interruption of her engagements.'

See, also, The Cayuga, 2 Ben. 125, Fed. Cas. No. 2,535.

In Williamson v. Barrett, supra, the Supreme Court says:

'If there is no demand for the employment, and, of course, no hire to be obtained, no compensation for the detention during the repairs will be allowed, as no loss would be sustained. But, if it can be shown that the vessel might have

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