Todd Erie Basin Dry Docks v. The Penelopi, 255.

• Decision Date: 30 April 1945
• Docket Number: No. 255.,255.
• Parties: TODD ERIE BASIN DRY DOCKS, Inc., v. THE PENELOPI et al.
• Court: U.S. Court of Appeals — Second Circuit

148 F.2d 884 (1945)

TODD ERIE BASIN DRY DOCKS, Inc., v. THE PENELOPI et al.

No. 255.

Circuit Court of Appeals, Second Circuit.

April 30, 1945.

Dow & Symmers, of New York City (Wilbur E. Dow, Jr., Joseph M. Brush, and Sherman V. Petrie, Jr., all of New York City, of counsel), for appellant.

Crowell & Rouse, of New York City (E. Curtis Rouse and George L. Varian, both of New York City, of counsel), for appellee.

Before SWAN, CHASE, and FRANK, Circuit Judges.

SWAN, Circuit Judge.

The original libel in this consolidated cause was filed by a dry dock company, for brevity called Todd, to recover some $23,400 for work performed on the S. S. Penelopi to convert her from a coal to an oil burner. The vessel was delivered at Todd's shipyard on September 2, 1941 and was redelivered to her owner on December 27, 1941. The owner, for brevity called Polar, filed a cross-libel for damages resulting from the wrongful detention of the vessel beyond the date alleged to have been agreed upon for completion of the work. After issues were joined, the parties agreed by stipulation¹ that the amount due Todd should be fixed at $20,500, that the steamer was delayed at the shipyard for an unexplained period of 31 days, and that the cases should be consolidated and a reference had to ascertain the damages, if any, sustained by Polar by reason of such delay. An interlocutory decree was entered in accordance with the stipulation and hearings were had before a commissioner who reported Polar's damages as $25,530 for demurrage and $1,176.50 for expenses of crew during the detention period. Both sides filed exceptions to the report. The final decree, from which Polar has appealed, allowed as damages only the $1,176.50 item, and awarded half costs to each party.

Before passing to the merits, we turn to the appellee's contention that the appeal must be dismissed because the final decree recites that it was entered on motion of Polar's proctors. This is a complete misapplication of the rule that a party may not appeal from a judgment rendered by consent, as this court explained in The Ansaldo San Girgio I, 2 Cir., 73 F.2d 40, 41, aff'd sub nom. The Ansaldo San Giorgio I v. Rheinstrom Brothers Co., 294 U.S. 494, 55 S.Ct. 483, 79 L.Ed. 1016 without mention of this point. It seems strange that this obviously fallacious contention should be again advanced. The appeal is properly here.

The vessel was redelivered to Polar at 5 P. M. on Saturday, December 27, 1941. By charter dated January 10, 1942, she was chartered to Moore-McCormack Lines, Inc., for a voyage to South America and return "taking approximately three months." Delivery to the charterer was made on January 13, 1942 and charter hire was paid at the rate of $4.50 per deadweight ton per calendar month from the time of delivery up to and including midnight of January 19, 1942, and at $3.25 thereafter. These rates were the ceiling rates specified by the U. S. Maritime Commission, which then had the authority now vested in the War Shipping Administration. The deadweight tonnage stated in the charter was 10,660 tons. Based on the voyage account covering the charter voyage the commissioner determined the average daily net earnings and in accordance therewith computed damages for demurrage.

The unexplained detention period was from 5 P. M. on November 26 to 5 P. M. on December 27, 1941. It is undisputed that during this period there was a strong demand for tonnage. Upon the reference Todd contended first, that the vessel could not have been chartered during the detention period because of (a) alleged "blacklisting" by the British authorities, (b) lack of classification certificate, and (c) lack of ship warrant and certificate of insurance, and, second, that she would not have been chartered because of Polar's reluctance to accept the ceiling rates of charter hire. The commissioner dealt with each of these contentions in detail and found that the vessel could and would have been chartered during the detention period. He did not, however, allow demurrage for the full 31 days of the detention but fixed the period for damages at 23 days because of Polar's delay, after redelivery, in cleaning the vessel so as to make her ready for chartering. The district judge allowed no demurrage on the ground that the proof fails to show that Polar was willing to accept any charter offer during the detention period.

In so far as the court's decision rests on the statement in the opinion that it was incumbent on Polar to prove "that it was willing to charter the vessel to some known agent for a specified voyage at an agreed rate," we think it imposes a rule of proof more exacting than the controlling authorities require. In The Conqueror, 166 U.S. 110, at 125, 17 S.Ct. 510, 516, 41 L.Ed. 937, Mr. Justice Brown stated that demurrage "will only be allowed when profits have actually been, or may be reasonably supposed² to have been, lost, and the amount of such profits is proven with reasonable certainty." In The North Star, 2 Cir., 151 F. 168, 175 Judge Wallace said that the inquiry is whether earnings would have been made by the use of the vessel, and he explained that it suffices if the owner "shows a state of facts from which a court or jury can find that there was an opportunity for him to do so, and that he would probably have availed himself of it."²

In so far as the decision on appeal rests on a reversal of the commissioner's findings that the vessel could and would have been chartered, it can be approved only if those findings are clearly erroneous. The North Star, supra, 151 F. 168 at page 177; Western Transit Co. v. Davidson S. S. Co., 6 Cir., 212 F. 696, 701, certiorari denied 234 U.S. 764, 34 S.Ct. 998, 58 L.Ed. 1582; P. Sanford Ross, Inc. v. Public Service Corporation, 3 Cir., 42 F.2d 79, 80; Crowell v. Benson, 285 U.S. 22, 51, 52 S.Ct. 285, 76 L.Ed. 598, note 14.

We believe that there is substantial evidence to support the findings of fact made by the commissioner as to the ability and willingness of Polar to charter its vessel. He found that the fact that the Penelopi during the period of its repair did not obtain a...