NEW HAVEN STEAM-BOAT CO. V.1HE MAYOR.
717
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 superintfmdence in their interest will often save many times its cost. No prudent person, knowing that he must pay The the damages, would fail to take such a precaution, if in his 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 as in this cade, there is no equity in disallowing it. for by the lt 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, how. ever, to show that more than one surveyor one independent sl\perin,.; tendent was necessary. Therefore I allow the full charge for the one, apq disallow the charge for the other. The Vep.U8, 17 Fed. Rep., 92,5; , Olive Baker, (July 10, 1888,) MS. l 2. Demurrage. The Continental being disabled 'by collision from tinuing her trips, the Elm City, belonging to the same company, wail stituted in her place. The latter was a "l'1i.ster-b()at" to the Contiqenl{al, of the same size, but much older, slowe.r, and of less value. She wafjl kept by the libelants as a spare boat, for.the purpose, in part, as appears of continuing the trips of the line with regularity, in from the case of accident to one of the. regular. boats, or d\Iring their She was also occasionally let out for excursions., and upon special charters, 1)emurrageat $250 per day is allowed by tbecommissioner for 15 days, while the Continental was undergoing repairs. The respondent contends 'WILLIAMS et al. v. TIiE OLIVE BAKER. ,(District Court, S. D. New York. July 10,1888.)
Owen &: Gray, for libelants. Cwrpenter &: M08her, for claimants. BROWN, J. The fact that after the decision holding the libetant's vessel in fault, as well as the claimant's, the damages claimed on the reference before the commissioner are from two to three times the amount stated in the libel, naturally raises snspteion as to the good faith of some of the items presented on the reference. This suspicion is.t«;l some extent confirmed by the failure of any specific proo'fto connect the items with the injury, or to show just how they were necessarY,or e;ven used. I am not satist!edi under these circumstances, with mere general statements that they wereall,tJ,e.cessary. There is,lndeed, no such proof of fraud as existed inthe case of The Sampson, 4, Blatchf.28, 30; bllt more satisfactory proof ought to be furnisnlld to admit items .that do not seem. necessary. I deduct $71.31 in .addition to that disallowed by tl1e· comr missioner; $5 saved'in towage; $15 for survey, since no use was made of itin doi:tJ:gthe repairs, (Sawyer v. Qakham,7 290·. 306 ;)and· allow IS days' de:murrag6j :at tM rate of $30 per day only; which. for a continuous period, without expense to the owner is in reality a liberal allowance for the "use" of the vessel.alone.' I greatly doubt'that. the vessel eVllll that. The services rendered to thel;lchooner aster were more thpu were necessary for her safety, so far as the evidence shows. they were an expense reasonably incurred in consequence· of the· collision, then' they tl!tould com.e jp. with tl1e other damages, and ..lytl.iyided. Tl\e refere.e'lil. ruli.n.g. .. is sustained on this point. The result,is that the amount· reported must be reduced $211.6.'5,leaving·$l,151l.52 due to the With iiltel'esHromJune 20,·1688, andWitll one-half tlu;J ·. Thec}aiIlla;nt's!lxcellgoPs .. .. . ..; "._.:'
1'18
FEDERAL REPORTER.
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 cost the oWners nothing, and that they consequently sustained no actual damage in this respect. The (Jla?'ence, 3 W. Rob. 283, 286; The Potomac, 105 U. S. 630, 632. 1.'he 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, controlliug. The owners were entitled to procure another boat to take the place of the Continental, while she was diiolabled 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. They 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 exactly the measure of the libelant's actual and legal damage. The Cayuga, 7 Blatchf. 390; The Rhode Island, 2 Blatchf. 113, 115. The testimony on the libelant's part, as to the value of the Elm City, makes it $250 per day; the additional $25 ppoken of by the witnesses having reference, as I understand, to the extra premium of insurance beyond New Haven, and therefore not affecting thid case, The respondent contends, however, that only $200 per duy should in any event be allowed. This was the amount stated in the sworn claim presented to the comptroller, in accordance with the state statute, and verified by the libelant's superintendent. It was ulso the amount stated under oath by the libelant's when personally examined before the comptroller in reference to the claim made; and only $200 is claimed in the libel, where, under the verification of the treasurer, that sum is again stated to be "a reasonahle charge for demurrage." In the proceedings before the commissioner, after the decision of the cause, notice was given that application would be made to amend the libel by increasing the claim for demurrage to $300 per day. It is suggested that the amount of demurrage specified'in the libel, and in the previous claims, was a pro forma statement only. I cannot see any reasonable ground for that contention. In the statements made to the comptroller the amount of the claim was the most ma.terial part of it. Amendments to the pleadings are, doubtless, to be allowed liberally, when elTorshave been made inadvertently I as sometimes necess!,-l'ilyhappens when the pleadings have been drawn under imperfect knowledge of the facts, and wht::n no special prejudice from
NEW
STEAM-BOAT CO. V. THE MAYOR.
to the libelant's officers than to any other person. They had perfect knowledge of all the facts before the claim WIliS presented. The state-
the amendment would arise to the opposite party. In the present case the value of the use of the Elm City in October, 1886, was better known
ments of it at $200 per day, made',three times under oath, are the best and there evidence that this sum was fixed upon with can be no doubt that, up to the decision of the cause, $200 a day was regarded by the libplants as a fair compensation for their loss by the detention of the Continental. Such statements of the libelants are not only competent legal evidence, as against themselves, but of persuasive force. I do not think it would be desirable in practice, or conducive to the due administration of justice, to permit, under such circumstances, an amendment of the libel claiming increased damages first applied for after an apportionment of the damages had been ordered; nor does the subsequent testimony, without further explanation than has been given, seem to me likely to furnish so fair a determination of the Ii belant's actual damage as their original statement of it, three times deliberately made under oath,' I must deny the amendment applied for, and allow only ,the original amount claimed for demurrage, with interest. 3. Wagea of Crew. I think the proofs sufficiently show payment of $270.33 for wages of the crew of the Continental while she was repairing. A part of tpe crew left, or were discharged. There is no clear evidence whether the rest who were paid were or Were not the 'same seamen who ran on the Elm City when she took the Continental's place. If they were the same, then this charge cannot be allowed, since no extra wages . were paid. It seems scarcely probable that after the Elm City ceased running, before this collision, and while she was kept as a "spare boat," .unemployed, she should have had a crew kept idle and under pay. Naturally the Continental's crew. or so many of them as were necessary, would have been transferred to the Elm City. . The wages of the Continental's men who could not be transferred, and who were actually and -necessarily kept on the Continental, and under pay, during her repair, if there were any such, would be a proper item of damage. The libelant may take further evidence on this point, if desired, in case the facts are not agreed on; otherwise I cannot allow this item, through want of evidence of any such extra expense. The other exceptions are overruled.
720
THE OSWEGO. DEYO
et rd. ·v. Tn
OSWEGO
et 01,.
(Oircuit Court, 8. lJ. New. York. October 111,1888.) COLLISION-EvIDENCE-SUFFICIENCY.
A hole was stove in the side of libelants' canal-boat, when she was laid along-side of the bulkhead. East river. The libelants, without offering direct evidence, contended that the hole was caused by a blow from the Oswego while backing in, by a stroke from her fenders while both boats were lying along-side. Several other. theories were within the possibilities. Three witnesses testified with great positiveness that tbe Oswego did not touch the .canal-boat, .nor even come near· enough to her to hdmit of using the rope feuder which one witness had in his hand. Held, that the finding of the district court would not be disturbed, and the libel should be dismissed.
In Admiralty. On appeal from district court. Libel for collision, by Ezra S. Deyo and others against the floating elevator Oswego and others. Decree for claimant, and libelants appeal. J. F.Mosher, for appellants. Wm. W. Goodrich, for LACOMBE, J. The libelants' canal-boat, Capt. Dan Bromley, was sound and when:she was laid along-side of the bulkhead between streets, East river. Subsequently, and apparently on the morning of February 2.5 j 1886,a hole was stove in her siele, causing her to leak badly, and greatly damaging her cargo; The libelants conterid that this was done by the Oswego, but offer no direct evidence in support of their claim. What made the bole, and how it was made, is left to be· determined by a balancing of severalpossibiliHes. That itwas caused by a blow from the Oswego while backing in, by a stroke from her fenders, while both boats were· lying along-side, by the floating piece ·.of wood,orthe cakes of ice to whose presence some o£the witnesses testify, by a sunken pile or a. projecting tinlberbefore the Bromley was httuqed') off from ··the blllkhead,are all within the possibilities'. Were it not foththe evidenoe of Walgren,· Lawless, and O'Brien, the first· M these theories would seem to be the most plausible. They tE:stify, however, with great positiveness that the Oswego did not touch the Bromley, nor even come near enough to her to admit of using the rope fender which O'Brien had in hand. The district judge, who saw and heard these witnesses, has credited their testimony, and there is n·othing in the case which should induce this court, which has neither seen nor heard them, from rejecting their evidence. This testimony effectually negatives the theory set out in the libel that the hole was caused by the Oswego striking the canal-boat a violent blow on the starboard side. To undertake to decide from the evidence which, if any, of the other suggested accidents caused the damage is, mere guess-work. The claimants are entitled to a decree dismissing the libel, with costs of this court.