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and there is no evidence that the owners contemplated, or contemplate, making any further repairs. The only difference between the ship as she was before receiving her injuries and after she was repaired was that, instead of having such of her beams as were broken in the collision replaced by new ones, the injured parts were mended, or, as described by one of the witnesses, "the broken pieces were cut out and butts made in the frames, with bosom pieces over the butts." To have taken out the broken frames and replaced them with new ones, it would have been necessary to remove much uninjured material in order to reach the damaged parts, and would have cost, according to the lowest bid received, $23,990, a sum $18,695 greater than was paid for the repairs actually made; and this method of repairs, although more expensive than the one actually adopted, would not have added to the efficiency of the vessel as a seagoing ship, or have enabled her to secure more or higher rates of freight. But, notwithstanding this, several witnesses testified that the Drumcraig had depreciated in market value from $15,000 to $18.000, because these more expensive repairs were not made; that upon an examination of the vessel it would appear from the repairs made that she had been injured in a collision, and knowledge of this fact would make her that less valuable if offered for sale and the libelant insists that such depreciation in market value is an element of damage for which recovery should be had. I am unable to agree with this contention. The vessel, by the repairs made, was, as has been stated, restored to her full efficiency as an ocean carrier, the purpose for which she was constructed and used; and the libelant is therefore only entitled to recover the reasonable cost of such repairs. Sawyer v. Oakman, 7 Blatchf. 290, Fed. Cas. No. 12,402; Petty v. Merrill, 9 Blatchf. 447, Fed. Cas. No. 11,050; The Monitor and The Hill, 3 Biss. 24, Fed. Cas. No. 9,711; The Baltimore, 8 Wall. 377, 19 L. Ed. 463. In the case last cited the Supreme Court said:
"Restitutio in integrum' is the leading maxim in such cases, and, where repairs are practicable, the general rule followed by the admiralty courts in such cases is that the damages assessed against the respondent shall be sufficient to restore the injured vessel to the condition in which she was at the time the collision occurred."
And if the vessel is made precisely as strong, staunch, and serviceable as she was before the collision, she is restored to her former condition within the meaning of this rule. That this is all that is required very clearly appears from the case of The Monitor and The Hill, 3 Biss. 24, Fed. Cas. No. 9,711. The question was there presented whether the libelant was entitled to recover the cost of a new mast to take the place of an old one which had been injured in a collision. While the fact that the injured mast was old and weak was given some weight in the conclusion reached by the court in that case, the following language from its opinion is a correct statement of the rule applicable here:
"The evidence shows that the mast was not broken off, but was cracked or strained to such an extent as to render it unsafe for service in the estimation of all who saw it; and it was properly fixed at the expense of $58 and one day's delay, so that it seems for all practical purposes to have been as useful as
it was before the injury. It may not have been as symmetrical, but it evidently was as serviceable. It is claimed on the part of the libelants that they were entitled to a new mast in place of the old one thus broken by the carelessness of the respondents; and this might possibly be true, if the old mast had been rendered entirely worthless, so that it was impossible to repair it and make it fit for service. But the proof shows that by fishing it did good service during the entire season, and there is no evidence, but what it would have continued as serviceable for the remainder of the life of the vessel. ** The
rule of compensation, where the damage can be repaired, is to make the injured part as nearly as possible as good as it was before the injury occurred; and, applying that rule to this case, it seems to me the respondents ought not to be mulcted in the cost of the new mast. The old mast, when repaired, served all the purposes that it did before the injury."
In the case of The Helgoland, 79 Fed. 123, an allowance of $1,800 for depreciation in value of the injured vessel was allowed, but this was upon the express ground "that the twist given to the boat remained evident and palpable, notwithstanding all that could be done to correct it," and "that a boat thus sprung and twisted has not the endurance, or the life, of a boat not thus strained and out of shape"; and it was said by Judge Brown, in the course of his opinion:
"The allowance here is not upon the vague notion that she is not as good, or will not sell for as much, simply because she has been in collision, when everything discoverable has been apparently rectified and repaired. what remains is palpably not repaired, and could not be, without great expense. This boat was one of the finest of the kind ever built, costing about $21,000 a few months only before the accident. An allowance of between 8 and 9 per cent. for the inferior value and endurance power of the boat is, it seems to me, a fair and moderate allowance, of which the defendant should not complain."
In Sawyer v. Oakman, Blatchf. 290, Fed. Cas. No. 12,402, the precise question arose, as it does here, whether, when a vessel has been repaired so as to be as strong and seaworthy as before the injury, her owner is entitled to recover damages on account of her depreciated market value, and the court in its decision of that question, said:
"The commissioner reports that the schooner, by the repairs put upon her, was restored, so as to be as strong as she was before the accident, and that she was thereby rendered as valuable to her owners for their own use and employment as she was before. If that be so, then she was as valuable to any other persons for their use and employment. But he is of opinion that she would not sell for so much as she would have sold for, if the disaster had not occurred. I think it quite probable that market price is, in such a matter, so sensitive that it might be difficult to satisfy a proposed purchaser that the vessel was as valuable as before, or difficult to satisfy him that he would in future, should he desire to sell, be able to produce that conviction in the mind of a purchaser from himself. But, the fact being true that the vessel is just as good as before the accident, the respondents having, by the sum otherwise awarded as damages, made her so, every attempt to estimate the influence of a purchaser's timidity or incredulity on her market value must be of the most uncertain and vague conjecture, not resting upon any sound reason. It is quite too loose to be the foundation of a charge against the respondents."
This is so clear a statement of the rule which rejects evidence of depreciated market value as an element of damage, when a vessel has been fully repaired and thereby made as serviceable as before a col
lision, and of the reasons underlying the rule, that further discussion of the question is not deemed necessary.
The exceptions are overruled.
BOLLMAN v. TWEEDIE TRADING CO.
(District Court, S. D. New York. January 22, 1907.)
1. SHIPPING-CHARTERS-CONSTRUCTION-DOCKING VESSEL.
A charter provided that, as the steamer might be from time to time employed in tropical waters during the term of the charter, she should be docked, bottom-cleaned, and painted whenever the master should think necessary, but at least once in every six months, and that payment of hire should be suspended until she was again in proper state for service. The vessel arrived in New York, after having made a voyage to South America, on March 30, 1905, with cargo to be delivered in Boston, where she went and discharged such cargo, returning immediately to New York for docking. The time for docking under the six months' clause expired April 13, 1905. Held, that when the steamer returned to New York it was on the charterer's time, and that the hire continued, except for the period consumed for docking in New York.
2. SAME-INJURIES TO VESSEL.
A charter party provided that the owner should supply under the contract all provisions, wages, etc., and maintain the vessel in an efficient state, and that he should furnish tackle to handle ordinary cargo up to three tons, and to work the winches day and night, if required. The charterer was to furnish the coals, etc., and all other charges not otherwise specified. The charterer loaded the vessel with locomotive machinery and placed upon her a large wooden boom, with a wooden shoe, fitted with ring bolts to be used in handling the cargo. After the vessel had been docked at Havana, the ship's employés, acting as the servants of the charterer, constructed the boom and shoe, and with the same attempted to raise a package weighing about eight tons. As it was being lowered over the side of the vessel, a bolt in the shoe broke, bringing the weight of the package and broken appliances against the foremast, to which they were attached, which caused it to break and do damage to the vessel. Held, that the operation of such special machinery was at the risk of the charterer, and that the latter was, therefore, responsible for the injuries so caused.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Shipping, § 220.]
Convers & Kirlin, for libellant.
Wheeler, Cortis & Haight, for respondent.
ADAMS, District Judge. This action was brought by Johann Bollman, agent for the owners of the steamship Otto Sverdrup, to recover (1) the sum of $642.10, which it is alleged was improperly deducted from the hire of that steamer; (2) the cost of repairs and for damage to the vessel's foremast, amounting to $1,777.33, caused in discharging a heavy package of machinery at Havana. The answer of the respondent to the first claim is that the steamer was delayed for the period claimed while she was in owners' hands for the purpose of dry docking and the answer to the second claim is that the ship was required to but did not furnish proper appliances for discharging, hence the damage.
1. The Sverdrup was a new steel vessel, built in 1904, at Shields, from whence she made a voyage to the Baltic Sea, etc., and to Hull, England, where she was dry docked on October 13, 1904. She then came here in ballast to enter upon a charter with the respondent for six months, which on March 17, 1905, was prolonged for a period of twelve months. She was first delivered to the respondent on the 5th day of November, 1904, at 6 A. M. and was in its service at the time of the trial.
The charter contained the following clause:
"21. That as the steamer may be from time to time employed in tropical waters during the term of this Charter, steamer is to be docked, bottom cleaned and painted whenever Charterers and Master think necessary, but at least once in every six months, and payment of the hire to be suspended until she is again in proper state for the service."
The vessel first loaded for the charterer a general cargo for South America, where she discharged and loaded cargo for New York and Boston. She arrived in New York on March 30, 1905, and an immediate controversy began between the master and the respondent's executive officers with respect to the docking, the former claiming that as the time for docking had not arrived, the ship was entitled to go to Boston, for which place she had some cargo, and discharge and then return to New York for another cargo for South America, which the charterer proposed loading her with, and dock in New York. The charterer alleges it was agreed that it was advisable for the vessel to be docked, etc., and she was delivered to the owners for such purpose on the completion of the discharge of her Boston cargo and it was then the duty of the ship to return to New York upon the owners' time and it accordingly deducted such time from the hire.
The time for docking under the 6 months' clause, supra, expired April 13th. There was no agreement between the parties with respect to docking other than that contained in the charter. They both thought it advisable that docking should be done before the beginning of another voyage but there was no agreement about it or with regard to Boston. The charterer notified the master that it would assume the position taken here but the master ignored the notification and, through the owners made arrangements for docking in New York, as he was apparently entitled to do. When the steamer returned to New York, it was upon the charterer's time and hire continued as claimed in the libel except for the period consumed for docking in New York, said to have been about 8 hours. For this time the charterer is entitled to credit.
2. The cost of repairs and damage to the vessel's foremast.
The charterer loaded the vessel with locomotive machinery and other cargo at Philadelphia and placed upon her a large wooden boom and a wooden shoe, made with three pieces of oak 10x12 inches, bolted together. The dimensions of the shoe were 3 feet by 5 feet 6 inches long and 10 inches deep. The shoe had been slightly hollowed out on top at the center so that the end of the boom might rest upon it. It was fitted with two ring bolts of about one inch iron, having rings on the end of them 41⁄2 inches in diameter. There was one ring
bolt at each end of the shoe. The apparatus was to be used in handling the cargo.
The vessel proceeded to Havana, en route to points further south, and went alongside of a wharf there to which she was ordered by the charterer and arranged to discharge, using the boom and shoe. They were rigged up by the crew of the ship, who were competent men in general ship work but not especially experienced in matters of this kind. The charterer's agents in Havana invoked their assistance, which the master furnished, saying that he would not be responsible for anything. The stevedores then took charge of the unloading and their winchmen were driving the winch when a package weighing about 8 tons, being lowered over the side of the vessel, proved too heavy for the apparatus, and a bolt in the shoe broke. The weight and strain of the package and the broken appliance were brought violently against the foremast, to which they were attached, and caused it to break and other damage was done to the vessel thereby.
The claim of the libellant is that the respondent was under the obligation to remove the cargo without damaging the vessel and that the gear used was of insufficient strength and the respondent therefore was responsible for the damage.
The respondent alleges that the accident was caused by a latent defect in the shoe, which was not discoverable by a careful inspection, and for which the respondent is not liable, or by the insufficiency of the mast or by the negligence of the owner in improperly rigging the derrick and shoe or by some other cause or act for which the respondent is not liable.
The contract contains the following provisions:
"Witnesseth, That the said owners agree to let, and the said charterers agree to hire the said steamship from the time of delivery, for about six (6) calendar months Steamer to be placed at the disposal of the Charterers, at a safe U. S. A. Atlantic port at charterers option as ordered by them on arrival at any U. S. Atlantic port or place at owners option in such dock or at such wharf or place (where she may always safely lie afloat, at all times of tide), as the Charterers may direct, and being on her delivery ready to receive cargo, and tight, staunch strong and in every way fitted for the service, including dunnage as may be on board, having water ballast steam winches and donkey boiler (and with full complement of officers, seamen, engineers and firemen for a vessel of her tonnage), and to be so maintained during the continuation of this Charter Party; to be employed in carrying lawful merchandise. * ***
1. That the owner shall provide and pay for all provisions, wages and Consular shipping and discharging fees of the Captain, Officers, Engineers, Firemen and Crew; shall pay for the insurance of the vessel, also for all the cabin, deck, engine room and other necessary stores, and maintain her in a thoroughly efficient state, in hull and machinery for and during the service.
2. That the Charterers shall provide and pay for all the Coals, Fuel, Port Charges, Pilotages, Agencies, Commissions, Consular Charges (except those pertaining to the Captain, officers or crew), and all other charges whatsoever except those before stated.
22. That the Owners are to provide ropes, falls, slings and blocks, necessary to handle ordinary cargo up to three tons (of 2,240 lbs. each) in weight, also lanterns for night work.
23. Steamer to work night and day if required by Charterers, and all steam winches to be at Charterers' disposal during loading and discharging, and steamer to provide men to work same both day and night as required,