SWAN, Circuit Judge. For an understanding of the errors assigned it is necessary to refer to former litigation between the parties, as well as to analyze carefully the complaint in the present suit. In August, 1921, plaintiff shipped flour on the steamship Panola, to be carried from Philadelphia to Helsingfors, Finland. The vessel was owned by the United States and operated by Susquehanna Steamship Company under a contract, known as the M. O. 4 form of agreement, between defendant and its operating agent. The vessel was delayed in sailing, so that plaintiff's flour was not delivered at the port of discharge until about November 18, 1921, and plaintiff claimed that thereby he lost his market and suffered damage of nearly $4,000. On March 29, 1923, he brought suit against defendant to enforce this claim. This suit, hereafter referred to as the first suit, was tried in the District Court for the Eastern District of New York on October 4, 1923. At the close of plaintiff's case, defendant moved to dismiss the complaint, and the court granted this motion, on the ground that the evidence the M. O. 4 agreement did not establish liability on the part of the defendant. From the judgment of dismissal, plaintiff sued out a writ of error. We affirmed the judgment in Dietrich v. U. S. Shipping Board E. F. Corp., 9 F. (2d) 733. Judge Rogers' opinion states that the Susquehanna Company was the agent of defendant, and the latter was obligated by the bills of lading issued by its agent, but that their terms excused the acts complained of in the libel. While the first suit was pending, plaintiff began a second suit, on August 17, 1923, against Susquehanna Steamship Company, charging the same breach of contract of carriage against it. The defense of this suit was first undertaken by the United States attorney for the Southern district of New York, acting for the Fleet Corporation. Subsequently he withdrew, and the Susquehanna's own counsel was substituted as its attorney of record. On May 22, 1924, a judgment by default was entered for plaintiff for $4,481.51. The Susquehanna Company was then without assets and nothing was recovered on that judgment. On February 8, 1926, plaintiff brought the present suit against defendant. Prior to trial, a motion by defendant to dismiss the complaint, on the ground that the judgment of dismissal in the first suit was res adjudicata, was denied. This order is assigned as error. Plaintiff contends that it is not properly subject to review, because no exception was taken to it, and because it was not stated as a ground for dismissal when defendant moved to dismiss at the close of plaintiff's case, and that in any event the defense of res adjudicata, which was also pleaded in the answer, is insufficient, on the ground that the judgment of dismissal in the first suit was not on the merits, and that the present suit is on a different cause of action. This brings us to an analysis of the complaint. It is impossible to know with certainty from the complaint what cause of action the plaintiff attempts to allege. It sets out (1) that the defendant was engaged in the operation of steamships as a common carrier for hire, and operated the Steamship Panola between Philadelphia and Helsingfors in August to November, 1921; (2) that on August 31, 1921, defendant solicited plaintiff to ship a consignment of flour on said vessel, and "warranted and represented" that, although the bills of lading would be signed by Susquehanna Steamship Company, Inc., the defendant was the principal and would perform the contract of carriage, and would "pay any judgments which might be recovered by shippers because of a breach of the contract of carriage, against said agent"; (3) that in reliance upon said warranty and representation plaintiff made his shipment and accepted bills of lading signed by said Susquehanna Company; (4) that defendant, through its said agent, broke the contract of carriage by unlawfully delaying and deviating from the contemplated voyage, to plaintiff's damage in the sum of $4,480.31; (5) that thereafter plaintiff recovered a judgment for said sum against defendant's said agent, the Susque hanna Company, for breach of said contract of carriage, and "the judgment roll in said action is hereby pleaded"; (6-11) that in said suit defendant's attorney, appearing for said Susquehanna Company, stated that defendant was obligated to pay any judgment which might be rendered against its said agent, and that it was defendant's uniform practice to pay such judgments, and in reliance upon such statement plaintiff granted said agent an extension of time to plead; that the judgment remains unpaid, the Susquehanna Company is and was at all times insolvent, and was a mere dummy selected by defendant, in reckless disregard of the interests of the shippers whose merchandise it undertook to carry; (12) that defendant has refused to pay plaintiff the amount of said judgment "in accordance with its 27 F.(2d) 681 agreement aforesaid," although due demand therefor has been made. Paragraphs (1) to (4) of the complaint are sufficient to charge a contract of carriage by defendant, evidenced by bills of lading signed by its agent, the Susquehanna Company, and a failure to perform said contract to the plaintiff's damage. This would be the same cause of action passed upon in the first suit, and, if the present complaint were construed as setting up this cause of action, we should have to consider the defense of res adjudicata. It is true that in the first suit the District Judge stated that he did not pass upon the merits, but dismissed upon the plaintiff's failure to make sufficient proof. Nevertheless the judgment entered of record contains no recital that the dismissal is without prejudice, and it would seem, in view of section 482 of the New York Practice Act, that the former judgment would be a complete answer to the present suit, if the latter be deemed to allege the same cause of action. But we need not pass definitely upon this question, for plaintiff expressly disclaims in his brief that he is suing upon the contract of carriage. He asserts that "the instant suit is brought upon a judgment and the defendant's promise to pay the same." [1] Viewing the complaint as declaring upon a promise to pay the judgment recovered against the Susquehanna Company, we find, in folios 16, 17, the allegation that the contract of carriage was induced by the defendant's warranty that it would "pay any judgments which might be recovered by shippers against said agent." This would be sufficient as an allegation, but there is no proof of such a promise. Ball, the broker who acted for plaintiff in booking. space on the vessel, testified that Silver, defendant's traffic manager, told him "that the Emergency Fleet Corporation were back of the Susquehanna Steamship Company all the time," and that he passed this information on to plaintiff's manager. A similar statement was made by McFadden, an agent of the Susquehanna Company. But this is far short of a contract by defendant to pay any judgment recovered against its agent. It is no more than a representation that the Susquehanna Company is defendant's agent. At folio 20 it is alleged that defendant's attorney stated that defendant was obligated to pay any judgment against its operating agents, and made a uniform practice of paying such judgments, and that plaintiff, in reliance thereon, extended time for the Susquehanna Company to plead. If this be deemed an allegation of a contract to pay any judgment rendered in that suit, there is no evidence of the attorney's authority to make such a contract. Certainly such authority is not within the general powers of an attorney. Finally there is the theory that defendant's agreement with its agent "the M. O. 4 agreement"-bound defendant to pay the costs and expenses incident to the operation of the Steamship Panola, that sums due to shippers for breach of contracts of carriage were such expenses, and that this agreement was for the benefit of shippers, including plaintiff. This was the theory submitted to the jury; plaintiff's judgment against Susquehanna Company being used as proof of the amount of his claim, if his claim was to be deemed an expense of the voyage. The judge charged: "So, gentlemen, the question for you to determine is whether the damage to this shipment, as represented by this judgment, was, under the terms of this contract, such expense as the defendant undertook to pay in connection with the operation of the vessel that transported the shipment in question. If you find from a preponderance of the evidence that it was within the provisions of the contract-that is, was a part of the costs and expenses incident to the manage ment and operation and conduct of the business of the vessel-you should return a verdict in favor of the plaintiff here for the amount of the said judgment, together with interest to this date, which, I think the testimony was, amounts to $5,385.37." [2, 3] One difficulty with this theory is that there is absolutely nothing in the complaint which can be thought to allege it, unless it be (folios 21, 22) "that, in fact, upon information and belief, defendant agreed with said Susquehanna Company to pay to shippers any judgments which might be recovered against said Susquehanna Company and various and sundry of its other operating agents by reason of the breach by them of the contract of carriage." This is scarcely an allegation that defendant agreed to pay expenses of the voyage, whether reduced to judgment or not. But a more serious difficulty is that we can find in the M. O. 4 agreement no language capable of being construed as an agreement to pay to shippers any judgments they may recover against the agent. We may, perhaps, find in the agree ment an obligation by defendant to indemnify its agent for expenses of the voyage, though even this obligation is not express. PORT CO. v. UNITED STATES. Circuit Court of Appeals, Second Circuit. July 9, 1928. But an obligation to pay charges and dis- PAN-AMERICAN PETROLEUM & TRANSbursements of the agent is not a promise to pay a judgment for such charges and disbursements. To promise to pay the judgment is to put oneself at the agent's mercy in defending the action, and should require specific language on the part of the prin- 1. Collision cipal. There is no such promise in the agreement. [4] Viewing the agreement as including a promise to indemnify the agent against proper expenses of the voyage, the plaintiff is confronted, first, with the objection that the complaint alleges no such cause of action; and, second, if that defect could be cured, that the promise itself is not one for the benefit of the plaintiff, which would entitle him to sue at law in a federal court. It is for the benefit of the agent, not for those who might be incidentally benefited by having the agent supplied with funds. Whether it is an equitable asset of the Susquehanna Company, which plaintiff could reach by bill in equity in the nature of an equitable execution to satisfy his judgment, we need not consider. [5] The attorney for the defendant took no exception to the judge's charge, and plaintiff denies that any question is open for review, asserting that the record fails to disclose any sufficient motion by defendant to dismiss. When the plaintiff rested, the defendant's counsel stated: "If your honor please, I would like to move to dismiss the complaint. Do you care to hear argument at this time?" To which the court replied: "No; not at this time." After the jury had been charged, defendant's attorney attempted to have the record show that the motion to dismiss was renewed at the close of the case. The court stated that he thought such a motion had been made, but, in any event, it might then be made, and he proceeded to overrule it, allowing defendant an exception. The plaintiff contends that the motion at the close of plaintiff's case was ineffectual, because it did not specify the grounds upon which defendant relied. That supposed defects should be specified in the motion is undoubtedly the New York rule, and has been approved by this court in Am. Concrete Steel Co. v. Hart, 285 F. 322, 325. Nevertheless, this rule need not tie our hands, where the error is clear, and especially when the court expressly declines to hear argument. For reasons already stated, the judgment cannot be sustained, and is accordingly reversed, with costs to plaintiff in error. No. 306. 136-Test In determining whether detention damages should be allowed for collision is whether reasonable person would have considered detention for repairs immediately necessary. Test for determining whether detention damages should be allowed during time of making repairs after collision is whether reasonable person would have considered collision repairs immediately necessary. 2. Collision 125-Vessel owner held not to have proved that detention damages during time of repairs were proximate result of collision. Vessel owner held not to have proved that detention damages, during time vessel was being repaired after collision, were proximate result of collision. Appeal from the District Court of the United States for the Southern District of New York. Libel by the Pan-American Petroleum & Transport Company, as the owner of the steamship Norman Bridge, against the United States, as the owner of the steamship Rapidan. From the decree (21 F.[2d] 791), the United States appeals. Reversed. Appeal by the respondent from a decree in the admiralty of the District Court for the Southern District of New York, holding it liable for detention damages due to a collision. The respondent's ship, Rapidan, collided with the libelant's ship, Norman Bridge, on June 7, 1920, and for 80 per cent. of the resulting damages the respondent has stipulated that it shall be liable. The assessment of these being referred to a commissioner, all items were agreed upon except damages for detention. As to these the facts were as follows: On September 9, 1919, the Norman Bridge had collided with another vessel and sustained damage on her starboard bow above the water line, which did not, however, affect her seaworthiness. She continued in service without repairs, and on March 27, 1920, struck her propeller against some submerged object. The injury required eventual replacement of the propeller, but this was not done at the time, and she still continued in service. On May 22, 1920, she took the ground and injured her port bilge keel. Again she deferred repairs and continued in 27 F.(2d) 684 her business. The collision with the Rapidan inflicted the same injury to her port bow that the collision on September 9, 1919, had to her starboard. The repairs of the first three injuries are spoken of as "owner's repairs," in contrast with the last, which are called "collision repairs." Thus she had in all suffered four separate injuries, and on July 6, 1920, was sent to dry dock, where all repairs were done at once. The collision repairs occupied 10 days, the full amount of the detention, and were not delayed by the owner's repairs. The only evidence as to the extent to which the collision repairs required her immediate lay-up was in the affidavit of the libelant's vice president, which alleged that, "although the damages sustained as a result of the collision" with the Rapidan "did not in themselves render the vessel unseaworthy, it was deemed advisable to make repairs immediately." Again: "The primary reason for sending the vessel to the repair yard upon her arrival at New York was to carry out repairs due to the collision." As to owner's repairs it was agreed that "none of the repairs not due to the collision with the Rapidan was necessary to the seaworthiness of the vessel, and had it not been for the collision with the Rapidan the other repairs would have been deferred until the regular drydocking of the vessel in October or November, 1920." The commissioner divided the detention damages equally between the parties, but the District Court awarded 80 per cent. of them under the stipulation. Charles H. Tuttle, U. S. Atty., of New York City (Horace M. Gray, Sp. Asst. U. S. Atty., of New York City, of counsel), for the L. HAND, Circuit Judge (after stating the facts as above). [1, 2] We held in Clyde S. S. Co. v. N. Y., 20 F. (2d) 381, that, when the owner waits to make collision repairs until the yearly overhaul, no detention damage may be allowed. This is because, as the overhaul is necessary in any event, so much of the ship's time is bound to be lost, regardless of the collision. If so, the owner has lost no profits, for he could have earned nothing dur. ing the lay-up. What we added in that case, as to the rule when owner's repairs are made at the same time as collision repairs, presupposed that the last were immediately necessary. The Bergen, 128 F. 920 (C. C. A. 2), stands only for the doctrine that in the case of necessary collision repairs the detention damage must be limited to such time as is required for them alone, an obvious conclusion. The District Court thought that it made no difference whether the collision repairs were in fact immediately necessary, so long as the owner believed it prudent to make them at the time. We agree, provided the owner's conclusion be well founded; that is to say, the tort-feasor may not complain if, in the situation in which the collision has placed the owner, he is reasonably apprehensive as to the seaworthiness of his ship. No one is obliged to take chances in the interest of one who has wronged him. However, it seems to us equally clear that an owner may not seize the opportunity offered him by a collision to advance his periodic overhaul, and make owner's and collision repairs together, when the ship remains fit for her service as she rides. So to hold would put in his hands the option at his pleasure to throw the loss upon the tort-feasor and profit by the wrong. This is entirely plain in cases where the damage is of a trivial kind, which nobody could honestly suppose to impair the ship's capacity. In the case at bar the stipulation is that the collision repairs were not necessary to the ship's seaworthiness, but that the owner thought it advisable to make them at once. Strictly the measure of damages in collision is the difference in value between the ship before and after the collision, but the cost of the necessary repairs and the loss of earnings while they are being made have long been regarded as its equivalent. As to the loss of earnings, it may be that the owner makes a prima facie case when he proves his actual loss by reason of the lay-up. In respect of repairs this has been held in another connection. Mayor, etc., of N. Y. v. Second Ave. R. R., 102 N. Y. 572, 577, 7 N. E. 905, 55 Am. Rep. 839; McKegney v. Illinois Surety Co., 180 App. Div. 507, 167 N. Y. S. 843. In addition, the stipulation answers the possibility that the libelant might not honestly have thought it necessary to select the season which he did; so much we may attribute to the term "advisable." Nevertheless it remains true that the lay-up was in fact unnecessary, since the ship was seaworthy as she sailed, which means that she was reasonably fit for her service. The test in such cases is, not the judgment of the victim of the wrong, but the ob jective standard of a reasonable person. The Baltimore, 8 Wall. 377, 385, 388, 19 L. Ed. 463. Conceivably it may be possible that a reasonable owner might think that a seaworthy ship should be laid up for repairs before the season for her overhaul, but the presumption appears to us otherwise. The eventual burden of proof rests upon the owner, and, although his selection of the season may possibly make a prima facie case, it is answered by her actual seaworthiness, which, unexplained, condemns his judgment. must go further, and show that it did not, and this he has not done. He So we think that the libelant has failed to prove that the detention damages were the proximate result of the collision, and it beproximate result of the collision, and it becomes unnecessary to decide whether it made a difference that owner's repairs went along at the same time. However, since the result depends upon a nice regard to the terms of the stipulation, probably drawn without the distinction precisely in mind, we will remit the cause to the District Court, with leave, if so advised, to relieve the libelant from it. Upon that question we wish, however, expressly to say that we do not indicate any opinion one way or the other. Decree reversed. In re HIBBARD et al. Circuit Court of Appeals, Second Circuit. July 9, 1928. No. 337. 1. Bridges 27--Announcement of willingness to restore damaged bridge for specified sum held equivalent to bid, which became limit of recovery against damaging vessel, when new bridge built. Where vice president of responsible construction company, at hearing before United States engineers having supervision over river to consider construction of temporary bridge, announced willingness to restore bridge, which had been damaged by petitioners' vessel colliding therewith, for specified sum, held, that such announcement, though not in form of offer, was equivalent to bid, and became limit of recovery against vessel owner, where bridge was never repaired, but was superseded by new one. Appeal from a final decree in admiralty of the District Court for the Southern District of New York, awarding damages to the appellees because of a collision with their drawbridge across the Hackensack river by the appellant's steamer, the Glendaruel. On June 22, 1922, the Glendaruel fouled a drawbridge crossing the Hackensack river, owned by the counties of Hudson and Essex in the state of New Jersey. Hibbard, the Glendaruel's owner, petitioned to limit his liability, and the counties filed a claim and disputed the limitation. On the trial the District Court found the Glendaruel at fault, but Hibbard entitled to limit his liability. The interlocutory decree directed a reference to a commissioner, who took the evidence and whose report the District Court confirmed. Hibbard appealed. The question relates only to the amount of the award. The draw was broken into two parts by the shock, and was in fact never repaired; the whole bridge itself being superIt became necessary, seded by another. therefore, to estimate the cost of its restoration to its original condition; that being the measure of damages adopted, and not seriously disputed. Within a month of the collision a public hearing was held before United States engineers, who had supervision over the river, to consider the construction of a temporary bridge. Both Hibbard and the counties were represented, and Hibbard produced one French, a responsible engineer, and one Ripley, vice president of a responsible construction company, who described a plan which they had prepared to restore the draw. At the same time Ripley announced |