Appeal from the District Court of the United States for the Eastern District of New York.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
Libelant's dredge No. 9, while anchored and held fast by spuds in the vicinity of Diamond Reef, off the Battery, East River, New York, was struck by the last barge in a tow that was being taken from New York Bay up the East River by claimant's tug James McWilliams. The tow collided with the rear port corner of the dredge causing damage to the latter. An interlocutory decree was granted to libelant holding the tug liable for injuries sustained by the dredge because of the negligent navigation of the tug, and appointing a commissioner to report upon the damages. The interlocutory decree is not questioned, and the only errors assigned on this appeal relate to items of damage allowed by the commissioner and confirmed by order of the court.
It is first contended by the appellant that the item of $2,344, consisting of cost of repairs, towing, and surveys, should not have been allowed. But this was granted by the commissioner and the District Court upon conflicting evidence, and, under familiar rules, should not be disturbed except for the clearest reasons.
It is objected that, when a survey was made the morning after the collision, no injury was discovered except to the port stern extension of the dredge, the repair of which, including dry-docking, would only cost $315. But there was ample testimony that the day after the collision a leakage developed about the forward starboard spud well around the bolts in the bottom of the hull which held the lower spud well casting in position. Four months before the date of the collision, a new casting had been installed in the starboard spud well, all necessary sheathing had been done, and caulking and planking furnished. There was testimony that the blow of the collision was heavy, and that, when it occurred, the forward starboard spud, weighing about eighteen tons, was down in the rocky bed of the river and was so rigid that a heavy blow on the stern forward stud would tend to bend and displace the bolts which held the lower spud well casting in position and would cause the forward starboard spud well to leak. The leaking, which began as soon as the dredge was operated the day after the collision, seems more naturally attributable to the collision than to theoretical causes based upon alleged faulty construction of the spud well explained by claimant's expert. It was found to be attributable to the collision by the commissioner and the District Court. The cost of repairs of the forward spud well was estimated on a second survey held shortly after the dredge began to leak at the forward spud well at $1,754, and that sum was paid for such repairs.
Objections are made to the charge for towing the dredge to the dry dock by the tug Princess and back to Diamond Reef by the Dictator. These items of expenditure are shown in Libelant's Exhibits 17 and 18, were approved by the commissioner, and no exceptions were filed to the report in respect to either of them. These objections are entirely unfounded.
There may have been some doubt about the charge of $150 for the supervision of the repairs at the dry dock by the carpenter representing libelant, but no specific evidence was offered in criticism of it and the item, after allowance by the commissioner and the court, should not be disturbed by us.
Two surveys became necessary because of the injuries that were discovered in the forward spud well after the first survey, and the charges for the surveys were reasonable. Likewise the dry-docking was proper in view of the repairs that had to be made to the forward spud well and casing, even though it might not have been required, if the damage disclosed by the first survey, which was to the rear of the dredge and only a little below the water line, had been all that in fact existed. The item of $2,344, relating to cost of repairs, towing, and surveys is allowed. Donovan v. New York Trap Rock Co. (C.C.A.) 271 F. 308; The Hisko (C.C.A.) 34 F.2d 123.
The court below found $4,434.21 as damages for loss of the use of the dredge during the 6 5/16 days during which her service was interrupted in the dry-docking and repairs occasioned by the collision. This sum represented estimated average daily net earnings, plus daily expenses, during the 405 days which the dredge was found to have worked on the Diamond Reef contract. The court adopted the foregoing measure of damages for lack of proof of the rate for which the dredge might have been chartered.
In The Conqueror, 166 U.S. at page 127, 17 S. Ct. 510, 516, 41 L. Ed. 937, the Supreme Court said:
"* * * The best evidence of damage suffered by detention is the sum for which vessels of the same size and class can be chartered in the market. Obviously, however, this criterion cannot be often applied, as it is only in the larger ports that there can be said to be a market price for the use of vessels, particularly if there be any peculiarity in their construction which limits their employment to a single purpose.
"In the absence of such market value, the value of her use to her owner in the business in which she was engaged at the time of the collision is a proper basis ...