The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This action is brought by the libellant, to recover charter hire for the tug "Comanche", alleged to be due, and for damages alleged to have been caused by the use of the tug as an ice breaker.
On or about December 15, 1941, the libellant, by oral charter, confirmed in writing on December 16, 1941, chartered to respondent the tug "Comanche", for a period of thirty days at an agreed price of One hundred and eighty dollars per day. The charter constituted a demise. In accordance with the terms of the original charter, the libellant and respondent extended the charter for a definite period of thirty days.
The respondent took possession of the "Comanche" on December 15, 1941, and finally the charter having ended on February 14, 1942, the "Comanche" was delivered to libellant on February 15, 1942.
The libellant billed respondent for charter hire from December 15, 1941 at 6 A.M. to December 31, 1941, at midnight, which bill was paid in full, and requires no further consideration.
The libellant billed respondent for charter hire from December 31, 1941, to January 15, 1942, at midnight; from January 15, 1942, at midnight to January 31, 1942, at midnight, and from January 31, 1942, at midnight to February 14, 1942; the total of the three billings being $8,373.59 and the total amount of the payments being $6,348.59, leaving an amount unpaid of $2,025. In addition to this, libellant claimed an additional amount of $297 for which it billed respondent, because of the increased amount of wages required to be paid to the crew, but this charge of $297 has been waived by the libellant, leaving the amount claimed to be due for charter hire $2,025.
During part of the time for which such charge was made, the "Comanche" was, on the orders of the libellant, sent to dry dock for repairs. What deduction, if any, the respondent is entitled to, because of being deprived of the use of the "Comanche" on the days in question, is dependent on whether the repairs the "Comanche" was required to make were due to the negligence of the respondent, its agents, or servants, or to the failure of the libellant to keep its tug in repair. The libellant is entitled to recover such sum as charter hire, less any deductions, which may be found to be proper. United States v. Cornell Steamboat Co., 267 U.S. 281, 45 S. Ct. 239, 69 L. Ed. 613.
The "Comanche" was used by the respondent for towing from Gulfport, New York, to Middletown, Connecticut, and had met with considerable ice prior to January 17, 1942, which she had been used to break.
On January 16, 1942, notice was given on behalf of the libellant to the respondent, in writing, of which an officer thereof had been apprised on January 17, 1942, that it would hold the respondent for all damages caused to the "Comanche" by using her for the purpose of breaking and plowing through ice.
On January 22, 1942, the tug "Comanche" was in good seaworthy condition. She had, on the orders of the respondent, left Gulfport, New York, bound for Middletown, Connecticut, on the Connecticut River, with a loaded oil barge in tow. The Master of the "Comanche", who was employed and paid by the libellant, but was acting under the orders of the respondent, was told by a representative of the respondent to stop with the tug and tow at Saybrook, Connecticut, and pick up a Pilot, who would take charge of the tug when he gets on at Saybrook.
When the tug arrived at Saybrook, she stopped, and a Connecticut River Pilot, boarded the "Comanche", went to the pilot-house, and took charge of the tug. The "Comanche" with her tow proceeded up the river, with the Pilot at the wheel, navigating the tug, without any particular incident. Ice was encountered, but caused no difficulty as the "Comanche" had been preceded up the river by other vessels.
The "Comanche" and her tow arrived at Middletown in good condition.
After the oil barge was unloaded, the "Comanche" on the following day, January 23, 1942, started down the river with the light oil ...