UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
March 18, 1948
THE AMIGA MIA et al.
The opinion of the court was delivered by: WILLIAMS
Report of Special Commissioner follows:
GRAY WILLIAMS, Special Commissioner.
On February 2, 1948, an order was entered herein, referring these causes to me as Special Commissioner 'to hear and determine the joint trials of the above suits' and to issue my report thereon with all convenient speed.
Pursuant to said authority, hearings were conducted by me at 60 East 42nd Street, New York, N.Y. on February 5th, 6th, 7th and 9th, 1948. Also, at the request of the proctor for the libellant, Rose L. Martin, and with the consent of the proctor for the respondent, Minneford Yacht Yard, Inc., I attended on board and made a view of the Yacht Amiga Mia, accompanied by the proctors for the respective parties hereto at the Commercial Dock, Brooklyn on February 9, 1948.
Having considered the evidence and the arguments advanced by counsel for the respective parties in their briefs, I hereby report as follows:
This matter involves three separate actions. The first action, 'Rose L. Martin against Yacht Amiga Mia and Minneford Yacht Yard, Inc.' is a possessory libel under which process was issued and the said yacht was attached on January 27, 1948. The second action, 'Minneford Yacht Yard, Inc. against Yacht Amiga Mia' is a repairman's libel to recover the sum of $ 13,219.86 under which the said yacht also was attached on January 29, 1948. The third action, 'Rose L. Martin against Minneford Yacht Yard, Inc.' is a cross-libel to recover $ 10,000 damages for alleged breach of contract and failure to redeliver said yacht.
The Yacht Amiga Mia is now in the custody of the United States Marshal under the two attachments heretofore referred to.
2. The Facts.
The following facts either are specifically admitted, are undisputed or appear to be so clearly established by the evidence as to make any discussion of the evidence unnecessary as to those facts.
The Yacht Amiga Mia is a former Coast Guard patrol boat, 80 feet 9 inches in length, 16 feet in beam with a 4 foot draft. The vessel was purchased by the libellant, Rose L. Martin, during the mid-summer of 1947 for the purpose of conversion into a yacht.
A small amount of work in the process of conversion was performed at a repair yard in Baltimore after which the vessel was brought on to New York. After some delay due to labor difficulties certain heavy work was performed at another yard in New York. Then, in the early part of November, the libellant, Rose L. Martin, in a conversation with Philip D. Gauss, superintendent of the respondent, Minneford Yacht Yard, Inc., made tentative arrangements for further conversion work to be performed there.
Subsequently, the vessel was delivered to the Minneford Yacht Yard's plant at City Island on November 10th where the vessel remained until January 27, 1948, on which date it was removed by court order.
Meanwhile, either on November 9th or November 11th, there was a conference at the City Island Yacht Club attended by Miss Martin; Paul Walker, the acting captain of the yacht; Henry S. Sayers, the president and manager of the Minneford Yard; an employee of Miss Martin's named Mangels; and Henry Devereux, a naval architect who had been engaged by Miss Martin in connection with the contemplated work on the yacht. Sayers at that time gave no estimate on the probable cost of the contemplated work and testified that it was agreed the work should be performed on a time and material basis.
On November 12th, Miss Martin, Walker, Sayers, Devereux and others made a general inspection of the boat. Afterward, Devereux advised Miss Martin that he estimated the work here involved would require about six weeks to be completed and would cost about $ 10,000. On the same day the Minneford workmen began preliminary work, such as the moving of equipment, after which they proceeded on the conversion work proper.
Other than the general conversations between Miss Martin and Gauss and between Miss Martin and Sayers there was no specific contract. There was no written agreement or memorandum between Miss Martin and the Minneford yard and no specifications were submitted to the yard or prepared by it before the work began. Later, from time to time Devereux submitted certain specifications to the yard, but for the most part the work covered by those specifications was not ordered or performed and eventually Devereux was relieved of his duties as naval architect for Miss Martin.
About December 1, 1947, the Minneford yard presented a bill to Miss Martin, amounting to the total sum of $ 1,347.54, covering labor and materials for November 10, 1947 to November 25, 1947. The bill purported to charge for 394 1/4 hours of labor at the rate of $ 2.85 per hour. There was attached a list of materials furnished for which $ 167.85 was charged, there were charges for telephone calls and finally, the sum of $ 53.98 was charged for Unemployment Insurance, Workmen's Compensation, Sales Taxes and F.O.A.B. deductions.
After receipt of the first bill, Miss Martin questioned the yard accountant, Rm. William R. Winter, regarding the bill and requested that it be broken down into separate items. This Winter refused to do, stating that it involved too much work and that he did not feel that the bill could be broken down with any degree of accuracy. However, he did agree to furnish a bill broken down to classify the workers, but beyond that refused to give a further detailed bill.
Winter also advised Miss Martin that part of the time charge represented 'premium ' time or overtime. It was the practice of the yard to pay its help at the rate of nine and one-half hours for each nine hour day. The overtime or 'premium' time was paid the workmen for the last hour performed on the particular day and was charged against the job that the individual workman happened to be engaged on during that last hour.
A new bill was submitted for the same amount as the December 1 bill and the labor charges were broken down into the categories: riggers, machinists, carpenters and painters. A general statement of items performed by workmen in each category was given, as was the total number of hours for each category during the period covered. There was nothing in the bill to indicate the amount of time pertaining to each item listed, when or just where that work was performed. The bill was duly paid.
A second bill was tendered to Miss Martin on December 11, 1947 in the total sum of $ 1,824.03 for services and material together with taxes for the period from November 26, 1947 to December 11, 1947. The bill was in similar form as the previous bill and once more Miss Martin asked Winter for a more specific breakdown of the items covered. Instead of paying the amount of this bill, Miss Martin paid to the yard the sum of $ 2,000 on January 5, 1948.
About January 6, 1948, Minneford tendered a third bill for $ 4,166.19, for labor, materials and taxes from December 10, 1947 to December 23, 1947. That bill was not paid. Miss Martin refused to make any further payment until the work could be checked by a surveyor and the charges be adjusted accordingly. Sayers refused to entertain such a proposal. Additional bills were tendered, one for $ 1,954.91, covering the period from December 24, 1947 to January 6, 1948, and another for $ 4,801.69, covering the period from January 7, 1948 to January 28, 1948. None of the new bills were paid, and on January 24, 1948, Walker requested release of the vessel which Sayers refused to permit without payment of Minneford's bills.
On January 26, 1948, Miss Martin filed her libel for possession of the vessel. At or about the same time, Minneford rendered two more bills, one for $ 2,226.04 and one for $ 247, and on or about January 28, 1948 it filed its libel here.
3. The Contract.
There was no formal agreement made between the parties here. On the contrary, both parties seem to be somewhat vague as to the times and places of their discussions as to preliminary arrangements. Devereux, the architect, apparently kept a diary, but it was not offered in evidence. So far as the record shows neither Miss Martin nor the Minneford people made any written memoranda of their conversations.
While I do not think that the differences between the witnesses' versions as to the times and places of their conversations is of any material importance here I am inclined to accept Miss Martin's version regarding the arrangements for sending the vessel to Minneford rather than the versions of Gauss and Sayers. Miss Martin says that she called Gauss first on November 7th when she gave him financial references. Gauss says the first call came on Sunday, November 9th. Gauss was about to go on a vacation and that fact can well explain the possible inaccuracy of his recollection. Also, it seems unlikely that the Minneford yard would have accepted the vessel without checking Miss Martin's financial references. Mr. Gauss says he agreed to accept the vessel on Sunday, November 9th, a day on which he could scarcely have checked Miss Martin's financial references. Furthermore, it does not seem plausible that Miss Martin authorized the yard to proceed without any discussion as to Minneford's labor rate and I accept her testimony that a rate of $ 2.75 per hour for all labor was originally quoted to her by Sayers.
On the other hand, assuming that Devereux gave an estimate of four to six weeks for the conversion work and a cost of about $ 10,000, even if made in Sayers' presence and even if Sayers nodded in apparent approval, I do not believe that Minneford can be regarded as having contracted to do the work within that fixed period at the price estimated by Devereux. Something more than the nod of Sayers' head would be necessary to evidence such an agreement on Minneford's part.
Whatever the original arrangements were, about December 1st, Minneford submitted a bill for $ 1,347.54 which included a charge for labor at the rate of $ 2.85 per hour. That bill included also charges for F.O.A.B. taxes, unemployment insurance and workmen's compensation. Miss Martin questioned the bill and a new bill in a slightly different form, but including the same charges was submitted to her.
Upon receiving that bill, Miss Martin had the choice of (1) refusing to pay it and settling all problems as to proper rates and items at that time, (2) paying all charges to date and removing her vessel or (3) accepting the new hourly rate and charges for the various tax and insurance items which she apparently had not previously understood she would be called on to pay.
She paid the bill and permitted the work to continue on the vessel. By doing so, it seems that she impliedly agreed to the $ 2.85 hourly rate on future work as well as to the charges for the various kinds of insurance and taxes appearing in the bills. Restatement of Law, Contracts, sections 21, 72.
On the basis of the foregoing, it appears that the informal agreement between Miss Martin and the Minneford yard was one in which Minneford agreed to carry out the conversion work in a workmanlike manner and that for such work, Miss Martin agreed to pay for labor at the rate of $ 2.85 per hour, for proper F.O.A.B., unemployment insurance and workmen's compensation insurance charges and for materials furnished.
4. The Role of Mr. Devereux.
Before the conversion work was actually commenced, Miss Martin engaged Henry M. Devereux as naval architect in connection with the work to be performed. Miss Martin says that Devereux was introduced by Sayers who recommended his employment. Devereux says that Miss Martin and Walker called upon him first at his office. Sayers says that Devereux was with Miss Martin the first time he saw her.
According to Devereux's testimony regarding his education and his subsequent experience, he appears to be qualified as a naval architect and to have been able to carry out the work for which he was engaged by Miss Martin. There is nothing in the record to indicate the reason for Devereux's ceasing to act for Miss Martin or when the relationship was severed. Furthermore, even assuming that he was engaged at the suggestion of Sayers, there is nothing in the record to justify any inference that Sayers was acting negligently or otherwise improperly in making that suggestion.
It appears that the work contemplated did require expert advice and supervision. Miss Martin's acting captain, Paul Walker, does not appear to have been particularly qualified to carry out that work. His only qualifications seem to be his having worked for some time on merchant vessels, finally attaining the position of second mate. His license as such, however, had expired.
It seems, then, that during the period of his employment, Devereux was Miss Martin's agent and not the agent of Minneford. Minneford was not bound by his acts and any estimates which Devereux made cannot be regarded as commitments on Minneford's part.
5. The Alleged Bribing of Walker.
In both the original libel and her cross-libel, Miss Martin has alleged that Minneford offered bribes and gratuities to her employees to condone Minneford's alleged failure to perform its work in a proper manner. For committing such offenses, Miss Martin seeks to have the yard's lien declared invalid.
As to these alleged acts, Walker, the temporary captain, testified that on November 9th at the City Island Yacht Club there had been a general discussion with Sayers as to the work which would be done on the Amiga Mia. He stated that Sayers had then called him back to the bar where, over a drink, Sayers had told him that the cooperation between captains of yachts coming into the yard and the supervisors and himself had always been great and that the captains were well taken care of, providing there was not any controversy between them on the one hand and the supervisors and himself on the other.
Walker testified further that on January 13th, he met Sayers in a nearby bar and while sitting with Sayers in a booth there, Sayers told him that there had been a lot of complaints as to the nature of the work and the bills; that Sayers stated he thought that Walker understood the yard always cooperated with captains, and that the 10% that he was willing to pay did not justify Walker's constant complaining when the bills were in order. Walker says that Sayers asked him if he would come up to the office and approve the bills. Walker says that he told Sayers that he would 'have no part of it', that he considered it unfair and 'the whole picture, that it absolutely stunk, and anything connected with it smelled of the same odor', after which he left.
Robert J. Carroll, a crew member of the Amiga Mia, testified that he accompanied Walker to the same bar on January 13, 1948, with two other crew members and was in the booth next to that in which Walker and Sayers were sitting. Carroll did not testify as to what conversation took place between Walker and Sayers. He says that he heard the work 'stink' just before Walker got up from his seat in the booth with Sayers, but he does not indicate who spoke that word.
John Mirrer, another crew member of the vessel, testified that he also was in the bar with Walker on January 13th. He testified that on arrival there, Walker sat alone in one of the booths and that Sayers joined him. He says that he saw Walker leave Sayers and testified 'Captain Walker got up and the way he looked, he was mad or something, I don't know what it was all about'. A third crew member, one William Joy, was mentioned as having been present, but he was not called as a witness.
Sayers denies having held either of the conversations testified to by Walker. He says that at the meeting in the City Island Yacht Club, he did not even know that Walker was captain of the boat. He denies that at any time he told Walker the yard was willing to pay him 10% of the bills. He denies having been in the bar with Walker and testified that the last time he was in the place mentioned was during the World Series to watch the returns on the television set there.
While this is not a criminal proceeding, the acts charged to Sayers appear to constitute a crime. In the circumstances, the proof of those alleged acts should be clear and convincing. There is a sharp issue of fact as to whether any such conversation as Walker has described ever took place. From my observations of Walker, he was a violently partisan witness for the vessel owner. He appeared to be hard of hearing and I am not sure that he heard accurately what he claims Sayers said to him. Neither of the crew members who testified could corroborate the alleged conversation in the bar. Both men are still employed by the vessel owner and neither can be regarded as a disinterested witness. The vessel owner did not call the third person who is said to have been present and his absence was not explained.
In view of the foregoing, I do not think that the vessel owner has sustained the burden of proving that Sayers offered to bribe Walker or that Sayers was guilty of any illegal conduct in connection with this matter.
6. Minneford's Bills
Miss Martin objected to the form of the first bill submitted by the yard. It was withdrawn and a more particular bill was substituted for it. Later, the third, fourth, fifth and sixth bills had attached to them sheets described as 'Labor Breakdown', purporting to give the time which each classification of labor had devoted on the particular days covered by the bills. However, no one on either side here would admit that from reading the bill, he could tell exactly what work had been performed, on what part of the vessel the work had been carried out or just how much time had been devoted to any item listed. For example, in the bill dated December 11, 1947 the following items are given:
Cut and weld fuel tanks, and test;
Remove old bilge section, install 1 1/2 line and strainers; remove inboard mufflers;
Drill and tap junction boxes for engineer;
Cut bulkhead doorway in engine room;
Remove shaft coupling;
Remove broken bolts in window frame;
Labor . . . 213 1/4 hr.
According to the yard's accountant, Winter, each workman made up his own time sheet for the particular day covered, showing the amount of time devoted to each vessel and in a general way, the work performed. The man would sign his sheet and foreman would countersign the sheet. The workman would requisition any material he needed and sign a material slip or receipt. From the time slips and material sheets a weekly work sheet was prepared and finally from that, the bill was made up.
The individual work sheets were admitted in evidence. It was stipulated that the workmen who signed the time slips, if called, would testify to the contents of those slips, however, without conceding the truth of the contents. An examination of the slips mentioned shows numerous slips which were not countersigned by foreman and bear no signature other than that of the workman. Other slips purported to be countersigned bear only a rubber stamp signature and raise a grave doubt as to just how effective a check on the workmen's time the foreman made.
Finally, it was the custom of the yard to work a nine hour day and to pay its labor time-and-a-half for the last hour worked. The system followed was to charge the overtime to the last job on which a man had worked during the day. If he worked eight hours on one vessel and was shifted over to another vessel for the ninth hour, the latter vessel was charged with the man's overtime. The system was apparently evolved during the war when the great bulk of the yard's work was being performed for the Government. It simplified bookkeeping, but can scarcely be regarded as a fair method for billing a private owner.
The overtime charges are not shown anywhere on the bills which were submitted. Miss martin has testified that she never requested or ordered any overtime. During discussions concerning the first bill rendered, Winter says that he told Miss Martin 'about premium time being charged and she said she had not understood that'. Just what he told her about premium time does not appear and there is nothing in the record to indicate that Miss Martin consented to a continuance of overtime charges for future work. It does not appear that payment of the first bill or payment of the second bill which failed to carry on its face the overtime charges would constitute an implied agreement on Miss Martin's part to pay for 'premium time' on subsequent work.
7. The Value of Minneford's Charges.
The Minneford yard has submitted bills for the total sum of $ 16,320.40. Those charges include $ 12,539.03 for 4,399 5/8 hours of labor and $ 2,923.78 for material. The work which was contemplated on delivery to the yard had not been completed when the vessel was removed from the yard and it was estimated that completion of the work would cost $ 4,500 more.
Devereux had previously estimated that the job would take about six weeks. Also, I accept Miss Martin's testimony that he had estimated the cost to be about $ 10,000.
The vessel owner offered Mr. Daniel Archer as an expert as to the work and its fair cost. Archer is a graduate of the U.S. Naval Academy and served through various grades in the Navy for 32 years, retiring in 1937 as commander. He then joined the United States Lines and in 1940 resigned to open his own office as Marine consultant in which work he is now engaged.
Archer stated that he had examined all of the work performed by Minneford on the vessel and had compared the various jobs with the bills which Minneford had submitted. He testified that he had made his own estimates of the time which the same work should have taken. Using Minneford's hourly rate of $ 2.85 plus its charge for materials, he estimated that the work performed should have cost $ 8,281.81 and that the completed job should cost approximately $ 12,000.
Archer said that he found the machinists' work to be good, except that it had required far too much time. He described the painting work as bad and stated that it ought to be done over. He said that the carpenter work was poor, that joints had not been properly fitted, that an inferior grade of wood had been used and that the hardware had been improperly set in the doors.
He testified that he found items of work billed which he could not locate or see the results of on the vessel. He stated that he found apparently the same jobs billed over again in successive bills and that throughout an excessive number of hours had been charged for the jobs performed.
On cross-examination Archer added to his time estimates for certain work which was not apparent to him but had been performed, such as a temporary shelter over the engine room, elimination of two portholes, patching the deck, work on floor plates and fitting certain vent pipes. Total additional hours estimated by him amounted to 208 which added to 1,789 hours covered by Archer's original estimates, makes 1,997 hours his estimate for the time for which Minneford might reasonably have charged.
In support of its own charges Minneford offered the testimony of its accountant, Winter, and the time sheets which have already been discussed. The yard superintendent Gauss and four foremen also testified and described some of the work performed by the men under them.
Gauss and the foremen testified to certain incidents when there had been changes in previous work orders. There were a few occasion where work already performed was needless, such as painting shower room and lavatory bulkheads which Miss Martin subsequently covered with tile board. However, none of the foremen could estimate how much, if any, time had been lost on such occasions.
Gauss gave three occasions when time had been wasted. Once four men lost about one hour's time when there was a mix-up as to shifting the vessel. On another occasion, about four hours were lost in moving certain tanks. One day's work was wasted fabricating some angles which were never used. In all sixteen hours' lost time was accounted for.
There was also work performed straightening engine room beams, installing filler blocks or beams in the engine room ceiling and fitting floor plates for which Archer made no allowance. The work seems to have been performed, but Minneford offered nothing to show what time that work required. In the absence of any proof, I suggest that the time of four men working four days of eight hours each be held as adequate for such work.
Taking the additional time into consideration we have as a fair estimate of time:
Archer's original estimate 1789
Additional time by Archer 208
Time lost according to Gauss 16
Time not otherwise estimated 128
Total hours 2141
There is no plausible explanation for the wide discrepancy between the estimates of Archer and Devereux on the one hand and the number of hours in Minneford's bills. In so far as time may have been lost by reason of subsequent changes in plans and orders, it seems unlikely that it could have exceeded other time charged for paint work and carpenter work of such inferior quality as to require being done over again. One probably counterbalances the other.
In my opinion Minneford has not substantiated its charges for time claimed to have been devoted to work on the Amiga Mia. On the contrary, it appears that the yard has sought payment for more hours of labor than a proper workmanlike performance of its duties calls for and that the total heretofore given of 2,141 hours constitutes a fair and reasonable time figure for the work performed by the Minneford yard. At the agreed rate of $ 2.85 per hour, the total labor charge for Minneford's work should be $ 6,101.85.
In his estimates, Archer accepted the Minneford yard's charges for materials and they are not seriously questioned by Miss Martin. The total charge for materials furnished is $ 2,923.78.
Whether it is customary to charge customers specifically for F.O.A.B., taxes, unemployment insurance and workmen's compensation, Miss Martin impliedly agreed to pay those charges to Minneford. I assume that the amounts in the bills represent actual disbursements. Those sums are not questioned anywhere in the testimony and therefore Minneford is entitled to $ 626.74 for such disbursements. The same holds true as to other disbursements, such as telephone charges billed by Minneford.
The final bill submitted by Minneford sought to collect $ 247 for repairs to the vessel's side. Those repairs were not part of the conversion work, but resulted from damages sustained about January 1, 1948 at night when the vessel pounded against her mooring. At the time she was a dead ship without a crew in Minneford's possession as bailee for hire. It was incumbent on Minneford to show that the damage was not sustained as a result of its negligence. United States v. Newport News Shipbuilding & Dry Dock Co. (The America), D.C. Va., 21 F.2d 112; Lake Union Dry Dock & Machine Works v. United States (The Guard), 9 Cir., 79 F.2d 802. It offered no such proof to explain the cause of the damage and it is my opinion that the entire charge should be disallowed.
On the basis of the foregoing, it follows that Minneford is entitled to be paid an amount computed as follows:
Labor, 2141 hours @ $ 2.85 $ 6,101.85
Materials furnished 2,923.78
F.O.A.B., etc. 626.74
Telephone, etc. 42.97
Total $ 9,695.34
Payment 12/11/47 $ 1,347.54
Payment 1/4/48 2,000.00
Balance due to Minneford $ 6,347.80
8. Miss Martin's Possessory Libel.
In the light of the surrounding circumstances Miss Martin was probably justified and was astutely advised by her counsel to file the possessory libel as a means to obtaining a quick determination of the rights of the respective parties here. Justification in taking that procedural step, however, does not mean that she was in fact entitled to immediate possession of the vessel.
The yard has performed work and furnished materials for which it has not been paid. Prima facie at least, it has a lien for the amount of the balance due to it. Federal Maritime Lien Act of 1920, 46 U.S.C.A. § 971. The fact that its claim exceeds the amount of its proper lien does not extinguish the lien.
I am not satisfied that there was ever any attempt to bribe Walker, the temporary captain and consequently there is no reason to hold that the yard on that account has lost its lien.
Similarly, the fact that the yard appears to have claimed to use an excessive amount of time to perform its work does not seem to constitute such fraud as to deprive it of its right to recover for the reasonable value of its services or as to make its assertion of a lien an act of conversion or its conduct otherwise tortious.
Furthermore, there was no contractual time limit or price limit in such agreement as the parties here made. Any delays or so-called stalling on Minneford's part do not constitute a breach of contract on its part any more than ordering further work stopped was a breach of Miss Martin's agreement. It seems to follow then that the damages which Miss Martin claims to have sustained as a result of Minneford's delay in its work are not recoverable.
In no event may Miss Martin's personal expenses or the cost of hiring an automobile be regarded as proper damages. The same holds true as to wages and subsistence paid to a crew hired while the vessel was undergoing repairs or wages paid to the temporary captain.
Except in certain specific instances, such as divorce and plagiarism suits, expenses of litigation are not proper items of damages. Miss Susan Inc. v. Enterprise & Century Undergarment Co., 1946, 270 App.Div. 747, 62 N.Y.S.2d 250. The sums paid by Miss Martin for attorneys fees, expert witness, an accountant and for photographs to be sued on the trial are expenses of litigation and though burdensome, are not legal damages.
Miss Martin did not make any tender to Minneford before filing her possessory libel. Archer conducted a survey at about that time and even a tender of the amount allowed by him might have been sufficient. In the absence of an adequate tender, however, she did not have a right to repossess the Amiga Mia. The City of Miami, D.C., Mass., 265 F. 427; Benedict on Admiralty (6th Ed.), Vol. 1, p. 30.
In the circumstances, it does not appear that Miss Martin may have any relief under either her original libel or her cross-libel.
Throughout the period during which Minneford had the Amiga Mia under repair, its method of accounting and billing together with the inferior quality of a part of its work could scarcely inspire confidence in Miss Martin. In view of what had taken place, the filing of the possessory libel and procuring an order to move the vessel to a safe berth appear to have been reasonable steps. It appears that the Minneford yard is not entitled to recover what it claimed, but rather that its services are reasonably worth considerably less than the amount of its bills.
Consequently, Minneford cannot be regarded as the successful party here and as a matter of equity, I believe that the costs and the taxable disbursements should be divided equally between Miss Martin and Minneford. I believe that the taxable disbursements should include the expense of the stenographer and stenographer's minutes of the hearings before the Special Commissioner; the expenses incurred in connection with the safekeeping of the Amiga Mia, including towage, wharfage and watchmen (but not crew's expenses) during the period of the vessel's attachment; and the fee of the Special Commissioner.
For the reasons set out at length in this report, I have concluded and recommend to the court:
1. The libel and cross-libel of Rose L. Martin should be dismissed.
2. The Minneford Yacht Yard, Inc. for its services is entitled to the sum of $ 6,347.80 and should have proper decree therefor.
3. The costs should be divided equally, one-half to Rose L. Martin and one-half to Minneford Yacht Yard, Inc.
4. The costs should include stenographer's charges, expenses in connection with safekeeping of the Amiga Mia during her attachment, and the fee of the Special Commissioner.
KNOX, District Judge.
The report of the Special Commissioner in the above entitled suits is an admirable document and it, together with the testimony taken before him, has had my close attention. The result is that I am in full accord with the Commissioner's findings of fact. I am also, with one exception, in agreement with his conclusions. I mean by this that, in my judgment, the costs of these proceedings should not be equally divided between the litigants, but that they, in their entirety, should be borne by Minneford Yacht Yard, Inc. Its course of procedure with respect to making overcharges on the work that was done for Rose L. Martin is little less than reprehensible. Such conduct should find no encouragement here.
For the above reason, I shall sustain Miss Martin's exception No. 23. All others, along with each of the exceptions filed on behalf of the Yacht Yard, will be overruled.
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