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March 18, 1948


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:

 1. Statement.

 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 ...

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