The opinion of the court was delivered by: INCH
To the Honorable The Judges of the United States District Court for the Eastern District of New York
Commissioner's Report on Damages
By the interlocutory decree and order of reference entered on March 22, 1951, this matter was referred to your Commissioner to ascertain and compute the amount of libellant's damages. It is provided by the decree that libellant is to recover from Card Towing Line, Inc. claimant of the tug Rowen Card 90% of its provable damages without interest and without costs to date but with costs which may be incurred from the date of the decree, and that the libel and impeading petition of Card Towing Line, Inc. against the United States of America be dismissed with prejudice and without costs.
Your Commissioner has taken and filed his oath of office with the Clerk of the Court.
The libel was filed for damages allegedly sustained by libellant's steamer Charles L. O'Connor in New York Harbor on the morning of February 21st, 1945 following a collision of a tow in charge of the tug Rowen Card, owned by claimant Card Towing Line, Inc., with the steamer. On March 13, 1953, by order entered on consent, Honorable Frank J. Parker, United States Attorney for the Eastern District of New York, was substituted as proctor for libellant in the place and stead of Macklin, Speer, Hanan & McKernan, Esqs.
There were three hearings before your Commissioner, attended by Benjamin H. Berman, Esq. on behalf of Honorable Frank J. Parker for the libellant and John J. McElhinney, Esq. of Foley & Martin, Esqs. on behalf of claimant Card Towing Line, Inc. Libellant's Exhibits 1 to 8C inclusive were received in evidence and, together with original hearing minutes of March 27th and 30th and April 8th, 1953, memorandum and reply memorandum on behalf of libellant and memorandum on behalf of claimant, are filed herewith.
Prior to the reference, the libellant's claim for physical damage to the S/S Charles L. O'Connor had been adjusted and payment had been made to libellant, so that the sole issue before your Commissioner related to libellant's claim for detention of the vessel resulting from the collision in suit.
It is the libellant's claim that the period of detention was eleven days, seven hours and forty-five minutes, stated to be from noon on February 23, 1945 (when the discharge of her coal cargo following the accident had been completed) to 6:00 P.M. on March 6, 1945 (when the vessel reached the Battery, the point of deviation, after the completion of repairs). This period actually represents eleven days and six hours.
Claimant, Card Towing Line, Inc., points out that while the proceeding is now being prosecuted in the name of the libellant, it appears, from the substitution of the United States Attorney as proctor for libellant that it is being carried on for and on behalf of the United States, which was the time charterer of the vessel at the time of the accident. Claimant takes the position that the time charter is irrelevant and immaterial, that the charter hire set out therein is not the proper measure of damages to which libellant might be entitled and that neither libellant nor the United States is entitled to any amount by way of damages for the detention of the ship during the repair period.
Your Commissioner finds and reports the facts as follows:
1. The S/S Charles L. O'Connor was a coal collier of dead weight capacity of 4239 tons and, on the date of the accident, was owned by libellant.
2. On the morning of February 21, 1945, laden with a cargo of bituminous coal consigned to Bath, Maine, she was lying in Liberty Anchorage, Upper New York Bay.
3. The collision in suit occurred at 10:20 A.M. on February 21, 1945 and following the accident, she departed from the anchorage at about 5:40 P.M. and arrived at the Consolidated Edison plant at 42nd Street, East River at 7:20 P.M. when discharging was immediately commenced and was completed at noon on February 23rd, whereupon at 12:25 P.M. on the same day she proceeded to Tietjen & Lang Drydock, Hoboken, N.J. where she arrived at 2:20 P.M. Repairs were commenced on that evening and were completed on March 6th, the vessel's departure time from the shipyard being 5:45 P.M. She arrived off the Battery at about 6:00 P.M., the termination hour of detention claimed by libellant.
4. The principal physical damage was about the stem and adjacent bow plates and The O'Connor was undergoing repair of those damages during the entire period while at the shipyard. No repairs other than those made ...