7'HE CITY OF CHESTER.
that "though the rate of 4d. per ton is customary in these charter-parties, it is probably in many cases a liberal estimate somewhat in the nature of a penalty, which the charterer can avoid by the exercise of diligence." 'the damages in collision cases are to be fixed upon the basis of restituo in integrum. Theamount to be allowed for the detention of the vessel is the value of her use. WilliamBOrL v. Barrett, 13 How. 101; The Potomac, 105 U. S. 631. But the stipulations of a charter to third persons, as respects demurrage, when offered by the owner in his own favor, stand in no better position, it seems to me, than the owner's declarations, which, though competent against him, are not legal evidence in his own behalf. The Hermann, 4 Blatchf. 441. For the same reason the customary rate fixed by the regulations of the Produce Exchange of this city are not of themselves competent evid<Dce. On examination of the testimony I am satisfied that the commissioner properly took into consideration the claimant's evidence as respects the value of the use of the vessel. This evidence was competent. The Potomac, supra; The Heroine, 1 Ben. 227. Taking into account all the expensesof the ship and crew, the necessary repairs, and the ordinary depreciation upon her voyages, I think the sum of $40 per day for this bark of 740 tons register a fair and just allowance. Although the rate (lharged by the stevedore was somewhat higher than in ordinary cases, in view of the special circumstances which affected the reasonableness vf the charge the commissioner's conclusion should not be disturbed. Some additional charges for an unnecessary third captain as surveyor, an unreasonable allowance to the diver, and a brokerage charge in addition to the usual percentage of 5 per cent., should have been disallowed. The (lase of The Williams, 15 Fed. Rep. 558, is not applicable to an expense actually and necessarily incurred by the vessel. These, together, offset the sum of $40.10 that should have been allowed for wharfage. The other exceptions I cannot sustain. The amount reported should therefore stand without change. By the practice of this court interest is allowed, and the report should therefore be confirmed. I cannot find that the litigation has been so unreasonable as to change the ordinary rule as to costs.
THE CITY OF CHESTER.· HILTETRANT 'D. THE CITY OF CHESTER.
(District Oourt, S. D. N(f/J) York. March 14, 1888.)
<:lOLLIsION-MEAStrnE OF DAMAGES-ACTUAL COST OF REPAIRS.
When a vessel, damaged by collision, has an estimate made of the cost of repairs at the place of the injury. but is afterwards repaired at another place at less cost, the latter amount is the measure of her recovery. The rule in insurance cases. that the cost of repairs at the. place of injury or thll nearest port is the -measure of damage, does not apply to such case as this.
-Reported-by Edward G. Benediot, Esq., of the New York bar.
·: FEDERAL BEPOR'rER.
InAdmiralty. ,'00: exception to Carpenter MOM,: Jo'r.Jibelant., Wilcox, Ada/1/t8. for respondents.
ported by the surveyors. The boat was thereafter taken up the North river to Rondout, where the repairs :were completed at a considerably less sum, which sum the cOInmissioner has allowed. The libelants have excepted on the ground that, as in cases of insurance, the owner is en· titled to have the boat or vessel repaired at the place of the injury or the nearest' port,and that the cost of repairs at that port is accordingly the legal measure of damages without reference to the cost at a more distant port, whether less or more. SecOenter v. ht8urance Co., 7 Cow. 564, 580; Insurance (l,o. v.Southgate, SPet. 604, 609; The Catharine, 17 How. 170. Wba.tever:may be the rule as regards insurance upon ocean voyages. it is not, Lthink, appllcablelo cases like the present. Complete .restitution is the extentof the damage recoverable. The Potomac, 105 630, 632, and cases there cited; The Bnltimore, 8 Wall. 377, 385, ,3,86. The libelant will obtain in the amount reported by the commiscomplete:r:estitution. To allow more would be to award him a 'profit for voluntarily taking, his vessel to another place for repairs. ;Moreover, tolldmit such 11 rule, and to award more than actual indem.nity:on the, ground that the, estimates at the. port of call ision exceeded ,tbe. ultimate' cost of repairs atanotber place, would be extremely impolitic.,as offering the strongest ti:lmptation to exaggerated estimates of damages, and to fraudulent litigation.. . So manifest are the risks of such :a,coUrse, that in the case of The. (Jatharine, supra; it was held by the su,. preme llQurt that 'Where the repairs had been made,and the cost of mak'ingthetu the estirn.ates of experts as to the probable expense ;Qfrepairs shoJJJd, not even be received in evidence, beeauseunnecf1ssary. . ,As a general rule, no donbt, the person damaged has the right to have hia.boatrepaired .at the place where, the injury occurs. But the duty not to incur unnecessary expense is well settled. The Baltimore, 8 Wall. 377,386-388; Warren v. Stoddart, 105 U. S. 224,229; Dolph v. Laundry Co.,28 Fed. Rep. 553, 558-jThirTlw8. P. Way, Id. 526. The person sustaining damages by collision is, therefore, bound to act with reasonable prudence as respects the repairs. Where the expense of repairs at the place of collision would be exceptionally great, iJ.. the owner of his own motion takes his boat for pepalTs 'to another place less expensive, I see no good reason why he should repoyer more than,his actual loss, including the time and expense of going from the aile place to the other. And of the pnrty infl1\1lt,\Vjth atendel: or upon ,within reasonable I have qo doubt tbat;acqp.iescenoe would· be theowrter's ,legal obligation. The surveys in this case were;' as preliminary towards making the repairs, ana sholild therefore be allowed. If they were an'd had Motb.er. \lse than .as a
A survey was hadhete,'a.nd an estimate of the cost of the repairs re-
B:aoWN, J.Thecollision in this case was within New York harbor.
mere estimate of the amount of the damage, they would not in this case be allowed, because the:duty to repair,rather tb.$ abandon, was obvious. The exceptions are overruled, and the report is confirmed.
THE STELVIO. February 1, 18.,:.
(Di8t'l'ict Oourt. E. D. Ne'lll York.
SAlIIE'""'ExCESSIVE CLAIM AS PUNISIDrENT.
In Aliiriiralty. On exceptions ,to commissioners' report. Rep. 509." . Ufl,o, Ruebsa;men &; libelant. E. B. Cbnv6rs, for claimant.
See 30 Fed.
BENEDICT ,J. I find no occasion to disturb the findings of'the commissioner as to the amount of .damages recoverable in this case. Upon the question of costs, I remark that it is plain that the claim of $20,000 put forth in the libel was excessive. The recovery is little over $500. To the suggestion that when the libel was filed it was not known but that the damages would be in the neighborhood of the sum claimed, is that the libel from Saturday t9 Monday the amount of the loss could have been asoertained with reasonable certainty to be less than $1,000. The delay could have been had without risk of loss to theJibelallts. To the other suggestion that if the claim of $20,000 was, in .e;cyI'S, is excused by the unlawful action of the ship's 0'Wner in refusing to deliver the'oranges on Saturday, it is sufficient to say that the law does not permit the insertion of an excessive and exorbitant demand in a libel against the ship by way of punishment for previous wrong-doing on the part of the ship's owner. Let the exceptions be overruled, and a decree entered in favor of the amount reported by the commissioner, without costs.
JReported by Edward G. Benedict, Esq., of the New York bar.