THE CITY
OF
ALEXANDRIA.
697
management of the ship, and of thc voyage, in which the master acts as the representative of the owners, and performs the duties and functions of the owners, such as the maintenance of the ship and her apparel in a safe and seaworthy condition, procuring repairs and supplies, freighting the ship, arranging her her times and places of sailing and stop- . ping, and the discharge of all the general duties and legal obligations of the ship to the seamen, for which acts, if negligently performed, the owners are responsible to the seamen injured, they are not responsible for negligence in the mere details of the ordinary work of navigation on board the ship; because these acts are not at all duties of the master as the alter ego or representative of the owner, nor are they acts as to which the owner owes any duty to the seamen. As to third persons, all the ship's company represent the owner in the work assigned them, and their negligence makes the owner liable. As between themselves, no one more ihan another, in the ordinary work of navigation, represents the owner, or performs an owner's duty, and therefore each takes the risk of the other's negligence. In the case of The Bernina, both in the court of appeal and in the house of lords, it is said that no recovery could be had by the seaman against his own vessel. Per Lord BRAMWELL, L. R. 13 App. Cas. 14; and per Lord ESHER. L. R. 12 Prob. Div. 83. Such, as above stated, has been the practice of this court in numerous instances, and should be followed until some different rule is prescribed in the appellate courts. The judgment will therefore provide that the city of Alexandria pay to the petitioners, the master and seamen, the one-half only of the sums respectively assessed and allowed to them as their damages; and to the two inspectors the whole amount, respectively, allowed to them; the onehalf of the latter amounts to be offset and deducted from the amount recoverable by the owners of the Queen for the 108s of the dredge.
THE CITY DEEP-SEA HYDRAULIC 1.
ALEXANDRIA. Co. tI.
DREDGING
(DI.81lr£ct Court, S. D. New York. COLLISION-D..uUGES-COST OJ' VESSEL.
November 25, 1889.)
In assessing damaj!;es on total loss by collision, though the cost of construction is competent evidence where no market value is ascertainable, the whole cost should not be given as damage where the vessel could be duplicated for a less sum, and the cost testified to includes various changes and improvements. S. SAME-Loss <1F PROFITS-PERSONAL CONTRACT. Upon a total loss, though compensation is allowed for the profits which would have been realized upon an exIsting charter of the vessel, because the charter is itself thereby lost, this rule does not apply to profits on a personal contract In which any other fit vessel might be used. '
& SAME.
.
The libelant used three dredges in carrying out a contract wft.h the government for excavating "820,000, more or less, cubic yards of material" in Gedney's channel' and, afror one dredge was sunk, continued the work for 60 days thereafter, they were stopped by the government upon the excavation of 304,000 cubic yards.
FEDERAL REPORTER,
vol. 40.
Held, ,that the libelant was entitled to recover only ',he value of the dredge from the time of ,the loss, with interest; that it could not recover for any loss of profits, (1) because there was no such charter of the dredge lost as prevented the substitution of another dredge; (2) because, th!l contract was substantially fulfilled, within the discretio!lof the government, and, the libelant had therefore ,no certain right to exc/l.vate tIlore,than it did. ' ,'- SAME-COST ·()pRAISING WRECKED VEsSEL-EvIDENOE.
The wreckers to raise its vessel, to be paid a proportion of her value if raised, upon a written oontract executed the day before work was comtestified to a parol modification that they were to be paid menced. The the valli-eo! thelr services up to U the Ilame could be recovered from the defendant vessel; but no reference was me.de to the existing contract, and the libelant did not confirm the same. Hew" that evidence of the change of contraot was. prevail. insuffioient, and that the written
Exceptions to Report on Gee. ..4.. Black, for libelant. R. D. Benedict, Jor respondent.' BROWN, J. Both vessels were' found in fault for the collision in the above case,(31 Fed. Rep. 427,)0.00 both parties have filed exceptions to the report' of tha commissjoner on damages. 1. Value oJ the Queen. The Queen,having been sunk, proved to be a total loss, as her value when raised was less than the costof raising. She. was a dredge ofpeculiaroonstructioDjand, there being no such market as'to establish a market price for such a structure, the valuation reported was based upon the cost of construction. Her hull was formerly a scow, bought in 1885 for $15,180, and she was completed by the addition of much machinery, wood-work, and appliances of many kinds for working certainpatents, through various experiments, changes and improvements, down to March, 1886, when she commenced dredging in the vicinity of Gedney's channel, where she wDsBunk on the 6th of the following September. While evidence of cost of construction was in this case admissible. (Leonard v. Whitwill, 19 Fed. Rep. 547,) the cost plainly is not of itself proof of her actual value at the time she was sunk. The ordinary and natural result of all such expenmetita1building is that the final structure can be duplicated at a price far less than the cost of the original, bnilt in that way. Full compensation,forthe loss,.therefore, so far as respects the vessel, is not to be measured by what the dredge cost to build in that way, what it w.Quldcost to her. There is no <iirect testimony to this point, although one witness said her hull could be replaced for $10,· 000 or $12,000; but the showed that this estimate omitted some parts of the hull, and was not reliable. One qf the libelant's ,chief representatives, familiar with the facts, stated, when visiting the yessel with a. view to raising her" that she was worth about $40,000, and ihis estimate stands uncontradicted. It is repeated in the salvage record. 'J;p.e voucher.s produced for herwp.ole cost and. outfit, ' including all 'changes,aggregateonly about $44,000. The item of $16,180 for hull {Exhibit F.) should be, according tothe bill of sale and check, $15,180. The libelant's witnesses did not testify what the vessel could beduplicated for, and, on being pressed to state her value, stated it only, "in connection with their Upon this evidence I think that, fora vessel built in the way the;Queen was built, no higher value
TlIE CITY OF
699
should be ad9ptedthan$40,OOO. the value put upon her at the time of the loss. There is no reasonable probability, I think, that that estimate would be too low, or that the dredge could not have been duplicated for that sum. 2. Lo88 ofProfita. The libelant claims additional damages to the amount of $16,583, for loss of profits under its dredging contract, which profits it claims might have been realized by the use of the Queen from September 6th to November 5th, i. 1)7 days, at the rate of $292 per day. The testimony shows, however, that her profits during the whole 172 days that she was at -work dredging were but about $142 per day, or less than half the sum claimed. No part of this claim, however, can, I think, be allowed, either upon precedent or upon principle; for the reason (1) that the was not under any charter at the time of the loss, but was simply in. use by the libelant, as any other fit vessel might have been used, inthe execution of the dredging contract; and (2) because the dredging contract was not .lost upon the loss of the Queen, but, so far as appears, wascoutinuedup to the point where the government had the right to treat the contract as completed, and there is no evidence that the work would not have been terminated by the government at the same point, had the Queen been kept at work; in other words, no profits are proved to have been lost. Upon a total loss by collision,the ordinary rule of damages is the value of the vessel with her net freight upon the pending voyage, and interest from the till!e of its probable termination, had the loss not occurred. The llet freight is allowed, because that loss is certain and reasonably ascertainable, and because it is the immediate result of the collision, and its necessary result, inasmuch as no other vessel could be had to supply the place of the vessel lost, and thus earn her freight by completing her voyage. If the vessel is only damaged, the amount allowed for demurrage or detention necessary repairs is the value of the use. That value depends on the business. in which she is engaged; and an existing charter is therefore competent evidence in determining the value of her use, or of the amount of the lQss, if the charter be lost by the detention. Such a loss is not only certain and reasonably ascertainable in amount, but it is also a natural result of the collision, as distinguished from what is special or exceptional; since the chartering of vessels for a pending voyage, or for a subsequent one, is in the ordinary course of the shipping business. The Gorga8,lO Ben. 666; The Belgenland, 36 Fed. Rep. 504; The Argentino, L. R. 13 Probe Div. 61, 191, 197. Compensation for the loss of a verbal charter for the season, embracing many subsequent trips, was indeed allowed by LOWELL, J., in the case of The Freddie L. Porter, 8 Fed. Rep. 170, affirming 5 Fed. Rep. 822. No other similar case in this country or in England is found. It was stated by LoWELL, J., to be "an advance upon the decisions." If such time charters are not special and exceptional, and not unusual in the ordinary course of business, then a loss of that kind would be" such a. Consequence as in the ordinary course of things would flow from the tortious act," and be therefore allowable on principle, if not too contin-
e.,
70(,
FEDERAL
REPORTER, vol. 40.
genii olihe) ..vise not. Mayne, Dam. (4th Ed.) 44; 2 Greenl. Ev. § 256; The Argent't 10, L. R.13 Prob. Div.197; Smith v. Bolles, 132 U. S. 125,10 Sup. Ct. P,...\}). 39. But, however that may be, there was in that case, at least, a ruarter of the particular vessel; and with the loss of the vessel the charter and its profits were necessarily lost, because no other vessel could be legally imposed on the charterer in order to complete the contract, Here there was no charter. Any fit vessel might have been supplied to take the place of the Queen. The work Was in fact continuer' by the other two dredges· for nearly two months after the Queen was s·-nk; and still other dredges might have been employed, so far as appe, :s, in continuing work under the libelant's contract, had that been desiri:ld. This case does not differ in principle from the ordinary case of the loss of something for which the owner had useful and profitable employment, and there only the value is allowed; future earnings are not given. If the hirer of a horse negligently causes its death, the owner recovers only the value of the horse, not the future profits that might have been realized by letting him out, however regular and ascertainable such profits might be. The value is the equivalent of another horse, which the owner may bUy and let out in place of the one lost. See {Jutler v. James Goold Co., 43 Hun, 516. It is the same with the Queen. The supreme court in the case of The Amiable Nancy, 3 Wheat. 546, 560, expressly rejected such profits in a maritime cause, allowing only the value, with interest. STORY, J., there says: "This rule may !tot secure a complete indemnity for all possible injuries, but it has certainty and general applicability to recommend it, and in almost all cases will give a fair and just recompense." Again, there is no proof that on this contract the libelant lost anything to which it had any certain right. To be allowed, in any case, the profit claimed must be based upon some fixed and certain right, and not rest upon any mere discretion or contingency. The libelant's contract was "to deepen Gedney's channel by the excavation of 320,000 more or less cubic yards." After excavating about 304,000 cubic yards, and reaching a uniform depth of26 feet, the government stopped the libelant's work. The contract did not give any legal right to excavate the exact amount of 320,000 yardsj and the termination of the contract by the government when nineteen-twentieths of that amount were excavated, and a uniform depth reached, amounted to a substantial fulfillment of the contract. The gross sum payable for the remaining 16,000 cubic yards, even had the contract given the right to excavate that exact number of yards, would have amounted to but $8,640, and the average profit, according to the testimony, to about half that sum. Had the Queen been at work, there is no evidence, and no legitimate inference, that the work would not have beeh stopped and the contract terminated by the government at the same point. And on the other hand, had the libelant wished to proceed faster with the work after the· loss of the Queen, nothing prevented the hiring of additional dredges in her place. 3. A further question arises as to the expense of raising the Queen. She was in Gedney's channel, and an obstruction to navigation, and
THE CITY OF ALEXANDRIA.
701
therefore required to be removed, and it was justifiable to attempt raising her with a view to repair. She was raised and removed by Messrs. Baxter & Chapman. Had the libelant necessarily incurred any legal charges in this work, it would be included in the damages. But I find that Messrs. Baxter & Chapman did their work of raising and removal upon a written contract, which provided, in substance, that they would raise the Queen if practicable, and bring her to a dock, "for a proportion of her value, to be agreed on between them and the libelant," or, if they were unable to raise her, to be paid "such sum for their services as .might be recovered therefor by the libelant from the city of Alexandria." The Queen was raised, brought to a dock, and found unfit for repair; and, on being libeled for the salvage services, all her net proceeds were paid over to Baxter & Chapman. So far as this contract goes, it is evident that the libelant has incurred no liability or damage in the raising, and therefore can recover none. Baxter & Chapman contracted to look to the vessel alone for their pay, if they could raise her, which they did. It is claimed, however, that after the written contract was signed it was modified by a verbal agreement that the libelant should pay 37 ;500 at all events. But this statement was afterwards changed by the witness so as to mean only incase that sum was recovered from the city of Alexandria. Both the Brainerds, with whom this modification was alleged to have been made, neither testify upon the subject, nor admit the alleged modification. They keep silence, and let Baxter & Chapman establil'h that claim if they can. But the other circumstances are such as to compel me to find against the alleged modification as extremely improbable and insufficiently proved. The written contract leaves no possible doubt that the controlling idea of the Messrs. Brainerd was to incur no further personal liability for the raising of the boat, and that Baxter & Chapman, for their pay, must look to the boat alone, if she could be raised; or, if not raised, then only to the city of Alexandria, and what could be got from her. Tbe work of raising was begun on the morning of September 12th. The contract is dated the 11th September, in tbe handwriting of the counsel employed, and tbe circumstances show that it could only bave been concluded after 4 o'clock iJ,1 the afternoon of the 11th, and after the return of all parties from visiting the wreck. The modification is albefore the 12th; leged to have been made before the work was begun, i. so that this modification, if made at all, must bave been made within two or three· hours after the written contract was dated, signed, and delivered,-a modification, too, tbat directly reversed, as to responsibility, the whole object and scope of the written contract; and that without any fU,rtber writing, or any recall or cancellation of the agreement just signed, or even any allusion to it. If the Brainerds bad on oath confirrnedthis remarkable transaction it would bave been difficult enough to believe it; to do so while they keep silence, even in their own suit, and in no way commit themselves to any such modification, or to any existing liability on their part, is impossible. Written evidence, moreover, would be of little value, if it could be avoided like this upon one-sided testimony,
702
nnERAL REPORTER,
and uqder suoh circumstances. I- do not find any vouoher showing payment ,by,the libelant to Baxter &.Ohapnian, beyond tbeproceeds of the Queen: herself. The record of the salvage suit in New·Jersey, by inoreasing the inconsistencies in the evidence,and by its failure to show that the Brainerds ever agreed to incur any individual liability to Baxter & Chapman for raising tbeQueen, confirms my disbelief of any such modification of the written contract.lIn the absence of more convincing proof, the written contract should stand. Tbe testimony as to alleged modification should be regarded as nothing more than the imperfect recollection of the witnesses of what may have been said in the course of the negotiations, but which was superseded by the written agreement as finally concluded late in the afternoon of September 11th. There are certain other expenses which the libelant incurred and paid after the Queen was raised, in order to ascertain whether she was worth repairing. Though 1 have some doubt as to the necessity ofsome of them, I allow, including interest to date, $1,418.50. The damages will be: (I) Value of 'Queen and outfit, with interest from September 6. 1886, to.date. · (2) Subsequept expenSeI and interest. · ·.· · $47.700 00 1,418 50
·
'49.11850
The other exceptions are overruled.
THE WYANOKB.· THE RUTH DARLING.
BUCK
et al· .".
THE WYANOD.
(Dtstrioti Court, 8. D. New York. November 9, 18139.)
t.
COLLISION-Faa-DUTY Oll' STBAM1Ill\ TO REVBRSE.
A steamer; navigating in a dense fog, at night. on the open sea, at the rate of from seven to ten knots per hour, being two-thirds herfull speed, heard voices nearly the proximity of another vesseL Hetd, that it was her duty to re. ahead, verse, as well as, stoP1 her engines, and not to alter her helm without reversing, un· til the locatiOn and airection of the other vessel was ascertained with certainty. Heta, al.Bo, that she was in fault for rinlring up full speed again after OJlce stopping, without reasonable assurance that the ({anger was past. VESSEL-MeCHANICAL FOG-HORN.
A sailing vesB8llB bound to have, and llse in a fog, mechanical means for sound. ing her fog-horn. Six knots III inlmoderate speed for a salling veBBel, under nearlyfull sail, in a dense fog, at night. .
SAME-SPEED Oll' SAILING VESSEL.
SAME-8PEEl) Oll'. STEAMEl\.
Seven knots, in a dense fog, at night, is immoderate speed for a &teamer whose full speed lB only ten or eleven knots.
In Admiralty. Carter, Rollina Biddle
Action for damages by collisjon. Ledyard, for libelants. Ward, for claimants.
'Reported by Edward G. Benedict, Esq., of the New York bar.
