vol. 44. AMERICAN CABLE
Rv.
CO. 'II. CITIZENS'
CO.te
ale
(Circllilt CO'Uh't, E. D. Missouri, E. D. January S, 18111.) PATENTI POR INVENTIONS.,...EQOITY JORISDIO'1'ION-DAMAGES.
A bill for infringement filed on the day before complainant's patent expires, and which asks no injunction or other special form of equitable relief, is obviously intended to obtain damages and profits only, and cannot be maintained, since the proper remedy is at law.
In Equity. Samuel N. HoUiday and Henry L.· Dawes, Jr., for complainant. Frank, Dawaon Garvin, for defenqallts. THAVER, J., (oraUy.) The bill in this case was filed September 30, 1889, the day before the patent in suit expired; it having been issued October 1,1872. The bill made no case for an injunction pendente lite, as the patent would expire on the day after it was filed; nor was one applied It was obviously filed to obtain a decree for damages and profits only. The demurrer must be sustained, following the rule announced in Root v. Railway Co., 105 U. S. 189, that equity only takes jurisdiction of suits for infringement when the bill shows that complainant is or may be entitled to an injunction, or some other special form of equitable relief. In the case at bar it, is apparent that complainant was not entitled, when. the complaint was filed, to any species of equitable relief. Its remedy was solely at law. Judge BLODGETT has adopted the same view in the case of American O. Ry. Co. v. Chicago C. Ry. Co., 41,Fed. Rep. 522, and this court had occasion to consider and decide a kindred question in Waahburn, etc., Manufg Co. v. Freli'man Wire 00., rd. 410. The demurrer is sustained, and the bill dismissed. I ·. , . . ·
BOWERS
et al.
'II. THE E'UROPEAN,
etc. ,
(District Court, S. D. Florida. December, 18110.) SALvAaiD-FIREMEN
Where a steam-ship with a carg-o of cotton on fire came into port, and, in the absence of any private means, the fire department, consisting of volunteer fire companies, whoreceive.no compensation from the city, were called upon, and an une derstanding had that they would be paid for their services, and on account of their presence the steam-ship was permitted to' come to the Wharf, and the firemen, with two,steam fire-engines, were.engaged;flve and a half days putting out fire and disarging .burning' cotton; a. salvage of $12.000 on 0. value of .about $300,000). glvinjl' the firemen about $65 apiece, was ginn. The Crnul of The Maru Frost,» WoOd, 806, examined.,and . C81!llaQU8 b1J. the Coun.) ch.
FIRE ON .SHIP.
In Admir81ty.
i,
BOWERS V. THE EUROPEAN.
485
L. W. Bethel, for libelants. G. Bowne Patterson; for claimant.
LoCKE, J. This steam-ship, laden with about 6,000 bales of cotton and 24,000 bushels of corn, bound from New Orleans to Bremerhaven, when about 60 or 70 miles to the north-eastward of this pori, Key West, was discovered to have fire in the cargo in the forward hold. The master did everything in his power, but could not extinguish the fire, and turned back to port, where he arrived at about 4 or 5 o'clock in the afternoon of the 3d of November. He made application to his vice-consul, and to Lloyd's agent, who assisted him in procuring the only steampump, available, belonging to private parties, and chartered two schooners, one to take the pump off to his steamer, and the other to recehre cargo. But it was soon found that it was impossible to get the fire under control with the pump procured, and at about 2 o'clock .the next morning it was decided to make application to the fire department of the city of Key West for aid. It had been found impossible to obtain permission to come to a wharf on aceount of the fire, and the steamer was lying off in the harbor. The consul and Lloyd's agent, upon the request, and in behalf, of the master, called up the chairman of the fire committee of the city government, and inquired if the services of the city engines and fire department could be procured to aid in extinguishing the fire. It appears that the board of city commissioners had been in session at the time of the arrival of the vessel in the port, and had resolved that, in event the services of the fire-engines were necessary and requested,the request might be granted, if private means could not be obtained; and the matter was left in the hands of the chairman of the committee on fire matters, to whom application was now' made. In soliciting the aid of the fire department, it was asked upon what terms the firemen would work, and the reply WfiS, "Upon the same terms as was paid in the case of The SanJuan." That was a dollar 'an hour fGf the firemen that. worked. The reply was that that was perfectlysatisfactory, and it was requested that the engines and firemen be called out as quickly as possible. Upon condition that the fire department should be on hand to prevent further danger, the ship was permitted to come to the wharf. An alarm was rung, two steam fire-engines and nearly the entire force of firemen came to the wharf, to which the ship soon came, when they commenced work at about 4 o'clock in the morning of the 4th of November, 1890. They cut eight holes in the deck, and commenced pouring in eight streams of water, but after some five hours dedded that the water had found channels throngh the cotton to the bilge of the ship, and was doing no further good, when the hatches were removed, streams played upon the burning cotton, and the firemen commenced discharg. ing cargo. They continued unceasingly, discharging cargo and playing water upon the bales as they carne out, for five and a half days, or until 4 o'clock Sunday afternoon,when it was decided that the .fire was en· tirely out, and they ceased their efforts. It is claimed in the. :libel, and shown in evidence, that 178 firemen
ftDElUL REPORTER,
vol. ,44.
were engaged in the work, and were inattendahce, ceptions, the entire time; that, when notaotually atwork,they ,slept on the dock, under a tent or some shelter, and were only absent from ,th'eplaee while they were getting their meals; thatfof tM, first 50 or 52 iholU'S it was Jmpossible for them to work morethil.ll 10 or 15 ,minutes.at a time in the hold, and the entire number were constantly ready,when called upou, to relieve those coming out. 'Afte,r,that the smoke beoame less severe, and they were,:able to re-' main longer, and make regular gangs and reliefs. They then had one hour in the hold, or on, duty, and two off; sometimes two hours anI and. fOllroff; but it appears that, as a general thing, the entire company was in attendance, ready to respond to a call; all of the time for abou,t 130 hours, although a comparatively small portion of ,them could work at a. time.,' 'fheJaIJor was severe and disagreeable, the smake was dense and the cotton bales full of fire, and liable to burst into flames at any time when exposed,to the air. There were two physicians in at; tendance much of the time, and one constantly, to bathe and attend. to the 'eyes of those coming out of the hold. Burns and bruises were frequent. There is no complaint but what the labor was performed as rapidly as the circumstances would allow, and completed with all the dispatch possible. Of the cargo, all in the forward compartment of the ship, about 4,000, bales, were taken out. The fire commenced low down ,in the cargo, and must have been burning some days. Some of the bales of cotton Otis impossible to tell just how many) had been entirely consumed, about 300 partially burned, some of them very badly, and a large number of the 4,000 damaged by water. About 11,000 bushels '9fcorn was so damaged by water that it had to be sold. The ship's decks' forward of the foremast and the berths under the forecastle head were entirely burned out, and the forecastle head and badly damaged. Otherwise, it does not appear that the vessel was materially injured. The steam fire-engines were ·owned by the city. There were two of them in attendance, with steam up, for the entire time of the service. The city has been paid $1,200 for the use of the engines, or 85 all hour for each. The chief of the fire department acted also as fire-warden, and raceives$25 per mOnth for his services. Each steam-engine has an engineer and driver, supposed to be constantly in attendance at their engines, who arepnid monthly wages. Aside from these, the fire department, or the entire force of firemen, consists of volunteer fire com" panies,wh2 receive ne compensation for their services whatever, whether called' toa fire or not. Their services are entirely voluntary and gratuitous, and there is no employment contract or agreeUlent between them and the city government, further than is implied by, their organThey have on several occasions been called upon to extinguish of. vessels arriving in' port, and have always been fites' in OGmpensated .for such services, although there has never before been any agreement made; but they have been paid a round sum· ·"In.this'daSe the libelants sue upon a'contract, alleging that one was
BOWERS 'l.l. THE EUROPEAN.
487
made between Mr. Taylor, H. B. M. V. Conaul,and Mr. dent agent of Lloyd's, acting for and in behalf of the master of theship, and Mr. Fulford, chairman of the fire committee of tbe city, Mr. Bowers, chief of the fire department, and Mr. Walton, secretary, acting for. the firemen, which libelants construe into being for the payment of one dollar per hour for each one that worked and wae in attendance, for the, entire time engaged during the service, whether actually at work or 11ot" the same as was paid in the case of The San Juan. . In answer it is alleged that, when informed that the firemen expected one dollar an hour for their labor, the same as was paid in the Spanish . ship San Juan, no objection was made, as the ship was on fire, and their services were indispensable, but that the libelants never worked the. number of hours claimed. It is also answered that the libelants, as. firemen 6f Key West, while in the performance of the services were only, acting in the line of their duty as such firemen; that as such they bad no authority to make contracts or demand compensation for theirserv, ices; that the mnnicipality of Key West has not authorized them to. bring 'suit; and that no service they have rendered can give them on thevessel, enforceable in admiralty by a proceeding in rem. This defense is upon the assumption that the firemen in no way ex· ceeded, in the services rendered, the duty they owed the public through their character as firemen, alld in the performance of that duty they had no power to make contracts or demand compensation, nor had they poWCl1 to render a salvage service, Or demand compensation for services as such. Theoa.se, therefore, depends entirely upon the duty of the libelant!!. as firemen, towards tbis property. between the property and anyone else; this would unquestionably have been a salvage service, and any con-:: tract, alleged or proven, woUld have been considered in conoection with the idea of the condition of the property at the time· . The question ofthe relation of firemen to property in jeopardy from fire; on board vessels is not free from difficulty. The case of Davey v. The Mary Pr08t, 2 Wood, 306,has been relied upon io support of the proposition that iutbis case the tbe firemen was such as to preclude the idea of a salvage seryice, or their power to make a contract to perlorm such a ice, and receive compensation therefor. If this view is accepted, it may be urged aS8tronglyagainstthe suit on a contract as it could he in for salvage eo nomine; for what a person is bound to do without compen; sation, the making of a contract under circumstances of compulsiOI! cannot rele.ase him from doing, or give him greater rights for pay·. language of the learned justice in the case cited, as well as that case or The Suliote, 5 Fed. Rep. 99, in which the Slj.me pressed, although the question was not before the court, that, in· the opinion of thl;l court, the circumstances of those it directly within the positive duty of the firemen to extinguish nre. These are the only cases in which such principle is deplared j and while. in viewofthe circumstances. of those cases, such de,cision ally a,.pp\'o\red, yet the: question remains whether the iI!; th.e circnmatancesmay not jU'stifya different conclusion that
488
FEDERAL REPORTER,
vol. 44.
therein., In the case of The Blac1cwaU, 10 Wall. 1, it is stated in the argument that the firemen made no claim for salvage, because they were paid by-I the city; but the court, in its opinion, says: "Pilots under some oircumstances may become salvors, and cases may be imagined where firemen perhaps might come within the same rule;" and stl'Ollgly iIitiri'lll.tes that the moiety of the salvage earned by the firemen might be paid them, upon petition, out of the funds in the registJ'Y of the court. It is true that these declarations and intimations are outside the case, anCt cab have no further weight than as expressing the views, at the time,of the highest court in the land upon the subject; but they certainly have as much weight and au'thorityas do the declarations in the , case of The In the case of The Huntsville, cited in Cohen's Adilfiralty, 74, a full report of which case I regret that I have not access to at present, it was held where the fire in a ship ashore was guished by the firemen upon the understanding that the owners of the vessel, and not the city, were to pay the expenses, they were entitled to case of The Ethiopian, Mitch. Mar. Reg. salvage comlJensation. In 1883, p.,589, where the cargo was on fire, salvage was awarded, to the Gravesend fire brigade, who aided with one of their fire-engines. These cases satisfy me that it has not been established, as is contended herein, as it principle of law, that under no circumstances .can firemen earn salvage, but that the question depends entirely upon the circumstances of the individual cases. Not everyone is bound to render gratuitous service, even if it ill his duty to do what is in his power to save life and property from marine disaster. It is certainly the duty of pilots to do what they can to assist vessels in' distress,but courts have repeatedly held that the circumstances of the case would justify a salvage award. The licensed wreckers of this district are bound by their licenses and the rules of this court to proceed to the aid of any vessel in distress, but the idea of a gratuitous service has never been contemplated. Government vessels, omeers, and men of the coast-guard, and even agents of underwriters, have been held to be entitled to salvage whenever the services they render exceed in the least the actual duty they are bound tl') perform gratuitously. Did the service rendered in this case by libelants exceed the duty they owed this property? or were their relations to it such as would of right demand such 'services gratuitously? The language of the learned justice in the cases of The Mm'Y Frost and The Suliote shows plainly that he considered that in those cases the firemen did no more than their ordinary duty, and no more that they were bound to do; and upon that consideration the conclusions were reached. In the case of The Suliote he mentions the firemen being employed to do this very duty. There had been no employment of the libelants by the city, or payment for their services in this case. ,There wafl only their voluntary organization, aJ;ld their holding themselves in readiness to extinguish fires. Was it ever contemplated in such organizing that they assumed tbe duty of performing such 'services as were rendered in this case? The firemen were in duty bound tcHlo ttll:tnatthey had ever impliedly agreed t() do; hilt had they
BOWERS V. THE EUROP]i;AN.
4S0
by any implication to do this? There was no privity- of interest betw('en the owners of this property and libelants. The vessel did not come here to receive cargo, or as to a port of discharge. She was ill no way connected with the business or interests of the city. The fire did not originate in the city, but at a great distance from it, and was voluntarily brought within its limits after it had become an element of danger. It did not threaten the city, or the property of any of its citizens, as the vessel was lying in the stream at such a distance that, had she been entirely consumed l no harm would have come to any building or wharf. The labor was not of a few hours only or Ipss l such as is gratuitously rendered to the property of the citizen by firemen without, materially interfering with their means of livelihood, but the service from the outset contemplated days and nights of arduous labor l not free from risk and danger. Not only did libelants act as firemen in extinguishing the fire, but in order to do so effectively it waf> necessary to discharge hundreds of bales orcotton, which discharging was done by them. Had it been suggested to the firemen at the time of their organizing that they would be called upon to render such services as the present, and be bound to them would have joined the render them gratuitously, how many force? Not one, I am satisfied. However so ready they might be to perform the ordinary duties of a fireman l and to respond to all usual calls, there is not one but would have declined such service as' this. I see no reason in law or justice wbythe owners of tbis property could demand, under the circumstances l gratuitous exertions from the ·firemen in this case, any more than from any other class of persons in the city; and it resolves itself into a question of policy. In the case of The Mary Frost it is remarked that "an attempt to make the performance of this duty a ground of salvage, when it is a ship that takes fire, is against wise policy." Would it be wise policy to say, by dismissing this libel, that libelants, if they continue their organization and character l have no right of compensation for such services? That so long as they are firemen they are bound to extinguish the fire in the cargo of any vef'sel arriving in this port, and do so gratuitously, regardless of the circumstances of the case, or time or labor required? How long would tion continue in event of a demand for their services in another similar case? Can it be doubted that the companies would be disbanded, and their position as firemen given up, before accepting such duties and obligations; thus leaving not only vessels on fire which might arrive in this port without means ofa.ssistance, but the city also unprotected? Is it not a wiser policy to declare that it is the province of the courts to accept jurisdiction, and determine the rights between the parties in view of the circumstances surrounding each case l than to declare that before them firemen can have no standing in a salvage suit, either by contract or as salvors? The danger to commerce in this respect cannot' be great, as is plainly sbown from the very few cases in which firemen ever sumed to pose as salvors. This is a class of firemen's work generally performed by private parties l and undertaken by firemen only when no other means is available, or the fire is jeopardizing other property. The
:49.0
REl?OBTEB.
yol. 44.
that the city engines and fi.re dehe· used in thiacase when no private means could bo fololnq. !sufficient; shows the. epiriHbatpervades city governUlllntsin relation t08uoh mMters. W¢.rethere: nO mellnsby which rights :Q{ firemen (:Quld,oo inquired· into in/such caae8.;·they.wQuld. an,d not without reason, .lIindouRtedly refuse to reader, selivicess;uch as the circumstances show these ·to:hll;ve.been; when called llpon.forthem.There seems to have been no refusal.bnrthe pl),rt of.the.J.ibelantsito· go to work, nor does it appear that .thaYi·or,their.l'epresentatives\wereithe first to make a dernallflfor cornpen,It ,was only. llpqn the inquj,ryof the applicants for assistance, and fheiJ: asking Jori ti3rmsjthatany were :named. .lnThe San Juan it does not o.ppeartbat: any contract, agreement; 'or terms were demanded1but they IIlPe,ept8d what was paid, tham.'Thj;leflse is' so entirely differen.tfromTM #rlry JiiT()8*i rthat.while. I cordially;: sp.prove the, deciElion, in. that. case,. I <C8Inlllot:cPlll!lidet: it binding in this.iln that case the ship JClJ,rgQI frQutihe city,1 hlld beco:ome t!)ie. time a portion of its ,cpmlnercial identitiedwi.th':lts iute.rests.· She ,wasJyingat.awharf city itself. ,The Jabol' 'of the ·firemen OCcupied 'but Q.1s!aoJ1t:tirtvl. ,f\mhwas neither rnoriarduous, ,and n ustfjlWhserviee ,11.8 was ,f\.bsollJ1telynecessary· for the, protection iof lthe·citJ land lite propertyi., statement would apply: in :the,case of 17m In of service isditfl(rent. j.ustme in; 'says: wEhe, 'question , 1111 my' opinion it is Theisame '<1pes.tion, ,tkiB is· aoose for. salvage,andI.muat sSYit:bat
resolution. or 'the
(opinion
is.. -", ;;::
,I-
i
i ,:
'
.
I'." ' ;. ':
a ship taking, fire in a harbor or at a.dook, while recooiY:ing.or·rlisoharging: c!J.rgo,; and connected by her; in an)' ;way.lwith tbe,interestaOf.tbeoitYi or where any portion.6f the city might ,be ·injeQpa:rdyj is not unde.r consideration. and nothing .berein said is .intended as Javoring in any :wayasalvage claim in such ease. I i.Deci.dingthat this may; be cOl1sidared a salvage service .decides that in ,rendering lUhe firemen: beyond their ordinary duty as firemen of the .oitYil}Vla.ich disposes of ,the o1:\iection· to their suing in their own 'and, without the consent of ·the muni.cipality. liThis:8uit, however,is·.. brought upon a contract, and not Jar salvage· .' AJ eontract for the performance of II salvage service may be sued lwon as such, ;and· either declared not proven ,or set aside as unreasonable, and declared oo'nomine. . The contract, as alleged in the libel, is not of its terms. Libell1r.tsdemand pay· fot th.e'en;tire. mumberc:employed, for the entire. time engaged inl the of, the bumber of hours they each actually performed .lo.m:m..: ,', Therres.poQdentsays ,such was not the understanding, but that ",ctool,number,,ofhOlld!$,worked.. by. each one'onlywas to be paid for at: th9<t,rate.: Neithet .party, at tba,Uill,leseems to·havekflOwh the. terms ,the :Wllllilller ofworki on the San Ju,an\ .the referred .to in., tbev.$JJ.eged agreement;.: J: 1Mb., Fdgarty' only knew' t;ha, t the! 'I1lilder}Yiithi lihel aU\!ooiIntitpa.id,;aod..considered it; reasona't,
:SOWERS 'D. THE EUROPEAN.;
ble. Nothing was said by either party about thenumher of men toibe' employed. ., . . . While perhaps the rate demanded might·;not be oonsidered sonable, even with the construction placed upon it by the libelants:;. 'had: only the necessary number of men been employed, the much larger num ber of men than could be of any service being permitted to joihin the work, makes the account unreasonably large. The condition in' which the property in regard to which the contract is alleged to have! been made, was at tht:l time, as well as the lack of mutuality of under-; stan'ding between the parties as to its terms and construction, satisfy' me-' that all consideration of it should be put aside, and only a question of salvage eo nomine considered. It is impossible to determine the number; orhours actually worked,even should the construction ofthe respondent! be accepted as to its terms-; and the construction of libelants wO\lldgive an amount larger than would, be considered a reasonable salvage... :ftut·, it must: be considered asa salvage service of low merit. The time oecn·' pied and labor perJormed were considerable, but these constitute 'butl minor elements in such a service. The exposure to personal althQugl,1 something, was not great. The services were only valuable by' means of the fire-engines, which have been paid for. The libelants· had; no property hazarded. They lost no lime in going or waiting, as the ordinary licensed wreckers of district soorten do. Yet the property was in great peril, and, so far as has been shown, no other means available. The fire-engines were u!'leless without libelants. The property has been saved and restored to the owners 'inacomLJaratively undamaged condition. In The Blac!cwall,.:8'ItprfJ., the supreme cour! approved as a fair salvage 10 per cent. where a vessel on fire ill the harbor was extinguished with comparatively little labor and time. In The Sluinte, 8Up'raj the'ap"' peHatecourt allowed 8 per cent., orhearly $20,000,011 a value yroba,9ly not equaling that in this.case. In.the case of The Prairie Bird, arriving June, 1875, in this port with a cotton cargoon fire, much in of the vessel in the case at bar, although perhaps in some respects'the danger was greatl'r, she being a woouen ship, with no nulk-heads,$14,OO(}' was given oha valuutionof about $100,000. Ad. Rec. S. D,!Fla. vol. 1 h p:78. In the,case of TheAlbert Gallatin, which took fire with a cargo of cotton in Mobile bay in April, 1868, on a value of $346,000, saved by steamers and tug-boats, there was allowed a salvage of more than $84,000, or about 25 per cent.; and on the Thalia and cargo, also Was giveIl:on onfirtJ the same month,in the same d\strict,over a value of $113,000 saved. Ad. Rec.S. D. Fla. 18tHL In The 16 l!-'ed, Rep. 486, 15 per cent. on the vessel and 25 per cent;m1 the cargo was given for e;xtinguishing fire ,on aship laden with na'pbthd.'I.In '!he Htar.. 35 Fed. Rep. 793, $8j350was given for parlial1y,Raving the. vessel, when the amount actually rsaved was e8timated,at from $22 j OOO to $29,000. In The Florida and The Haward Drake, where the salvors risk, awl were occupied put abotlt 6Jper cent. was detlmed a proper salvage to the libelants, although a:portiont
492·
ofthe salvors had been paid by the owners. 22 Fed. Rep. 617. In The Bay of Naples, ante, 90, (recently decided by Judge BENEDICT, in the district of New York,) a salvage of $20,000 was given on a valuation of $100,000. In all of these cases the salvage service was the extinguishing of fire, bqtthe circumstances surrounding each case are so different that none can be treated as a precedent. In this case there has been no statement, allegation, or estimate of the value of the property, but its character, nature, and condition have been testified to, and, for the purpose of . determining an award, I consider it may be safely taken at from $275,000 to $3'00,000. Such approximate valuation will be sufficiently near, as it is not necessary to give a certain percentage. I consider $12,000 will compensation for the time and labor of the libelants, and not be a an unreasonable burden upon the property, considering all the circumstances. This, after the payment of their proctor's fees, will leave the libelants alittle less than had been considered a reasonable compensation by thednaster and the agent of underwriters present, and conditionally otfured; but, as there was no unqualified offer, and the suit was brougbt at the 'suggestion of the representatives of the property, costs will. necessarily follow. '
THE NORTH STAR. (DiBtrioJ Court, E.D. Mwhigan. December 8, 1890.) 1.' CoLLISI01ll'-DAIIUGES-PROJrITS.
Where a ,teamer, ,whicb was under charter to carry 25,000 tons of. iron ore, was sunk in a collision after she had entered upon the performance of such charter, and berowner was paid $2,000 for,a and release of his interest in the ,same, upon the theory that,he had the rlghtto substitute another vessel, held that, 8S against the vessel in fault, he could not recover the profits he would probably by the full performance of the oharter. Loss-MEASURE OF DAMAGES.
seems that the damages. recoverable by the owner of a vessel. totally lost in a collision are limited to the value of the vessel and interest and the net profits of , :the partioular voyage, and that he is not entitled to the probable profits of a charter unperformed. 8,
While interest upon the value of the vessel Is a matter of discretion, it will be . allowed where the faults of the two vessels are not greatly disproportional, and there is reason to belieVe that the witnesses have not given a true account of the , the ,collision. Where a witness swore that the expenses of his steamer while undergoing repairs were a certain sum,a.nd the. opposing oounsel did not cross-examine as to the claims of such expenses, and there was nothing to throw suspioion upon the charge, held, tliat.there was no reason for disallowing any portion of suoh a.ccount.
VE8SEL'1;l VALUE.
4. SAME..;"ExPENSE OIl'REPAIR--EvIDENCE.
(;9UttabUII by theOO'UTt.)
I-n Admiralty. Fed·. RllP'
On exceptions to commissioner's report.
See 43
THE NORTH STAR.
493
This was a suit for a collision between the propeller C. J. Sheffield and the steam-ship North Star, which was tried in February,J890, before the district judge and nautical assessors, and resulted in a decree adjudging both vessels to be in fault, apportioning the damages, and referring the case to a commissioner to compute and report the same. Upon filing such report, exception was taken by the libelants to the refusal of the commissioner to allow the sum of $14,000 for an alleged loss of profits upon a charter to carry 25,000 tons of iron ore from Two Harbors. Minn., to South Chicago, Ill., during the season of 1889. The commissioner reported that three cargoes, amouuting to about 5,832 gross tons, had been transported, and the Sheffield was on a voyage for the fourth cargo at the time of the accident. It was also shown that, under ordinarily favorable circumstances, she would have completed her contract by about the 5th of September, and that the net profits which would have accrued to the libelants, if the contract had been completed, basing the computation on the net profits of the cargo already transported, would have been $16,000. From this sum the libelants deducted $2,000, the amount which they realized from the sale or reassignment to the Northwestern Transportation Company of the residue onhis tract, leaving as the amount which they claimed for the loss of the charter the sum of $14,000. The alleged. charter of the Sheffield was tained in certain letters between officers oithe Northwestern.Transportation Company and the managing owner of the steam-ship C. J. Sheffield, copies of which are contained in the commissioner's report. III relation to this the commissioner, Mr. D. J. Davison, found as follows: "Conceding that this tripartite correspondence amounts to a charter-party which bound the steamer C. J. Sheffield to the carriage. at the speCified rate. of 25,000 tons of iron ore from and to the points indicated. is this 10RS an element to be considered in computing the libelant's damages? "Both in this country. and in England, in cases of partial loss, where the libelant's vessel has sustained such injuries as to interrupt her voyage, or voyages, and reqUire her to be laid up while the damage is being made good. the net profits the vessel would or might have eamed during the period of delay are allowed as an element of damages; and the net earnings of the vessel, at the time of and just prior to the accident, are deemed a just measure of such damage. .. And so, also, where the vessel is under charter for the pending voyage, the profits which would ha.ve been realized therefrom, if the voyage had been successfully completed, are allowed as an item of damage. 'The ground upon which these allowances are ma.de is that the owner of the injured vessel is deprived of her use during the period required for repairs. He has neither his ship nor her value; hp, cannot, therefore. supply the place of the damaged vessel by the purchase of another, but he mllst await her restoration· before be can, in any manner. derive prollt from this investment of hiscapitil.l. It is not the value of the unexpired term of the chartei' as a distinct and rate'item of damage that is awarded; but,the profits that would have accrued tmder the charter are regarded as the most equitable measure of rage value of the vessel for the period ofdt'lay reqUisite' for the repairs. .. The cases in which the question of demurrage has arisen havebeel1general1yth08& where there was a charter or acontrilct .for a single specific voyagej and the allowance of the net ireight upon the pemlirigvoyage-proeeeds
49:4
REPORTER I yO!.
44.
on tbe theofY that the vessel, at the Urn-e 9i the accident, fi,tted QIl t, mannEld, ',,'n<LIiW9visioned and e'quipped (Qr the contemplated voyage. The bftbat regard have been a/ready made, and the amount has beanddefinite sum. Her freight has been on board, and come its amount'determined; ami, in most ,cases, the voyage has been in part accomplished. T'beonly element of uncertainty is as to whetbershe will safely complete ber vQYllge. That she wilLdo so is deemed as certain as is the success ofmos,t business,ventures. In cas.as oia contract for the season, reqniring many voyages for its performance, there are ,involvt'd m:lny and gteater unllertairities. Freights arid so fluctuate as to render the contract not only valueless, bilt a source uf actual loss to the vessel owner. · "In cases of total loss, the full marked or cash value of the vessel, at the of the accident, is awarded to tlle,Qwner, thus in this resplJct, the most cOl11plete possible nature of the case; and which at least, restures to him at once his lost vessd. With the money so received, being the full market value of his vessel, he may at once purchase another, put her "in com nlis!lioll, ancl immediately make her a sourCe of profit. If the vessel' uder charter for the season at the tilDe of Il.Iss, as is Claimed in this case; and there'is RWllrded to the owner, as part ofthedamligE's resulting thevalue,9f the term of the charter, he would then l>f:l enabled to his earningsfQI' the balance of the season, and tbusmake'a profit of his Ipss. .' . "ltiillrtie,if the ownior Is uJ).able to for hiS sul)stltuted vessel an equaUy ipl'6fttiaulecharteror employmen't,' then, in order :to, make good his loss, he sboilltl" l'eceive,'in'.addition to the' vulue of his vellsel, the amount of this dimiuutjon of prolllAl,whlllie\,Elr they could be shown to be. But. in the thecommissionl:'r, t11jsinquiry wouid involve the consideration of matters, too and speCUlative to any satisfactoryresult. "The o'rlHnary and most' ..qllitable rule of compensation 'In cases of total loss bycl\lIiaioni, the value of the vassel at the time ,of the aocident, together with her freight upon the pending interest from the, time pf its estimated te{'mination. "This rille, whileitulayl,lol; in all cases afford complete reHef, is reasonin alJpl ication, and is the ruhas t he commissioner II uderstands, ,gl'Jlerally qle courts: in a warding damag,'s in cases of tOlal ·. OnlY one or two departllrefrom, it are fOlllJd,lJotably The Fred,. L.,Purtel','d Fed. in Wllich the cOllrt assesspd th.' uot t'reight for tile, charler, which was lor the sellsoq, Bill, in the opin.iqnof.the cOll1luissioner, thl"'conlractinthls case was notsnch a specific charter of the 8hettielu as preoluded her own"rs from substitutmg another vesc()l\Iplt'ting/ier 'cont\act. Hwas eyidelltly Hot ,SO cOllsidered is evillenced by the fact of payment by the :rransPQrtl\\ion., Com;panytq the owners of the Hhetiield of the $2,000 for a to it this, contract. If there was no ofstlbstitutiO'l,tllen ,all tbl! rights vf th· libelants under tillS contrapt ,to compietll thll ..tatipnof the 25,0,00 tons ofore were extingUished by the disllppeal'ance of tl.e,:;ihl;ltlielu under,the Wiltt'I'S of Lake Sup l'iLlr, ing to assign l The only l'ei;ltri-::tiull, as, to \·e.88els, conta. ned in the the IlIteJ.'ocea,1l Ti'allsportatioll COlllpanyand the tl,le tra!li;lpor,tation Of 00,000 tuns the \fere th\:l0r,e 8,halI can'ied by steamet:...,lwitlIo:ut , 'rIle Tranllp!ul'tation Compa oY were tllllfefQreijo,\lllU[ ·1' ,cargo: of ,l)l'e t,o al,ly, sHitllouJeslealller presented ,tllllH\wlfiel\l;provi\led call16'wil;lJouta cunsol't, until the tVll:l, . .,.' · ,. ,
THE NO'RTH STAB.
495
,"In any view of t'hecase, the Item of damages claimed for loss of profits on the charter should be. in the judgment of the commissioner, disallowed;" ,
The claimants illso filed the follo'wing exceptions to this report: (1) .To the allowance of interest upon the value of the Sheffield. (2) In refusing to allow claimants' item of $720.66, expenses of the vessel while undergoing repairs. '' H. D. Goulde:r and H. H. Swan; for libelants. C. E. Krarile:r and Robert Rae, for claimants. BRO'WN,J., (after stating the/acts aBa,bove.) The main exceptionh'ere rlllates to the disallowancebythecommissioner of the loss of profit\! upon the charter of the Sheffield to carry '25,000 tons of iron ore. The facts connected with thisclidtri are briefly follows: On the 28th of March, 'the Northwestern ;Transportation Conlpany, by H. H. Brown, vice.president, agreed with the Interocean Transportation Compaqy t6 carry 'for it 60,000 tons of ore from Two Harbors to Chicago, at $1.20 per gross ton. On'the 1st of April; E. M; Peck,presid,ent of No.rtijwester!) Transportation Company, wrote Brown,.as. managi.ngowner of the Sheffield, (who; as vice-president of the Northwestern tion Company, hadsigned the thelnteroceanC!?D:\pany,,) notifying him of the, charter, and saying, that, the steamer' Sh¢ffield should carry 20,000 (afterwards raised to 25,000)tons of' amount. This was agreed toby BrowIL, ,,'.. ' , : ' " ' ' This is all of the so-called charter, for the loss of which thislarge amount of Now, 'Y'hUe this contract ed1y be construed as a binding contract on the part of the I1nd the Sheffield alone, to carry this amount, it was construed by the parties themselves as a contract between the Northwestern Transportatiop panyand Brown to carrytbat amOUI1t in any 'nate, sihce,after the loss of the Sheffield, the Northwestern Trarpiportation Company paid to Brown $2,000 for a orielease of this contract. This could only be done upon the theory that had the right to substitute ailotber steamerin place of the Sheffield. 'By receiving the money, Brown acquiesced in this construction of the charter, and is not at liberty now, as against the North Star, to make a claim based upon a totally different construction. Whethera libelant in any case of total loss is entitled to, recover the profits of' an' unexpired charter, I do not find it necessary to express a decided opinion. It has been generally supposed that he was limited to a of the net freight upon the particular yoyage, and.thatlnterestupoh the value of his vessel from that tin1e was allowed in lieu of all other damages;. and, with a single exception, the to favor that c'ontention. The Oolumbm:, 3 W. Rob. 164;'l'MA'f,nfC/,bl£ Nancy, 3 Wheat. 546. The case of The Freddie 5 822, 8 'Fed. Rep. 170, is certainly authority 9ugh,t to be . however, in, explanaHon.of th,e of.the is}ounded upon t:lfSli,jnjured'vessel lsebtitled to his riet 'freight fortha pardcmiii'
to'
L.ro:rter,
496
FEDER,AL ,REPOR'.l'ER,
age'l\nd, in cases of partial loss, to an allowance in the nature of demUrr8g0 while undergoing repairs. The circuit judge affirms his opinion in a very brief couples with it the admission that his decision may be an advance upon apy which has been made. It is certainly difficult to reconcile this ease, with that of The Amiable Nancy, 3 Wheat. 546, in which the probable profits of a voyage yet in jim were disallowed, and which has heretofore been accepted as settling the law for this country. There are reRsons for allowing the loss of a profitable charter in a case of damage, while the vessel is undergoing repairs, ,whicll do not apply to a ease, ()f tot.alloss. The time during which the vessel is being repaired,is comparatively a short one, and the profits ef the charter are adopted simply as a measure of estimating the demurrage; Wllile,in the case 'of a total loss, the vessel may be under a charter which haS one of ,some YEla:rs to run, and, if the owner is entitled to reCover the profits of 'such c4arter at all, there would, seeni to be no limit to such right, so faras respects the time of its continuance. I am not satthat there is anything in this case to take it out of the scope of tlie tiecisian, in The Amiable Nancy. , 2. ,With reference to t1;1e. allowance of the item of &12,000 interest llponthe value of the, (which the commissioner puts at $160,000') 1 have, felt more 'dou,bt: The Sheffield was guilt)' of so many fl:mlts inconriection with 'this catastrophe that I have be,en strongly disposed to reject this'item 'of interest, as its allowance is a matter of dis,cration; but upon am satisfied with regard to the main 'fault, viz'.,' the reverse, a fault but for which the colwould riot have opcurred" the steamers were equally to blame. In addition to this, there, \Vas a ,frankness upon the part of the Sheffield's officers and crew in admitting' their limits, which, while it does not disarmcritjeism with respect to their conduct, inclinea One to take as lilv()rablea of their cl;Iseasthe facts will warrant. 'Upon the other lia,pd, there was such discrepancy between the testimony of the, men upon the made by them intheir protest, and,even in their Hl1swer,and such obvious improbabilities upon the lllce,of theirtestimony,)hat there is raised in my mind something more tha,n a suspicion that their intention was to make the testimony so far 8:s possible fit the exigenCies' of their' case, as they had been developed by, tpe libelant's evidence, a' practice very common in collision cases, oriewhich the Englislirule,withregard to the filing of preliminary acts, was intended toprovi'de against. Upon the whole, I have concluoed not to disturb the report of'the COlli missioner upon this' point. " '3. The only other item with regard to which a contest .is made relates expenses of Starwhile undergoingJ,'epail's at Buffalo ahd Cleveland, which were claimed at &720.66, and allowed at $358.75; apparently upon the grQu'ndthat the testimony did not satisfy the comiiiissi6ner that suchexpenses been It'is true that the testimony with regard to these expenses is not very s,atislactory; but so far .Bsit goes, and taking it, at its face I see no reason to doubt that they were hlcrirred while the veSsel was undergoing repairs·
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497
and were consequently a proper charge against the Sheffield. With regard to this, the witness Meadowcroft was asked the following question: "What were the actual expenses and outlay paid by your company in repairing the damage done to the North Star in this collision, and in consequence of your boat being so injured? Please give everything in the way of damage aside from dem urrage. " In answer to this, the witness gives the items of the damage, the last one of which is as follows: . "Expenses of vessel while undergoing repairs at Buffalo and Cleveland, made necessary by reason of collision, during the eight days which were claimed the vessel was detained, and including also the towing at Cleveland, $720.66;" , On cross-examination, he testified as follows: "In,giving the expenses during the time you claim she was detained in repail'ing, you have included some tow bills and possibly other items of that description. Will you give the amount per day of running expenses of the '8hipduring that time? Answer. $83 per day. Question. Have you included the fuertor running to Cleveland, and if so to what amount in dollars? A. The consumption of coal by which the vessel was running to Cleveland was one tan and a quarter per hour for eighteen hours at $2.50 per ton; and while 'in port the consumption of fuel was seven tons per day of twenty-four houl's, 80 that'the fueljli running to Cleveland about $56, as we have charged." Tbis was all the testimony in relation to this item. If the running expenses of the ship were $83 a day, eight days, this would amount to $664, which, with the $56 for fuel, would make up the $720, very nearly the amount of his bill. Now, as the witness gave this as one of items of his account, we think it was incumbent upon libelants him with regard to the items of such expenses, if they to entertained a doubt as to the propriety of their IIllowance. Instead of this, the commissioner makes an allowance for seven and a half dayB, of $47.74, for the pay and subsistence of the officers and crew, $358.75, a Bum which, in view of this testimony, seems somewhat arbitrary. If the witness had been cross examined with regard to this account, and had been unable or unwilling to produce the items, there might be some reason for disallowing the whole amount; but, in the absence of such crossexamination or counter-showing, I see no reason why his general testimony should not be accepted as true. As the crew were detained on board for the eight days, their wages would undoubtedly be a proper charge, as well as their provisions, and the fuel and supplies of other kinds needed and used upon the vessel while in port. Upon the whole, I have concluded to sustain this exception, and allow the item at the amount claimed, $720.66. It results that a final decree will be entered for the libelants for the Bum of $84,050.64, with interest from September 21, 1890, the date of the commissioner's report·
.v.44F.no.7-32
·
498
I'BDERAL
REPORTEB,voL 44.
THE ALASKA.
1: 2.
(DlBtIict OOU1't, ]G; D. Michigan. VESSEL. ,
September 29,1890.)
The libelant in a collision suit is entitled to recover such damages as naturally f()U()w .t'fQffi of the respondent,and to have his vessel restored as nearlyae1fOsslble to her condition before the collision. SAME-BEACHING VESSEL-ExPENSE Oil' REMOVAL.
'.
8;
" ipjured vessel was blIached after the collision, and a J?argain we.s made for lit to take her oIY and carry her to' a port of safety, and the sum ag:reed ·upbn·.{vll.s actually paid, held·that, if there was no fraud arid no want of reasonable making the the amount, paid was a Just charge' against the vessel in faUlt, althougn it was shown that the vessel mIght, in fact, hav.e been gotten off for a much less sum, Held, a!8o, that the owner of the injured vessel was entitled to his expenses'for.llQming to wreck.
!4.. !,
. The'prl'ctice {salso to allow the cost of the survey as dne of the incidental ex. pense8'Ohhe'collision.· ' '11he.cost ofrepai,rs wall alfJo allowed, alth()ugh it a REPAIRS...,.INTER1!lST· · , .' ...· . · ·
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SpRVEY.·.
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OJ' REPAIRS.
.larg!lly the . ' ; '..·
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lnctlrre.d for salvage and repaIrs IS a of dIscretion. and tn Vfew 8f'tne'fQlltthat the vessel wa.s made more valuable by tlie repairs than she ,""'1.· w.as. befOl'e' tlh8'.OOtlllliOD.".a.nd cf 8o. med.O.Il.b.t. a.ste). W e.th. al' the.. entire bm. OU./f'Jht.:to . \ » .. . .. . . . ..... . .. agq.inlit. thll it li-e1ft$atinterest,lIhou14be b.
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6. BAME-ExPJU'[SE OJ' CONVOY!
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:, report; .' ".. :""Thls'wasa'hbel for and the Alaska, whichoQcurredon 1886, ata point abqut, she miles below Amherstburg, and' near: the mouth of the Detroit riyer. ;Tne .case,was suffered togo by default at'the h,earing', a dElcree was entered for the libel,ant, with the usual order' of ref,erence tOR bomrilissiorier to assess and report .the: damages; ii. : After thec61lision the Oregon to Amherstburg in about 55 minutes, arid from there was takeri across the river, arid beached on Bois Blanc island. On Mandai she was raised and towed to Detroit; On she w8.splacedin the Detroit dry-dock, and temporarily re1>airetl., and on Wednesday she was started for Buffalo: and, after being 'held at Arnhin-stburg for 12 hours, by reason of an ,accident to her con'voy, arri:vedatBuffalo on tHe morning ofDecerriberBd, and was moored afMills'&(Jo.'li! dry-dock; . On the 8th of Decenibet; and while lying in 'the river at' Buffalo, she was inspected and'surveyed by three persons, oJ;le of whoql, ¥r. Humble, was chosen by the (?wnersianother,Mr; underwriters, wd8Gilcihrist,one 'of the bwnetS.HTnls survey was made about two months"bef9re she placed in dry-dock for repairs. In the mean time, done upoil her by her owners. ;,'.," " .II,!], ' Prior to her leaving Detroit the owners of the Alaska employed three persons to make a survey of the damages to the Oregon while she was in dry-dock here· ·
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