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SAME WHEN LOSS PARTIAL

154. In case of a partial loss, the amount recoverable is the cost of saving the vessel, the repair and expense bills caused by the collision, and a reasonable allowance for the loss of the use of the vessel during any delay caused by the collision.

There is usually but little difficulty in settling the items for actual repairs. The fight generally turns on the amount that should be allowed for the loss of the vessel's use, or demurrage, as it is frequently, though inaccurately, called.

The sum to be allowed is the actual loss caused to the owner by being deprived of his vessel. This is a question of fact, and is often difficult of ascertainment.

The demurrage rate specified in a bill of lading or charter party is not the measure of damages, though it may be competent evidence. 58

If the vessel is actually under charter, the amount payable per day is strong evidence of her value."

When, however, the vessel is being operated by her owner, the method of fixing the rate varies greatly,

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In the Potomac a vessel engaged in a particular business was allowed the daily average of her net profits for the

season.

In such cases the rate differs from that in case of total loss, for under partial loss cases the future profits on a charter may be allowed."

Where no charter rate can be fixed, the courts hold that

§ 154. 53 Hermann, 4 Blatchf. 441, Fed. Cas. No. 6,408.

54 Margaret J. Sanford (C. C.) 37 Fed. 148; Brand, 224 Fed. 391, 140 C. C. A. 77, Ann. Cas. 1917B, 996.

55 105 U. S. 630, 26 L. Ed. 1194; Europe, 190 Fed. 475, 111 C. C. A. 307.

56 Argentino, 14 A. C. 519; UMBRIA, 166 U. S. 421, 17 Sup. Ct. 610, 41 L. Ed. 1053.

one good way of fixing the damage is to take the vessel's average earnings about the time of the collision."

A company which keeps a spare boat can still recover for the loss of use of their steamer, though the spare boat took its place.58

As these damages are allowed simply to make up to the owner any pecuniary loss to which he may be put by being deprived of the use of his vessel, it follows that no allowance for loss of time can be recovered in case of a vessel not operated for profit, but pleasure-like a private yacht-or of vessels not in operation."

On the other hand, in the Greta Holme," the trustees of a municipality which kept a steam dredge for their sole use were allowed to recover for the time lost by it in consequence of a collision damage, though they could not prove any direct pecuniary loss. They did prove, however, that the filling up during the dredge's absence from work entailed additional dredging afterwards.

Interest on the value from the date of collision in case of

57 CONQUEROR, 166 U. S. 110, 17 Sup. Ct. 510, 41 L. Ed. 937; William H. Bailey (D. C.) 103 Fed. 799; Bulgaria (D. C.) 83 Fed. 312; Tremont, 161 Fed. 1, 88 C. C. A. 304; Orion, 239 Fed. 301, 152 C. C. A. 289.

58 Cayuga, 14 Wall. 270, 20 L. Ed. 828; Mediana, [1899] P. 127; Id., [1900] A. C. 113.

59 CONQUEROR, 166 U. S. 110, 17 Sup. Ct. 510, 41 L. Ed. 937; Saginaw (D. C.) 95 Fed. 703; Wm. M. Hoag (D. C.) 101 Fed. 846; Fisk v. New York (D. C.) 119 Fed. 256; Loch Trool (D. C.) 150 Fed. 429. In Vanadis (D. C.) 250 Fed. 1010, demurrage was allowed for a yacht used only for pleasure; the court attempting (not very successfully) to distinguish it from the Conqueror Case.

60 [1897] A. C. 596. The tendency of the more recent English decisions has been to allow demurrage for loss of use of government ships, though no actual pecuniary loss is directly proved. Marpessa, [1907] A. C. 241; Astrakhan, [1910] P. 172. Under the American decisions the government can recover crew's wages and keep and other actual expenses, but not demurrage. A. A. Raven, 231 Fed. 380, 145 C. C. A. 374.

total loss, and on each item in case of partial loss, is usually allowed, though its allowance is a matter of judicial discretion.o1/

In estimating the cost of repairs, the fact that new repairs make the vessel more valuable than she was before, if these new repairs were necessary to restore her, does not cause any deduction. The rule of one-third off new for old, which has been adopted by the insurance companies, does not apply in collision cases.62

It is often a difficult question of fact how far the recovery may extend when the vessel is old, and it is necessary to put in a good deal of work on each side of the natural wound in order to make the repairs hold. As a rule, the cost of repairing adjacent parts is not recoverable, provided those adjacent parts were not in good condition. If the vessel is in good condition, and the injury is such that repairs to adjacent parts are also needed, they would be recoverable.63

REMOTENESS OF DAMAGES-SUBSEQUENT

STORM

155. If a vessel partially injured is so crippled by a collision as to be lost in a subsequent storm, which she could otherwise have weathered, that is, in law, considered as proximately arising from the collision.

1 Albert Dumois, 177 U. S. 240, 20 Sup. Ct. 595, 44 L. Ed. 751. The trend of later decisions is to a liberal policy in its allowance. Rickmers, 142 Fed. 305, 73 C. C. A. 415; J. G. Gilchrist (D. C.) 173 Fed. 666; Id., 183 Fed. 105, 105 C. C. A. 397; Mary B. Curtis, 250 Fed. 9, 162 C. C. A. 181; Great Lakes Dredge & Dock Co., In re (D. C.) 250 Fed. 916.

62 BALTIMORE, 8 Wall. 377, 19 L. Ed. 463.

63 John R. Penrose (D. C.) 86 Fed. 696; Providence, 98 Fed. 133, 38 C. C. A. 670.

The damages recoverable, as in common-law cases, are only those proximately caused by the collision. This is often a difficult question, and the decisions are not always enlightening. For instance, in the common-law case of Memphis & C. R. Co. v. Reeves, tobacco which did not go forward as fast as it might have done was caught in a flood, which it would otherwise have escaped. The court held that the proximate cause was the flood.

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In the Leland," a vessel injured in collision while making her way to port was caught in a storm, and, in consequence of her crippled condition, was totally wrecked. It was contended that the proximate cause of her main damage was the storm, but the court held that it was the collision, and that the vessel at fault was liable for the entire loss.

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In the City of Lincoln, the compass, charts, log, and log glass of a bark were lost in a collision. On making her way to port, she grounded on account of the lack of these requisites to navigation. The court held that the additional damage received in grounding was due proximately to the collision, and recoverable."7

SAME-DOCTRINE OF ERROR IN EXTREMIS 156. If a vessel, by her negligence, places the other in a perilous situation, and the latter, in the excitement, takes the wrong course, the negligence of the first is considered the proximate cause.

This is the "doctrine of error in extremis," and applies, as is well known, to all cases of negligence. The reason is

§ 155. 64 10 Wall. 176, 19 L. Ed. 909.

65 (D. C.) 19 Fed. 771.

66 15 P. D. 15.

67 See, also, Boutin v. Rudd, 82 Fed. 685, 27 C. C. A. 526; Onoko (D. C.) 100 Fed. 477; Id., 107 Fed. 984, 47 C. C. A. 111; Mellona, 3 W. Rob. 7; Pensher, Swa. 211; Reischer v. Borwick, [1894] 2 Q. B. 548; Bruxelleville, [1908] P. 312; ante, § 35, p. 80.

that it is not right to expect superhuman presence of mind, and therefore, if one vessel has, by wrong maneuvers, placed another ship in a position of extreme danger, that other ship will not be held to blame if she has done something wrong, and has not been maneuvered with perfect skill and presence of mind."

This doctrine has been enunciated in many American cases. Illustrations may be found in the cases which hold that a steamer must not run so close to a sailing vessel as to cause her alarm and trepidation.**

It applies just as well, however, to steamers.70

But the vessel which appeals to this doctrine must show that she was not in fault herself. She cannot claim to be free from negligence at the last moment on account of excitement, if her previous maneuvers have brought about the critical situation."1

§ 156. 68 Bywell Castle, 4 P. D. 219; NICHOLS, 7 Wall. 656, 19 L. Ed. 157; Maggie J. Smith, 123 U. S. 349, 8 Sup. Ct. 159, 31 L. Ed. 175; Charles Hubbard, 229 Fed. 352, 143 C. C. A. 472.

69 Carroll, 8 Wall. 302, 19 L. Ed. 392; LUCILLE, 15 Wall. 676, 21 L. Ed. 247; Nacoochee, 137 U. S. 330, 11 Sup. Ct. 122, 34 L. Ed. 687; ante, p. 280.

70 Blue Jacket, 144 U. S. 371, 12 Sup. Ct. 711, 36 L. Ed. 469.

71 ELIZABETH JONES, 112 U. S. 514, 5 Sup. Ct. 468, 28 L. Ed. 812; Protector, 113 Fed. 868, 51 C. C. A. 492; Noreuga (D. C.) 211 Fed. 356; Manchioneal, 243 Fed. 801, 156 C. C. A. 313.

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