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a mercantile community evidence of the damages sustained, where there is other and better evidence showing the exact or approximate amount of the damages sustained. In the absence of other evidence of actual loss, such established rules of demurrage, or the provisions of the charter-party, may afford some criterion, and often the best evidence as to what the actual damage by detention is. Where other evidence is obtainable, the rate of demurrage prevailing at the port of detention is not conclusive, and should not be given controlling weight where better evidence of actual loss can be obtained. Some of the authorities, in discussing the matter of rates for demurrage damages, have commented upon the extreme difficulty experienced by courts in arriving at the exact and actual amount of damages sustained by the detention of vessels. This being a question that must largely be determined by the opinions of experts, it is subject to the same difficulties experienced in the determination. of all questions where the market value of an article arises. As before stated, the injured party is not necessarily limited in his recovery to the amount of the market value of his vessel during the period of detention, where he is able to show an actual loss in excess of the market value.*

A convenient method of determining such loss, and one often resorted to by the courts, is by ascertaining what the

murrage at the rate of $45 per day, the customary rate at New York being $262 per day.

notwithstanding the substituted vessel belonged to the same owner and might otherwise have been

1 The Silica v. The Lord Warden, idle. The Cayuga, 7 Blatch. 385. 30 Fed. R. 845.

See, also, The State of California,

2 The Margaret J. Sanford, 37 54 Fed. R. 404. Fed. R. 148.

3 The Rhode Island, 2 Blatch. 114. Where an injury was sustained by a ferry-boat by colliding, and another was substituted in its place, it was held that the owner was entitled to recover the fair value of the use of the injured ves

sel during the period of detention,

4 The Margaret J. Sanford, 37 Fed. R. 152; The Phila., etc. Railroad Co. v. Howard, 13 How. 307; United States v. Behan, 110 U. S. 338; Williamson v. Barrett, 13 How. 101; The Rhode Island, 2 Blatch. 113; The Cayuga, 7 Blatch. 385.

vessel was earning at the time of or immediately before the collision, and by ascertaining what, if any, provision had been made for a continuance of such earnings. Where there is no other evidence of the earning capacity of the ship than is shown by the charter or contract under which it is employed at the time of the collision, the average daily earnings under it may be taken as a standard of measurement.1

It is not necessary to entitle a recovery for damages to show that the injured vessel was actually under charter during the time of detention. If it is clearly shown what the market value of the use of vessels of the class in question is during the time, recovery may be had for such sum,2 where it is shown with a reasonable degree of certainty that the vessel would have been actually employed but for the detention, and that it would have actually earned the owner something over and above the expenses of its operation.3

To entitle a recovery for damages for detention while repairs are being made, no notice of an intention to demand such damages is essential, nor is it necessary that the master or owner of the injured vessel should inform the party at fault at the time what opportunities for chartering are presented during the time repairs are being made. It should be shown that the repairs were made within a reasonable time, and at a place not so remote as to incur unnecessary delay and expense in reaching it."

1 The Mayflower, 1 Brown, Adm. 376; The Jas. A. Dumont, 34 Fed. R. 428.

2 The Mayflower, 1 Brown, 376. 3 Sturgis v. Clough, 1 Wall. 269. The daily earnings of the ship should be shown for a period of sufficient length prior to the collision to enable the court to estimate a fair average of its net earnings.

4 The Baltic, 10 Ben. 631.

5 The Thomas Kiley, 3 Ben. 228. In this case the damaged vessel

was taken to a place at some distance from the place of collision, and while repairs were being made was frozen in and detained a considerable length of time. It appearing that the repairs could as well have been made at the place where the collision occurred, and that had they been made there no damages from freezing could have occurred, it was held that no recovery could be had for the added delay by reason of the freezing.

The allowance of interest on demurrage claims is largely a matter of discretion on the part of the court. In the majority of cases reported such allowance has not been granted. There is no reason, however, why it may not be done where it appears to the court that by such allowance substantial justice would be promoted.1

Where it is not shown that any profits would have accrued, or where it is shown that they would not have accrued had the vessel not been detained, there yet may be a recovery for demurrage sufficient to cover the expenses actually and necessarily incurred by the vessel during the period of detention.?

1 Johanssen v. The Bark Eloina, broken in a collision in which it 4 Fed. R. 573.

2 Where a tug was injured in collision and was detained for a period of twenty-one days, it not appearing that the crew left aboard was necessary to the prosecution of the work of repairs, it was held that the wages and expenses attending the keeping of the crew for that period were not properly chargeable against the offending ship. Thomas Tow-boat Co. v. The Sarah Thorpe, 46 Fed. R. 816.

Where it was shown that the crew was necessarily kept aboard during the period of repairing, the items of expense for keeping them aboard were held to be proper charges for allowance against the offending party. New Haven Steamboat Co. v. The Mayor, 36 Fed. R. 716.

Where both vessels were at fault, it was held that no allowance could be made for the detention of the one injured during the time necessary to make repairs. Meigs v. The Northerner, 1 Wash. Ter. 91.

Where a vessel lost her jib boom and one of her chain plates was

was not at fault, held, that it was justified in putting back for repairs, and that it was entitled to damages for the detention during the time repairs were made. Wells v. Armstrong, 29 Fed. R. 216.

Where a vessel sunk by the fault of another was subsequently raised and repaired, and other evidence disclosed the fact that there was no established charter value of the vessel at the port, and the owner was unable to show the market value of its use during the period of detention, it was held that the value of the services of the vessel to the owner in the business in which it was engaged at the time of the collision was the proper basis for estimating demurrage damages, and that the value of such service might be proved by the books of the owners showing previous and subsequent earnings; that whatever hardship this rule of estimating the loss entailed must be borne by the party in fault. The Mayflower, 1 Brown, 376.

For a seventy-ton schooner, six years of age, $15 per day was held

Sec. 205. Appraisement. To afford the party sought to be charged an opportunity to determine the value of the injured vessel, or any of its appointments, in case of loss the value of the vessel, cargo, and all other items of property chargeable as damages, should be appraised by competent persons having a knowledge of such matters, and the party sought to be charged notified of the same where it is possible to do so.1

Survey of damages: The cost of a survey of the damages done, and the cost of superintending the repairs, when necessary to the economical prosecution of the repairs, are proper items to be taken into consideration in computing the damages sustained; but where the necessity of a survey is not shown, and no order of court is made requiring it, the expense of the same is not assessable as damages.2

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Where there is no direct proof as to the amount of the damages suffered by detention, the court may in its discretion allow interest at the legal rate for the time so detained. The Manitoba, 122 U. S. 97, 100.

In the case of Orhanovich v. The America, 4 Fed. R. 337, it was held that the rate of demurrage fixed by the vessel's charter-party, accompanied by evidence that it was the rate adopted by the maritime exchange of the port, was prima facie evidence of the amount of the loss.

The fact that the repairs made on a vessel damaged in collision render it more valuable than it was before the injury is not a sufficient reason for disallowing demurrage damages for the period the vessel was wrongfully detained. The Santee, 6 Blatch. 1.

1 Where a boiler was removed from the wreck of a vessel destroyed by collision and sold at private sale without the knowledge of those sought to be charged, and without appraisement, the court allowed the party to be charged the full value of the boiler, instead of the price for which it was sold. The Warren, 17 Fed. R. 704.

2 Sawyer v. Oakman, 7 Blatch. 290, 306; The City of Chester, 34 Fed. R. 429; The Alaska, 44 Fed. R. 500; The New Haven Steamboat Co. v. Mayor, 36 Fed. R. 716; The Golden Rule, 20 Fed. R. 198; The Venus, 17 Fed. R. 925.

Sec. 206. Interest.- In computing the amount of damages to be allowed the party entitled to recovery, it is proper to allow interest on the amount expended for repairs and on the amount of demurrage charges that the prevailing party is entitled to, from the date when the various items of expense were incurred, and from the last day of detention where demurrage is recovered.1

Where no direct proof as to the amount of damages by reason of the detention during the making of repairs is adduced, the court may, in its discretion, allow interest upon the full value of the vessel for the time detained. Interest is usually allowed on the value of the vessel, in case of total loss, from the date of collision to the date of judgment,3 together with interest on the net freight from the probable date of the completion of the voyage; and where the owner, taking advantage of the act limiting his liability, obtains a release of the vessel by giving a stipulation for its assessed value, interest on such valuation may be allowed.

The allowance of interest on the various items of damage in a collision case is wholly a matter of discretion on the part of the court. In the matter of demurrage damages the practice in the New York district courts, and in most others of this country, has been not to allow interest; but there is no known rule of law preventing such allowance if a case meriting such action is presented. The allowance of interest in all matters of tort, where recovery is had, must rest entirely within the discretion of the court, to be determined by the circumstances of the case. Where substantial justice cannot be done without such allowance, courts uniformly allow it. Where such allowance would increase

1 The Baltic, 3 Ben. 195; The Alexandria, 10 Ben. 101; The America, 11 Blatch. 485; The Celestial Empire, 11 Fed. R. 761; The Jas. A. Dumont, 34 Fed. R. 428.

2 The Rhode Island, Abb. Adm. 100; The Mary Eveline, 14 Blatch. 497; The Manitoba, 122 U. S. 97.

3 The Morning Star, 4 Biss. 62. 4 The Baltimore, 8 Wall. 386.

5 The Favorite, 12 Fed. R. 213. 6 Johnson v. The Bark Eloina, 4 Fed. R. 573.

7 The Aleppo, 7 Ben. 120; The North Star, 44 Fed. R. 492; The Grapeshot, 42 Fed. R. 504.

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