Newtown Creek Towing Co. v. City of New York, 23 F.2d 486 (2d Cir. 1928)

George P. Nicholson, Corp. Counsel, of New York City (Charles J. Carroll, of Brooklyn, N. Y., and William J. Leonard, of New York City, of counsel), for appellant.

Alexander & Ash, of New York City (Edward Ash, of New York City, of counsel), for appellee.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

PER CURIAM.

The Golden Age was damaged by colliding with the city's bridge at Newtown creek on November 25, 1924. Liability was imposed upon the appellant. In measuring and allowing damages, 12 days' demurrage is allowed the necessary time for repairs. Proof of such damage for detention rested upon the testimony of appellee's bookkeeper, and in substance showed the earnings, expenses, and average profit per day over a period including the time the tug was being repaired November 27 to December 10, 1924. It appears that the appellee owned and operated 21 tugs, and had on hand 4 or 5 daily, as spare tugs. In this table there is no record of the operation of the tugs in the months of November and December, when the tug was not operated. The 4 or 5 tugs were always regarded as spare. It appears that there was not sufficient business for them, and that the whole fleet was never working at one time. An analysis of the bookkeeper's compilation from the original records forms no basis upon which to demonstrate *487 that, during the period this tug was in dry dock for necessary repairs, due to collision, she could have been otherwise employed with profit to her owners. The burden of establishing loss of earnings for detention during these 12 days was upon the appellee. The North Star (C. C. A.) 151 F. 168; Winfield S. Cahill (C. C. A.) 258 F. 318; Aktieselskabet Bonheur v. San Francisco & P. S. S. Co. (C. C. A.) 287 F. 679. In The Conqueror, 166 U.S. 125, 17 S. Ct. 510, 41 L. Ed. 937, the court said that such loss of profits for detention must be proven with reasonable certainty; it is not enough that the vessel might have made profit; it is not the possibility of employment, but an actual loss, to which the appellant must respond.

The collision occurred on November 25, 1924. Repairs were started on November 27th. They were completed December 10th, and it appears that she was not working from December 10th until December 25th, which is a further indication that during the period of repair there was no work for her. Merely showing that the vessel was laid up for repairs and a statement of the appellee's business forms too speculative a basis upon which to assume that, had the tug been in good repair, she would have been employed. The Conqueror, 166 U.S. 125, 17 S. Ct. 510, 41 L. Ed. 937.

The appellee contends that it can establish damages for detention, if afforded an opportunity to submit additional proof. Therefore we will reverse that part of the decree which allows damages for detention, and remand, with directions that it be afforded an opportunity of presenting additional proof before the master to establish loss for detention.

Decree reversed and remanded.