Circuit Court of Appeals, Second Circuit.
Burlingham, Veeder, Masten & Fearey, of New York City (Chauncey I. Clark and Roy H. Caldwell, both of New York City, of counsel), for appellant.
George P. Nicholson, Corp. Counsel, of New York City, Charles J. Carroll, of Brooklyn, N. Y., and John T. Condon, of New York City, for appellee.
Before MANTON and L. HAND, Circuit Judges, and CAMPBELL, District Judge.
L. HAND, Circuit Judge (after stating the facts as above).
If the owner of a damaged vessel puts her in dry dock to repair damages done by a collision, and while she is there seizes the opportunity to make other repairs, which do not extend the time consumed in the collision repairs, the tortfeasor may not abate his damages. Hines v. Sangstad, 266 F. 502 (C. C. A. 1); Simpson's, etc., Co. v. Atlantic, etc., Co., 108 F. 425 (C. C. A. 1); The Acanthus, L. R. [1902] Prob. Div. 17. In such a case the tort-feasor cannot truly say that the detention and therefore the loss would have been less, had the owner deferred his own repairs. The ship by hypothesis had in any event to be taken out of commission, and must have lost her earnings during all the period she was laid off. It is that loss and that alone which is the basis of detention damage. The Conqueror, 166 U.S. 110, 17 S. Ct. 510, 41 L. Ed. 937; The Winfield S. Cahill, 258 F. 318 (C. C. A. 2); The Saginaw (D. C.) 95 F. 703. It must be treated as a matter of indifference to the tort-feasor that the owner gets an incidental benefit from the detention. He has as much lost the use of his vessel as though he did not make his own repairs, and he is not under any duty to share his windfall with the tort-feasor.
But if the ship would in any event go out of commission, collision or no collision, and if therefore, during the period when the collision repairs are actually made, she would have earned no profits for her owner, he cannot be said to have been damaged. The collision has not deprived him of earnings which he would have made at that season. This we understand to be the doctrine of the House of *382 Lords in Ruabon S. S. Co. v. London Assurance Co., L. R. [1900] App. Cas. 6, though the circumstances were quite different. The Court of Appeal applied it to the case of successive tort-feasors. The Haversham Grange, L. R. [1905] Prov. Div. 307, an extremer decision, the correctness of which we need not consider. See, also, The Chekiang, 21 Lloyd's List Reports, 179; The Suruga, 14 Lloyd's List Rep. 579.
While, so far as appears, the point has never come up in this country, it seems to us very plain in principle that the District Court was right.
Decree affirmed.
