FRIENDLY, Circuit Judge.
This appeal presents an interesting question as to the measure of damages for the breach of a voyage charter. Our view differs both from that of the trial judge and from that urged by appellant.
On May 17, 1957, Liberty Navigation & Trading Co., Inc., as owner, and Kin■oshita & Co., Ltd., as charterer, entered into a charter of the American steamer Josefina. The vessel was to proceed to loading ports in the Philippines, there load a cargo of raw sugar in bags, “10,-160 metric tons 5% more or less at owners option which the charterers bind themselves to ship,” and then proceed to ■discharging ports in Korea. The freight was to be $12 per long ton. The Josefina was required to be in the first loading port in the Philippines on or before July 10,1957. The charterer was to load .at the average rate of 1,000 metric tons per weather working day and to discharge at the average rate of 1,200 metric tons per weather working day, ‘Sundays and holidays excepted, unless ■used. Loading and discharge were to be performed by the charterer at its expense; however, a separate clause, 22, provided: “Dunnage and mats, and taxes, if any, to be for Owners account.”
On June 10, 1957, the Philippine Government having suspended the issuance ■of export licenses for sugar to Korea, ■defendant cancelled the charter. The Josefina was then en route with a cargo from India to Japan. On June 21 plaintiff wrote that it regarded the notice of June 10 as a repudiation of the charter, would seek other employment for the Josefina, and would hold defendant liable in damages. Plaintiff did not succeed in obtaining other cargoes within the Far East. However, by paying an indemnity of $12,000 to another vessel, plaintiff arranged a charter from the Philippines to the east coast of the United States, on what were known to be relatively unfavorable terms. The substitute charter consumed 82 days, earned freight of $152,310, and resulted in an overall loss of $71,735; however, it had the advantage, among others, of returning the Josefina to the United States where she had to be in any event in October when the articles of her crew expired. Defendant does not dispute that it is liable for breach of the charter and that plaintiff took all reasonable measures to mitigate the damages.
The first step in computing the damages was to determine the freight plaintiff would have received under the can-celled charter. Here there was a dispute as to how much sugar the Josefina could have carried. The trial court found she had capacity to carry 10,145 long tons, an amount within the owner’s option to take on 10,160 metric tons 5% more or less; at the agreed rate this would have yielded freight of $121,740. Appellant claims she could not have carried more than 9,539 long tons, but we accept the judge’s finding since there was a conflict of testimony and his determination can in no event be deemed clearly erroneous.
A much more serious controversy concerned the amount to be deducted from the freight for the expenses plaintiff would have had in performing the can-celled charter and the consideration to be given to the results of the substitute charter. As to the former, the trial judge took the view that the only expenses properly deductible from the freight under the cancelled charter were such expenses as would have been entailed in making the voyage over and above the amounts that would have had to be expended in any event to maintain the vessel for the same length of time in a foreign port. As to the second, he held that, since the substitute charter had resulted in a loss, it was not to be considered at all. From the estimated freight of $121,740 receivable under the [346]*346cancelled charter he therefore deducted only $23,124, this being the sum of ship broker’s commissions, port charges and dunnage that would have been payable by’ the vessel under the cancelled charter, and the excess of the cost of fuel for the I6V2 days when the Josefina would have been at sea over the fuel cost for maintaining her in port during the same period. Accordingly, he awarded damages of $98,616.
Defendant attacks the award as excessive, contending that, at least in the ordinary case, damages for the breach of arvoyage charter may not be more than the excess of the freight for the voyage over the expenses of the voyage determined on a full costing basis, although they may be less than this to the extent that a substitute charter has produced profits. The plaintiff claims the award to be required by The Gazelle and Cargo, 1888, 128 U.S. 474, 9 S.Ct. 139, 32 L.Ed. 496. In our view the District Court overcompensated the plaintiff, but not to the extent the defendant argues.
We see no logical basis for a rule that would set the difference between the freight and the fully allocated cost of performing the cancelled voyage as the maximum damages that could be recovered for breach of a charter where consequential damages are not established. Plaintiff points out that such a rule would provide an incentive for the breach of voyage charters when the market had fallen so that owners were offering charters at less than full costs. The damages which the law accords to the plaintiff are the value of the defendant’s performance less the plaintiff’s savings from being relieved of the necessity of performing on his own part. 5 Williston, Contracts (1937 ed.), pp. 3765-66. Accordingly, what must be deducted from the freight is “any saving to the plaintiff due to the non-performance of the contract.” Ibid., p. 3764; amounts which the plaintiff has had to pay in any event, e. g., crew wages, during a period when the vessel is idle, have not been saved. Defendant has cited no authority to support the rule of limitation which it advances. Indeed, in one of the decisions relied on by it,. United Transportation Co. v. Berwind-White Coal-Mining Co., 2 Cir., 1926, 13. F.2d 282, this Court sanctioned a measure of damages more liberal to the owner. There the cancelled charter would have been completed in 36 days, whereas, the substitute charter began five days later and ran for a longer period. The commissioner computed damages as being the profit under the broken charter determined after deducting full costs, less 31 times the daily profits under the substitute charter similarly computed, plus 5 days of ordinary expenses for keeping' the vessel in port while awaiting the substitute charter. This Court sustained the commissioner’s computation against attack by the charterer.
The formula in the United Transportation case would support the award here made by the District Court if there had been no substitute charter; for, if the vessel is idle for the entire period, it is immaterial whether one first deducts, from the freight the expenses of the broken charter computed on a fully allocated basis and then adds back the expenses of maintaining the vessel in port for the same period, or deducts only the added expenses as the district judge did. However, here there was a substitute charter which, although operated at an overall loss, made some contribution to such expenses as crew hire, maintenance, etc., during the period of the broken charter. The District Court was mistaken insofar as it failed to credit defendant with the amount so contributed and thereby required defendant to reimburse plaintiff for some general expenses that plaintiff has already recovered.
Analysis of the figures of record will serve both to demonstrate this and to arrive at a proper award, bearing in mind the caution in Venus Shipping Co. v. Wilson, 2 Cir., 1907, 152 F.
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FRIENDLY, Circuit Judge.
This appeal presents an interesting question as to the measure of damages for the breach of a voyage charter. Our view differs both from that of the trial judge and from that urged by appellant.
On May 17, 1957, Liberty Navigation & Trading Co., Inc., as owner, and Kin■oshita & Co., Ltd., as charterer, entered into a charter of the American steamer Josefina. The vessel was to proceed to loading ports in the Philippines, there load a cargo of raw sugar in bags, “10,-160 metric tons 5% more or less at owners option which the charterers bind themselves to ship,” and then proceed to ■discharging ports in Korea. The freight was to be $12 per long ton. The Josefina was required to be in the first loading port in the Philippines on or before July 10,1957. The charterer was to load .at the average rate of 1,000 metric tons per weather working day and to discharge at the average rate of 1,200 metric tons per weather working day, ‘Sundays and holidays excepted, unless ■used. Loading and discharge were to be performed by the charterer at its expense; however, a separate clause, 22, provided: “Dunnage and mats, and taxes, if any, to be for Owners account.”
On June 10, 1957, the Philippine Government having suspended the issuance ■of export licenses for sugar to Korea, ■defendant cancelled the charter. The Josefina was then en route with a cargo from India to Japan. On June 21 plaintiff wrote that it regarded the notice of June 10 as a repudiation of the charter, would seek other employment for the Josefina, and would hold defendant liable in damages. Plaintiff did not succeed in obtaining other cargoes within the Far East. However, by paying an indemnity of $12,000 to another vessel, plaintiff arranged a charter from the Philippines to the east coast of the United States, on what were known to be relatively unfavorable terms. The substitute charter consumed 82 days, earned freight of $152,310, and resulted in an overall loss of $71,735; however, it had the advantage, among others, of returning the Josefina to the United States where she had to be in any event in October when the articles of her crew expired. Defendant does not dispute that it is liable for breach of the charter and that plaintiff took all reasonable measures to mitigate the damages.
The first step in computing the damages was to determine the freight plaintiff would have received under the can-celled charter. Here there was a dispute as to how much sugar the Josefina could have carried. The trial court found she had capacity to carry 10,145 long tons, an amount within the owner’s option to take on 10,160 metric tons 5% more or less; at the agreed rate this would have yielded freight of $121,740. Appellant claims she could not have carried more than 9,539 long tons, but we accept the judge’s finding since there was a conflict of testimony and his determination can in no event be deemed clearly erroneous.
A much more serious controversy concerned the amount to be deducted from the freight for the expenses plaintiff would have had in performing the can-celled charter and the consideration to be given to the results of the substitute charter. As to the former, the trial judge took the view that the only expenses properly deductible from the freight under the cancelled charter were such expenses as would have been entailed in making the voyage over and above the amounts that would have had to be expended in any event to maintain the vessel for the same length of time in a foreign port. As to the second, he held that, since the substitute charter had resulted in a loss, it was not to be considered at all. From the estimated freight of $121,740 receivable under the [346]*346cancelled charter he therefore deducted only $23,124, this being the sum of ship broker’s commissions, port charges and dunnage that would have been payable by’ the vessel under the cancelled charter, and the excess of the cost of fuel for the I6V2 days when the Josefina would have been at sea over the fuel cost for maintaining her in port during the same period. Accordingly, he awarded damages of $98,616.
Defendant attacks the award as excessive, contending that, at least in the ordinary case, damages for the breach of arvoyage charter may not be more than the excess of the freight for the voyage over the expenses of the voyage determined on a full costing basis, although they may be less than this to the extent that a substitute charter has produced profits. The plaintiff claims the award to be required by The Gazelle and Cargo, 1888, 128 U.S. 474, 9 S.Ct. 139, 32 L.Ed. 496. In our view the District Court overcompensated the plaintiff, but not to the extent the defendant argues.
We see no logical basis for a rule that would set the difference between the freight and the fully allocated cost of performing the cancelled voyage as the maximum damages that could be recovered for breach of a charter where consequential damages are not established. Plaintiff points out that such a rule would provide an incentive for the breach of voyage charters when the market had fallen so that owners were offering charters at less than full costs. The damages which the law accords to the plaintiff are the value of the defendant’s performance less the plaintiff’s savings from being relieved of the necessity of performing on his own part. 5 Williston, Contracts (1937 ed.), pp. 3765-66. Accordingly, what must be deducted from the freight is “any saving to the plaintiff due to the non-performance of the contract.” Ibid., p. 3764; amounts which the plaintiff has had to pay in any event, e. g., crew wages, during a period when the vessel is idle, have not been saved. Defendant has cited no authority to support the rule of limitation which it advances. Indeed, in one of the decisions relied on by it,. United Transportation Co. v. Berwind-White Coal-Mining Co., 2 Cir., 1926, 13. F.2d 282, this Court sanctioned a measure of damages more liberal to the owner. There the cancelled charter would have been completed in 36 days, whereas, the substitute charter began five days later and ran for a longer period. The commissioner computed damages as being the profit under the broken charter determined after deducting full costs, less 31 times the daily profits under the substitute charter similarly computed, plus 5 days of ordinary expenses for keeping' the vessel in port while awaiting the substitute charter. This Court sustained the commissioner’s computation against attack by the charterer.
The formula in the United Transportation case would support the award here made by the District Court if there had been no substitute charter; for, if the vessel is idle for the entire period, it is immaterial whether one first deducts, from the freight the expenses of the broken charter computed on a fully allocated basis and then adds back the expenses of maintaining the vessel in port for the same period, or deducts only the added expenses as the district judge did. However, here there was a substitute charter which, although operated at an overall loss, made some contribution to such expenses as crew hire, maintenance, etc., during the period of the broken charter. The District Court was mistaken insofar as it failed to credit defendant with the amount so contributed and thereby required defendant to reimburse plaintiff for some general expenses that plaintiff has already recovered.
Analysis of the figures of record will serve both to demonstrate this and to arrive at a proper award, bearing in mind the caution in Venus Shipping Co. v. Wilson, 2 Cir., 1907, 152 F. 170, that in determining damages for a broken charter “approximate accuracy is all that can be reasonably expected.” Before proceeding with this analysis, we must fix the duration of the cancelled charter.
[347]*347The trial judge found that the cancel-led voyage would have required 37% days, although, because of his computation of expenses on an added cost basis and his belief that the substitute charter should be disregarded, this figure does not appear to have entered into his calculations. We must first consider how long the charter in fact would have taken and, if the answer is more than 37% days, decide whether, defendant is precluded by an alleged stipulation from asserting this.
Under the charter defendant was entitled to take approximately 10% weather working days to load and 8% to unload. These 18% days would necessarily have included at least two Sundays on which defendant was not required to load. Addition of these brings us to a figure approximating the 21 days shown in the stipulation. However, the Josefina’s log book showed there was a typhoon in the Philippines which prevented any loading of cargo from 11 a. m. on July 14 to 8 a. m. on July 16. Since the Josefina did not complete the discharge of her prior cargo in Japan until July 2 and could not have reached the Philippines before July 8, this typhoon would have occurred during her loading period. However, July 14, 1957, was a Sunday. Hence the correct figure for loading time should be 22 days and the total days to complete the voyage 38%.1
We do not think appellant is precluded from claiming this minor adjustment. The alleged stipulation was prepared at the end of the first day of the trial in response to the court’s request that the parties endeavor to agree on certain facts. The transcript shows that when the trial resumed, a colloquy took place between the court and counsel which is reproduced in the margin.2 We read this as preserving defendant’s right to assert the voyage would have lasted longer than 37% days if everything did not go well; certainly the contrary is not clear and our construction is borne out by plaintiff’s lack of objection when, later in the trial, defendant called the court’s attention to the entry in the log concerning the typhoon.
Making this adjustment, and also abandoning the division of the fuel costs into two categories for a special reason applicable to this case that will appear below, we come to a figure of $28,649.50 representing what plaintiff would have saved from non-performance of the charter if the Josefina had remained idle in port. The stipulation showed that the total expenses of the cancelled charter (adjusted for the extra day) amounted to $86,784.50. Hence the expenses for [348]*348items that would have been incurred regardless of performance amounted to $58,135. If the substitute charter had been for exactly the same period as the cancelled charter, we could find what contribution the substitute charter made to these general or “overhead” expenses by deducting from the freight under the substitute charter expenses of the same character as the $28,649.50 and determining what was left. However, the substitute charter was for 82 days, as against the 38% days of the cancelled charter, and the problem is to determine how much plaintiff received against the $58,135 of overhead expenses during those 38% days.3
Some proration is clearly called for; the question is how this is to be done. Certain items of expense, such as crew wages and food, and maintenance of the vessel, accrue on a day-to-day basis; others, such as an indemnity that had to be paid to procure the charter, costs of loading and discharge, and Panama Canal dues, do not. In strict theory fuel costs should be divided between the minor costs that would be incurred in keeping the vessel in port, which should be prorated, and the excess costs entailed in having her at sea, as Judge Dawson did in the case of the cancelled charter. However, the record does not afford all the data required to make such a separation for the substitute charter; since the difference in result must be small, we will include all fuel costs with items of the sort just described. We think these items, amounting to $110,874, which are of the same general nature as those comprising the $28,649.50 of out-of-pocket savings deducted from the freight of the cancelled charter, should be deducted in solido from the freight of $152,310 under the substitute charter, that the balance of $41,436 should be prorated over the 82 days of the substitute charter, and that the quotient, $505.32, should be multiplied by 38%, resulting in a figure of $19,454.82 as earnings of the substitute charter applicable to the overhead expenses of 38% days and thus in further reduction of plaintiff’s damages. Adding this $19,454.82 to the $28,649.50 figure of out-of-pocket savings already' determined, and deducting the sum, $48,-104.32, from the estimated freight of $121,740, we arrive at a figure of $73,-635.68 of damages. This compares with the award of $98,616 made by the District Court.4
It might be argued by plaintiff that, since the substitute charter had to-be performed as a whole, it is entitled to-have the freight applied to the full payment not only of the non-proratable expenses but also of the proratable expenses-for the last 43% days, before any credit is given for the amounts earned against, such expenses during the first 38% days. On the other hand, it is argued that all-expenses should be prorated, a method which, in most cases including this one,, would result in a smaller recovery. No-rules in this field are “capable of exact, and perfect application.” 5 Corbin, Contracts (1951 ed.), § 992. We think the-method here adopted provides the fairest measure of the contribution made by the substituted charter to the overhead expenses the owner would have had during the corresponding period of the cancelled charter, and that this, along with the out-of-pocket expenses that were eliminated, was the “saving to the plaintiff due to the non-performance of the contract.” Defendant claims it is entitled to a credit larger than we have allowed because of the contribution made by the. [349]*349substitute charter in getting the Josefina to the United States, a voyage which she might have been obliged to make in ballast had the cancelled charter been performed. We do not hold there are no circumstances in which a more favorable position of the vessel created by a substitute charter may be taken into account, cf. Constantine & Pickering S. S. Co. v. West India S. S. Co., D.C.S.D. N.Y.1914, 231 F. 472; Poor, Charter Parties, 4th ed., p. 240; but in order to sustain this argument defendant was obliged to show that no cargo for the United States would have become available in late August when the cancelled charter would have been completed, and this burden it did not discharge. Per contra, if plaintiff had claimed the entire loss on the substitute charter as consequential damages, see 5 Williston, Contracts (1937 ed.), § 1354, it would have had the burden of showing it could have obtained such cargo. However, no such claim was advanced. It is plain that if we look only at the period during which the two charters overlapped, the substitute charter made some contribution to the expenses of maintaining the vessel and thereby reduced rather than increased plaintiff’s loss. There is thus no occasion to consider here the circumstances under which an owner may recover more than the charterer’s performance and the rule in Hadley v. Baxendale, 9 Exch. 341 (1854).
There remains defendant’s claim that, under clause 22 of the charter, “Dunnage and mats, and taxes, if any, to be for Owners account,” deduction from the profit of the charter should be made for a “wharfage charge” of 2 pesos a metric ton imposed on the owner of certain exports from the Philippines, including raw sugar, under Section 3, Part II, of Republic Act No. 1371. It has been held that this levy, which goes back to 1909, although denominated a wharf-age charge, in reality is an excise tax, Sociedad Armadora A. P. v. 5,020 Long Tons of Raw Sugar, D.C.E.D.Pa.1954, 122 F.Supp. 892, 894, affirmed 3 Cir., 1955, 223 F.2d 417. While that consideration was decisive in the case cited, where the ship’s liability was for “wharf-age charges at both ends,” it is not so here since the clause imposing liability-on the ship refers to “taxes.” Nonetheless we think the reference in the charter was to items such as port charges- and loading fees imposed on the vessel and not to export taxes on the goods which, as the District Court pointed out, 178 F.Supp. 733, amounted to 8% of the gross freight. The charter was for a particular voyage from the Philippines and between parties evidently familiar with Philippine law; a reference to “taxes, if any” in a clause dealing also with dunnage and mats, was hardly apt language to impose liability on the owner of the vessel for a levy on the charterer’s goods, of this nature and amount.
The judgment is modified to award plaintiff $73,635.50, with interest from July 10, 1957, and plaintiff’s costs in the District Court, and as so modified is-affirmed. Defendant shall recover half the costs of its appeal in this Court.