Memphis & St. Louis Packet Co. v. Steam-Boat H. C. Yaeger

4 F. 927, 2 McCrary's Cir. Ct. Rpts 165, 1880 U.S. Dist. LEXIS 226

• Court: District Court, E.D. Missouri
• Decided: November 23, 1880
• Status: Published

Opinion

Treat, P. J.

The court having heretofore decided that the collision was one of mutual fault, the only question remaining was to determine the amount of damages, and apportion them accordingly; that is, a moiety of the aggregate against each of the parties.' Exceptions by libellant are that the expenses from port of departure to place of collision and return to port of repair (which is port of departure) have not been allowed. The rule is “restitutio in inte gram,;” but, to ascertain under that rule what is allowable, the courts have been compelled to exclude the inquiry into speculative or possible profits.

Note. See Guibert & Bona v. The British Bhvp George Bell, 3 Fed. Bee. 681.

It may seem that the full restitution against a maritime tort should cover all the expenses of a voyage; yet it may be that the voyage .was a losing one, and hence its interrujotion was no actual loss. Where loss of freight occurs, — that is, net loss, — the amount maybe included; but there is no such item here. Hence the libellant’s exceptions must be overruled. The Baltimore, 8 Wall. 377; The Cayuga, 14 Wall. 270; The Atlas, 93 U. S. Rep. 302.

None of the cases cited do more than state the general rule; yet that rule, in its application, must control. Respondent, on the other hand, excepts on the ground that the demur-rage is fixed at too high a rate. An examination of the testimony shows that $100 per day would be a fair rate for a charter-party, instead of $140 per day.

The exceptions of respondent, are sustained; and, instead of sending the cause back to the commissioner, the amount of damage will be reduced accordingly.