The Yaye Maru

ROSE, District Judge. On November 5, 1919, the Japanese steamship Yaye Maru and the British steamship War Lark were at anchor in the Baltimore harbor at a safe distance apart. During the morning of that day, a northwest wind grew in force until, slightly before noon, it became quite strong. Both ships were light, and felt the full force of the breeze, but with prompt and seamanlike dispositions neither should have dragged its anchor to any serious extent. Nevertheless the War Lark came down upon the Yaye Maru and did her [851] some damage. Neither of them could get under way, as there was no fire under the main boilers of either. After they had been along side of each other for some time, at the War Lark’s suggestion, they were lashed together to prevent further bumping or dragging. They so remained until a tug, summoned by wireless, took the War Lark off. I am satisfied that the latter was solely to blame, and I do not understand that this finding is seriously questioned. [1] The Yaye Maru claims that, in permitting the War Lark to be tied to her, she rendered a salvage service. The making of the ships fast to each other was a proper precaution to prevent further damage to both. The Yaye Maru could not, with safety to herself, have done anything else. She could not get out of the War Lark’s way, nor could the War Lark pull off from her. No salvage was earned,.but the War Lark is bound to make good the damage done. There is no controversy over the repair bills and the other ordinary collision expenses. The one dispute is as to whether the Yaye Maru is entitled to some $20,000, in the nature- of demurrage, for the fraction over six days between the collision and the completion of her repairs. She was under a time charter, which contained a breakdown clause reading as follows: “That in the event of the loss of time from deficiency of men or stores, fire, breakdown, or damage to hull, machinery, or equipment, grounding, detention by average accidents to ship or cargo, drydocking for the purpose of examination or painting bottom1, or by any other cause preventing the full working of the vessel, the payment of hire shall cease for the time thereby lost.” „ She had come to Baltimore for a cargo of coal, but before the collision a government embargo on shipments of that commodity had been imposed. It was not lifted until the middle of January. As a result the Yaye Maru did not get away until January 24th, although her repairs had been completed on the 11th of the preceding November. In point of fact, the collision did not delay her at all; but her charterer promptly claimed that she was off hire from the time she collided until she left the repair yard. [2] The first hearing of the case was in December. At that time the War Lark denied all liability for delay. On the 25th of the following January the owner of the Yaye Maru allowed her charterer some $20,000 as off hire. It is admitted that its action in so doing cannot affect the rights of the War Lark. It is consequently unnecessary to inquire or to speculate as to why the charterer found the owner so yielding, for it may not recover from the War Lark, unless the payment was one the charterer could have compelled it to make. [3] Where there is such a breakdown clause as that, here in issue, hire is suspended whenever the charterer loses time in consequence of the unseaworthiness of the ship. It does not appear that under such circumstances the courts have ever attempted to ascertain whether in fact the money lost to the charterer equaled the amount paid it, although fiords Watson and filershell in Hogarth v. Miller, Law Reports, 1891 App. Cases, 48, suggested that such an inquiry might sometimes be made. It is at least equally true that by the express words [852] •of the clause it cannot become operative unless time be lost, and whether such loss has occurred is determined by practical and not by theoretical tests. A ship may be temporarily unseaworthy for some or many purposes, but no time is lost to the charterer if she is still fit for the only use to which he then has occasion to put her, as, for example, for discharging cargo. Lake S. S. Co. v. Bacon (D. C.) 129 Fed. 819, affirmed 145 Fed. 1022, 74 C. C. A. 476; Hogarth v. Miller, supra; S. S. Knutsford Co., Ltd., v. Barber & Co., 261 Fed. 866, - C. C. A. -. [4] At the time of the collision, and long after the damage done by it was made good, the only use which the charterer could make of the Yaye Maru was to have her await the lifting of the embargo, and that she could do. She may have a decree for the collision damage,' and the incidental expenses she was put to thereby, but not for loss of time or for salvage.