Lykiardoupulo v. Staples Transp. Co.

AUGUSTUS N. HAND, District Judge (after stating the facts as above). The Watuppa was entering upon anchorage ground upon her own business in a dense fog. The noise of the chipping hammers indicated the near presence of some vessel. Under such circumstances she was bound to proceed with the utmost caution. We agree with the court below that such caution was not observed when she proceeded at the rate of 2% to 3 knots per hour in a fog so thick that the Athanasios only became visible when approximately 10 feet away. It is true that the Athanasios was not ringing her bell properly, and if she had done so the Watuppa would have had warning of the near presence of an anchored vessel. The failure to do this renders the Athanasios liable. But the Watuppa had warning from the noise of the chipping hammers of some object in the harbor, either stationary or moving, and should have" navigated accordingly. We are referred to no case which would exempt the Watuppa, in view of the warning she had, from the obligation to navigate slowly and cautiously in a dense fog, merely because the Athanasios neglected to ring her bell. She knew some object was near by, and did not proceed with due caution under such circumstances. In respect to damages based upon loss of earnings of the vessel while she was undergoing repairs, there must be clear proof that there would have been such earnings, if the collision had not occurred. The testimony establishes that there was no agreement between the parties as to demurrage. The vessel apparently was requisitioned by the Greek government under an agreement to pay the ruling freight rate at the time she was loading in New York, but the written documents as to terms were not produced, and the principal testimony on the subject is the oral testimony of the libelant. The master testified that on the 29th of October the consul notified him orally “that they were going to requisition the ship, and the next, day they sent me a letter — and I wrote it in the log book, too.” It is significant that there was no definite proof offered to show that the Greek government paid any demurrage to libelant because of failure to begin to load within a reasonable time, though some four weeks elapsed between October 29rh and the date of the collision, arid the libelant has apparently settled in full with the Greek government. That government was under no obligation to pay hire for the vessel during the period of repair, because she was then in an unseaworthy condition. The Yaye Maru (C. C. A.) 274 Fed. 195. There is no convincing proof that cargo was in readiness and a berth for loading available prior to the completion of the repairs. If the libelant had any definite proof that the Greek government was liable for charter hire from October 29th, and that this liability was .interrupted for 11 days by a collision which rendered the vessel unsea-worthy, then he should have produced the Greek consul," or some witness who knew the facts, and should not have relied on hearsay testimony and general conclusions to prove the relation of the parties and the ability of the ship to secure cargo. The decree is affirmed, with costs.