above items of expense and the agreed charter hire.
On the question of liability for the damage, the law is quite clear and is not seriously disputed by the respondents. Where a boat is chartered, a presumption of negligence on the part of the charterer arises upon a showing by the owner that the boat was damaged during the charter period, and this presumption remains unless the charterer offers evidence sufficient in the opinion of the trial court to excuse him. Tomkins Cove Stone Co. v. Bleakley Transp. Co., 3 Cir., 40 F.2d 249; The Moran No. 10, D.C., 41 F.2d 255. Kelly failed to offer sufficient evidence to exculpate itself from fault in causing the damage which occurred during its use of the lighter, and it is therefore liable to Banks. Banks, who agreed to return the lighter in good condition to Cox, is in turn liable to him for the damage caused.
Kelly strenuously insists, however, that the sum of $1,360 claimed by Cox and by Banks is far in excess of the reasonable cost of repairs required to be made to the lighter as a result of the damage to her. Respondent Banks, who signed the survey, concedes this sum to be reasonable. Kelly contends that the only amount of repairs actually necessitated by the damage was $333.85, which was the sum paid for the repairs which Cox had made on October 29 and 30, 1942, since which time the lighter has been in service. After careful consideration of the expert testimony on this question, I have concluded that the sum of $1,360 represents the reasonable cost of repairs necessitated by the damage to the lighter incurred while she was being used by Kelly in its operations.
The final question is whether Banks and Kelly are not relieved of liability for charter hire during the period from September 23 to October 30, 1942, because Cox refused to accept the tendered return of the lighter on the former date and refused to give orders to have her hauled out of the water for repairs. But no duty to do either of these acts was upon Cox. He was entitled to his charter hire until the lighter was returned to him in good condition, and he neither had to accept her in a damaged condition nor subject himself to a repairman's lien by ordering her to be repaired. If, as Kelly contends, no repairman would haul her out of the water without the consent of the owner, for fear of losing his lien -- a difficulty which Kelly apparently could have obviated by paying or securing payment to the repairman in advance -- this was a matter it should have considered when it undertook the responsibility of returning the lighter in good condition. The same answer applies to Kelly's argument that it should not be responsible for hire during a period in which shipyards were too busy to make the necessary repairs to the lighter. When an owner charters a boat to another, the latter becomes responsible for its return in good condition, and must bear any loss resulting from the delay incident to repairing damage to the boat occurring during her use by the latter.
I make the following conclusions of law:
1. Banks was under a duty to return the lighter "Doyle" to Cox in as good condition as when received, less ordinary wear and tear, before the agreed charter hire would cease.
2. Kelly was under the duty to return the lighter "Doyle" in as good condition as when received, less ordinary wear and tear, before the sub-charter hire would cease.
3. Cox was under no duty to accept the return of the lighter "Doyle" in a damaged condition or to order her hauled out of the water for repairs.
4. In action No. 85 of 1942, Banks is liable to Cox in the sum of $1,360 for repairs; $740 for the balance of charter hire; $50 for the expense of the survey; and $20 for towing costs; or a total of $2,170.
5. In action No. 85 of 1942, Kelly is liable to Cox in the sum of $1,360 for pepairs; $50 for expense of survey; and $20 for towing; or a total of $1,430.
6. In action No. 85 of 1942, Kelly is liable over to Banks for the sum of $1,360 for repairs; $50 for expense of survey; $20 for towing costs; or a total of $1,430, or such part thereof as Banks may be required to pay to Cox.
7. In action No. 1 of 1943, Kelly is liable to Banks for the sum of $900 for charter hire.
8. The liability of Kelly Pile and Foundation Corporation to the libellant is primary for the total sum of Fourteen Hundred and Thirty Dollars ($1,430) being Thirteen Hundred and Sixty Dollars ($1,360) for repairs, Fifty Dollars ($50) for expense of survey, and Twenty Dollars ($20) for towing, being the items found due in Conclusion Number Five, and the liability of Charles T. Banks is secondary for those items, in the total sum of Fourteen Hundred and Thirty Dollars ($1,430), being part of the items found due in Conclusion Number Four.
9. The liability of Charles T. Banks to the libellant is primary for Seven Hundred and Forty Dollars ($740), the balance of charter hire, being the item found due in Conclusion Number Four.
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