The opinion of the court was delivered by: BARD
These two actions in admiralty were consolidated for purposes of trial. The first is by Cox against Banks for the balance due under a charter of a lighter and for the cost of repairing damage to the lighter occurring while she was chartered. In this action Banks, under Rule 56 of the Supreme Court Admiralty Rules, 28 U.S.C.A. following section 723, impleaded as a respondent Kelly Pile & Foundation Corporation (hereinafter referred to as Kelly) with whom Banks had entered into a sub-charter of the lighter.The second action is by Banks against Kelly for the same cost of repairs and for charter hire under the sub-charter.
I make the following special findings of fact:
1. On September 14, 1942, Cox, by written charter party, chartered the deck lighter "Doyle" to Banks at a charter hire of $20 per day until returned, in as good condition as when received.
2. On the same day Banks orally sub-chartered the "Doyle" for an indefinite term to Kelly at a charter hire of $25 per day.
3. Kelly, having examined the "Doyle", accepted delivery of the lighter on September 15, 1942.
4. At the time of the delivery of the lighter she was in good condition and was seaworthy.
5. On September 19, 1942, while the lighter was being used by Kelly, she developed a serious leak.
6. Orally on September 23, 1942, and again on September 25th, Kelly notified Banks that the "Doyle" was leaking, and that it was no longer able to use her, and was terminating the sub-charter. The following day Kelly paid Banks sub-charter hire for the period from September 15th to September 23rd.
7. Both Banks and Cox refused to accept re-delivery of the lighter "Doyle" from Kelly until Kelly had caused repairs to be effected to her.
8. On October 15, 1942, Kelly caused the lighter to be re-delivered, over the protest of Cox and Banks, to the wharf of Cox where Kelly had originally accepted delivery of the lighter.
9. Cox was unable to have repairs to the lighter made until October 29 and 30, 1942, when she was repaired sufficiently to render her serviceable.
10. The reasonable cost of the repairs made necessary as a result of the damage incurred on or about ...