opinion would not relieve the tortfeasor of the cost of room and board in the hospital if the hospitalization is not extended by the appendectomy.
Respondent has cited cases in support of its contention that libellant here cannot recover the drydocking expenses: Clyde S.S. Co. v. City of New York, 2 Cir., 1927, 20 F.2d 381. The Pocahontas, 2 Cir., 1940, 109 F.2d 929. All the cases cited by respondent are distinguishable from the present case, however, in that in them the damages did not make the ships unseaworthy and the repairs to the ships were not necessary immediately after the accident, while in the present case the accident rendered the ship unseaworthy and the repairs immediately necessary.
In the case of The Pocahontas, supra, recovery was disallowed and the case involved a claim for detention (loss of profits) damage rather than drydocking damages, but in the court's opinion the law, which applies equally whether the claim is for detention damages or for drydocking costs, was stated very well as follows, at page 931:
'If the collision damage is serious enough to necessitate an immediate lay-up for repairs, the owner may charge the tort-feasor with what the vessel would actually have earned during the detention period; and there will be no abatement of the amount because the owner chooses the occasion to accelerate owner chooses the occasion to accelerate repair damage for owner's account of a character not necessitating an immediate lay-up and not extending the detention period beyond the time required for collision repairs. Clyde S.S. Co. v. City of New York, 2 Cir., 20 F.2d 381, and cases therein cited. Even if the collision damage does not in fact require immediate repairs, the owner may in good faith and reasonably believe that it does; and, in that event, he would be justified in sending her to dry-dock. See Pan-American Petroleum & Transport Co. v. United States, supra, (2 Cir.) 27 F.2d (684) at page 685. In such a case, if dry-docking discloses that the vessel is still seaworthy and if the owner nevertheless decided to proceed with permanent repairs rather than to return the vessel to service and postpone permanent repairs until the period of general overhaul, the question will arise whether detention damages will be for the owner's account or the tort-feasor's. It would seem that the answer should depend on what is reasonable conduct under all the circumstances and in the light of the rule that even a tort-feasor is entitled to the benefit of the principle of avoidable damages.'
The rule would seem to be this: If as the result of a tort a ship sustains damage which renders it unseaworthy,
i.e. unfit for a sea voyage, the owner can recover from the tortfeasor the drydocking costs incurred while the repairs were being made, even though at the time the tort was committed a drydocking had been scheduled in the near future for other purposes. Since libellant's ship was made unseaworthy by the tort in the present case, and immediate drydocking was required, libellant is entitled to recover the cost of the drydocking.
It is interesting to refer to the case of The Bratsberg, D.C.E.D.Pa.1904, 127 F. 1005. In that case a ship was damaged as a result of a tort. Judge McPherson of this court, upon being confronted with a problem which was very similar to the problem in the present case, refused to create a windfall for either the owner or the tort-feasor and ordered that the docking expenses be divided between them. This seems like a very sensible solution to the problem, but (and counsel for both sides agree to this) there seems to be little if any American authority to sustain Judge McPherson's decision. It is not clear in the Bratsberg case whether the tort made the ship unseaworthy and the repairs necessary immediately. Consequently, the case can hardly be used as an authority here.
Libellant's exceptions to the commissioner's report will be sustained. A decree may be submitted in accordance with this opinion entering judgment in favor of the libellant and against the respondent in the sum of 75 per cent of the cost of the repairs to the 'Atlantic Trader' and also in the sum of 75 per cent of its drydocking cost.