nor does the respondent deny the damages were caused by this collision, though minor repairs were performed during the three days following the accident and the major repairs were made months later when the fleet returned to Pittsburgh for the winter. Under the circumstances, while the weight of the libellant's evidence could have been more impressive, the exhibits are not without meaning and are a guide to the court, especially in the absence of any substantial evidence to impugn the reliability of the figures presented.
The court concludes that the first item for the repairs to libellant's equipment in the amount of $ 8,077.92, ought to be and will be allowed.
The second and third items of damages submitted by libellant, merit separate consideration in view of respondent's strenuous objections -- three days loss for the M/V James Zubik at $ 35.00 per hour, totalling $ 2,520.00, and three days loss for the sand digger and miscellaneous items in the amount of $ 1500.00. The latter item is one for demurrage, that is, loss of profits pending repairs resulting from the collision.
On the issue of demurrage, there was no evidence of the business records of libellant, but there was uncontroverted oral testimony that the Zubik fleet averaged 1200 tons of sand and gravel daily, and that an equal amount of both was obtained. Sand brought $ 1.90 per ton at Pittsburgh and gravel brought $ 1.40 in May, 1960. It was stated that it cost $ .40 per ton to ship the sand and gravel to Pittsburgh from mile 65.5 on the Ohio River.
Respondent's objection is based on the fact that the market price less cost of shipping is not a sufficient indication upon which loss of profits can be determined. This objection is well founded. There is no evidence as to how the figure of $ .40 was determined, but even more important is the absence of any testimony relating to cost of production. Certainly charter fee, labor costs, maintenance and repair costs and similar items should have been accounted for as production costs. The court cannot guess what the loss of profits might have been without these, since it is only logical that production costs and transportation costs deducted from the selling price at the place of marketing show the profits. It is clear also that demurrage can only be allowed when profits have actually been lost or may reasonably be supposed to have been lost, and the amount proven with reasonable certainty, The Conqueror, 166 U.S. 110, 17 S. Ct. 510, 41 L. Ed. 937 (1896). This has not been done in this instance.
Libellant's claim for the loss of the use of the M/V James Zubik for three days presents a similar problem. The charter agreements do not itemize the charter fee which libellant was compelled to pay for any particular equipment, and the court was offered no evidence as to what a reasonable fee might be for the use of the M/V James Zubik without the crew, although the libellant's bookkeeper, Mrs. Drambel, said a reasonable fee in the industry with a crew would have been $ 40.00 per hour. It was clear that libellant's crew was busy with repairs and would not have been available for hire with the boat. Her estimate of $ 35.00 per hour was not based upon any facts before the court. Evidence of the boat's worth would have been her charter fee, but none was produced. Nor is there any evidence that libellant was in the business of leasing equipment or that there was any market for the M/V James Zubik during the three days she remained idle. The loss of the use of the Zubik must have been included as demurrage or loss of profits, in the second item of damages and would, therefore, constitute a duplication in damages. How is the court to separate such possible conflicts without credible evidence? There is not such clear evidence before the court, which satisfies it that either or any part of the claims presented under the second and third items should be allowed. They are accordingly disallowed.
The respondent has offered sufficient and credible evidence of its damages, including the charter fees required to be paid by respondent, and the court finds as a fact that the respondent sustained the following damages to marine equipment or equipment chartered by it:
1. Repairs to barge OR 513 $ 519.01
2. Repairs to barge AVC 703 424.76
3. Laytime for barge OR 513 75.00
4. Administrative charges
for barge AVC 703 53.10
5. Three lay days for AVC
TOTAL: $ 1131.87
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