W. R. Grace & Co. v. Luckenbach S. S. Co.

WAD DUX, District Judge

(after stating.the facts as above). The gist of the libelant’s exceptions is that the commissioner erred in reporting the liability in its favor for the breach of the contract sued on, in the sum of $1,311,059.16, with interest from the 1st of Novena-*58ber, 1917; whereas, the damages should have been assessed at $1,371,-325.40, with interest from July 31, 1917.

Briefly, the exceptant says: (1) That the commissioner erred in giving credit to the libelant for only $10,000 to cover operating commissions, gratuities, etc., in carrying out and performing the contract breached, when he should have allowed $70,266.24, making a difference of $60,266.24 against the exceptant. (2) That the commissioner erred in fixing the amount of tonnage that the libelant was entitled to have shipped under its contract with the respondent at 69,200 tons, whereas, under the facts of the case, it should have been 75,000 tons, making a balance of only 63,202 tons of nitrate not delivered by the respondent under the contract, and for which the commissioner held it liable, 5,998 tons having been delivered before the alleged breach ■ of the contract sued on. (3) That interest should have been allowed as of the-31st of July, 1917, instead of November 1, 1917.

The respondents’ .exceptions are briefly to the effect that the commissioner erred in awarding damages to the libelant for the alleged breach of the contract in excess of the sum of $322,697.21, and that in no event should the award have exceeded $807,379.81. The specifications of objections are as follows: (a) That he treated the contract in suit as calling for the transportation of 69,200 tons of nitrate, instead of 67,500 tons, making a difference of 1,700 tons against the respondent; (b) that the commissioner erred in allowing damages on the basis of the cost of the hire of 14 ships employed specially to lift the tonnage between the dates of 23d of April, 1917, and 31st of December, 1917, covered by the contract between the parties, instead' of upon the basis of all the ships employed by the libelant in the transportation of nitrates between said dates, and that there was no sufficient evidence to warrant the commissioner’s finding that the 14 ships-were specifically hired to carry the nitrates in question; (c) that the-commissioner erred in assessing damages upon the basis of the cost of forwarding nitrates after the 23d of April, 1917, instead of upon the-basis of-approximately equal monthly shipments between December 1, 1916, and July 1, 1917; (d) that the commissioner erred in computing his damages upon the basis of $36.81 per ton, instead of $29.-19% Per ton, for the carriage 'of the nitrates in question; (e) that the commissioner erred in assessing the cost arising from the breach of the contract, by failing to take into account, during the same period in,which the cargo in question was being lifted, that the libelant was engaged in transporting other large quantities of nitrates, and to apportion the cost of transporting the quantity to be carried under the contract in suit and the total tonnage -shipped by libelant during said period.

These exceptions were elaborately argued, orally and in writing, and submitted, and after mature consideration thereof the court’s conclusion thereon, having regard to the terms of the contract in suit, which are briefly as follows:

“The said party of tlie .first part [Luckenbaeh Steamship Company, Incorporated] shall provide the said party of the second part [W. R. Grace & Co.] with freight room for seventy-five thousand (75,000) tons, 10 per cent more or less at the option of the party of the. first part, of nitrate and/or *59ores between the 1st of December, 1916, and the 3.1st of July, 1917, as follow's: * *v * The above-mentioned quantity to be divided as follows: About nine thousand (9,900) tons, 10 per cent, more or less, monthly; the party of the first part, to have the right to take up to seventeen thousahd (17,000) tons in any one period of sixty (60) days; all quantities and deliveries to be mutually arranged between the party of the first part and the party of the second part, to suit the steamers of the party of the first part”

—is that the report as a whole should be approved and confirmed. The commissioner has, in an able and exceedingly clear opinion, considered and passed upon the several questions presented for consideration, and the exceptions taken to his report by the parties respectively should be overruled; the court adopting his reasons and conclusions as its own regarding the several matters passed upon.

A decree overruling the exceptions and affirming said report will be entered on presentation.