Opinion of the Court. collector of St. Mary's for damages occasioned by an illegal seizure of the ship and cargo while lying within the territories of the King of Spain. In this case demurrage was allowed at the rate of $40 per day, although the court had expressed its opinion that the probable profits of a voyage, either upon the ship or cargo, could not furnish any just basis for the compensation of damages, the court observing that "every other method of adjusting compensation," than that of demurrage, "would be merely speculative, and liable to the greatest uncertainties." Smith v. Condry, 1 How. 28, was a common law case, wherein a vessel, laden with a cargo of salt, received injury by a collision in the port of Liverpool. Upon the trial, plaintiffs offered to prove that if the ship had been able to sail upon her voyage upon the day named, she would in due course have arrived in Georgetown in time for the sale of her cargo in the fishing season of the Potomac River, when there was a great demand for salt; but, owing to the delay, she did not arrive until the season was over, and thereby lost ten cents per bushel upon the value of the salt. The court, acting upon the analogy of insurance cases, held that this testimony was properly refused admission. It is quite obvious, however, that this was not a case where damages were claimed for the use of the vessel pending her repairs, but for the loss of anticipated profits pending the sale of her cargo, and therefore falling within the rule stated in The Apollon, that profits upon the sale of the cargo are excluded. There is no conflict between this case and that of Williamson v. Barrett, 13 How. 101, wherein the court held upon the authority of The Gazelle, 2 W. Rob. 279, that the plaintiffs were entitled to recover for the use of their boat, by which "we understand what she would have produced to the plaintiffs by the hiring or chartering of her to run upon the river in the business in which she had been usually engaged"; in other words, the market price of the hire of the vessel. This ruling has been repeatedly affirmed in this court, The Potomac, 105 U. S. 630; in England, The Betsey Caines, 2 Haggard, 28; The Inflexible, Swabey, 200; The Star of India, 1 Opinion of the Court. P. D. 466; The City of Buenos Ayres, 1 Asp. Mar. L. C. 169; and in France, Sibille, De l'Abordage, sec. 411; De Fresquet, Des Abordages, pp. 48, 49; Caumont, Dict. Mar. Title Abordage, sec. 224. The difficulty is in determining when the vessel has lost profits and the amount thereof. The best evidence of damage suffered by detention is the sum for which vessels of the same size and class can be chartered in the market. Obviously, however, this criterion cannot be often applied, as it is only in the larger ports that there can be said to be a market price for the use of vessels, particularly if there be any peculiarity in their construction which limits their employment to a single purpose. In the absence of such market value, the value of her use to her owner in the business in which she was engaged at the time of the collision is a proper basis for estimating damages for detention, and the books of the owner showing her earnings about the time of her collision are competent evidence of her probable earnings during the time of her detention. The Mayflower, Brown's Adm. 376; The Transit, 4 Ben. 138; The Emilie, 4 Ben. 235. The mere opinion of witnesses, unfortified by any data, as to what the earnings would probably have been, is usually regarded as too uncertain and conjectural to form a proper basis for estimation, though in a few cases they seem to have been received. The damages must not be merely speculative, and something else must be shown than the simple fact that the vessel was laid up for repairs. Thus, if a vessel employed upon the lakes should receive damages by collision, occurring just before the close of navigation, and she were repaired during the winter, no demurrage could be allowed, since no vessel upon the lakes can earn freight during the winter. The Thomas Kiley, 3 Ben. 228. In The R. L. Maybey, 4 Blatchford, 439, 440, it was said by Mr. Justice Nelson upon the subject of damages that "a good deal of the testimony was general, and turned upon mere opinion as to the probability of employment in the towing business and the amount of the earnings, if employed. This Opinion of the Court. kind of proof is too speculative and contingent to be the foundation of any rule of damages. It is at best but conjecture." On appeal to this court the decree was affirmed, Sturgis v. Clough, 1 Wall. 269, Mr. Justice Grier observing that "the charge for demurrage allowed by him" (the commissioner)" was not justified by the evidence, although there was testimony to support it, such as can always be obtained when friendly experts are called to give opinions. Besides, the libellant withheld the best evidence of the profits made by his boat, which would be found in his own books, showing his receipts and expenditures before the collision." The testimony is not set forth in the report of the case, but on referring to the original record we find that it was much stronger in favor of an allowance of demurrage than the testimony in this case. Five witnesses were sworn by the libellant, who testified that there was a demand in the port of New York for the services of steam tug boats, such as the injured vessel was, and that the value of such a boat was about $100 per day. Four witnesses testifying for the claimant did not deny that there was a demand for such vessels, but put the value of her services at a much lower sum. So in the case of The Isaac Newton, 4 Blatchford, 21, Mr. Justice Nelson rejected the allowance for demurrage founded simply upon the evidence of the master and the mate, as a matter of opinion, treating the allowance as conjectural and speculative. In The Cayuga, 2 Ben. 125, a ferry boat, injured by a collision, was withdrawn for repairs, her place being supplied by a boat taken from another ferry belonging to the libellants, whose place was in turn supplied by a spare boat. It was not shown that the injured boat could have been chartered for any sum for the time she was laid up, but proof was given as to the value of her use, based upon her receipts while running on the ferry. It was held that a judgment as to her charter value, given by men having experience upon the ferries, founded upon their knowledge of the business, was a proper basis for the allowance of demurrage. This case was affirmed by the Circuit Court, 7 Blatchford, 385, and also Opinion of the Court. upon further appeal by this court. purport is The Favorita, 18 Wall. 598. 14 Wall. 270. Of same There are two cases reported in which demurrage was allowed for the detention of a yacht. In one of these, The Walter W. Pharo, 1 Lowell, 437, the total allowance was but $80; and in the other, The Lagonda, 44 Fed. Rep. 367, the yacht had been detained eight days while undergoing repairs, and was allowed by the commissioner $48 as interest upon $36,000, the cost of the yacht. Upon exceptions by the libellant, the court held that the testimony seemed to justify the conclusion that the yacht could have been chartered by her owner for a season of three months for the sum of $6000; that under such a charter the vessel would have earned for her owner in eight days the sum of $552, and gave a decree for that sum. Upon the other hand, however, in the recent case of The Emerald, 1896, P. D. 192, decided by the English Court of Appeals, the question was whether demurrage could be allowed for detention pending the repairs of a vessel (the Greta Holme) used by a body of public trustees for the purpose of dredging and raising wrecks in Liverpool harbor. The court held unanimously that demurrage could not be allowed to the board of trustees, because the vessel was not a source of profit to them. In delivering the opinion Lord Esher observed: (p. 204) "It has peen pointed out, and I think quite fairly, that you cannot recover by way of damages on account of something which you call profit, but of which profit there is no evidence. Then they talk of letting her go to Preston, and that the Preston people would have given £100 a week probably. It is all imagination. The dredger is not kept for the purpose of being let to any one else. . To say that at some indefinite and future time they could have let her if they had not wanted her is too remote for anybody to act upon in giving them compensation for the loss of the dredger by way of damages. It seems to me that the damages were too shadowy and too remote to be the proper subject-matter of damages in the collision." Lord Justice A. L. Smith said: (p. 206) "It is to be remarked that during all the VOL. CLXVI-9 Opinion of the Court. . time that the dredger was sunk and under repairs the harbor board have not, in fact, lost one penny. I agree with the report of the registrar and merchants upon this point. They say that 'the harbor or conservancy board are clearly not in the position of a trading company which is entitled to claim for loss of profit, and although their dredging operations were no doubt delayed by the disabling of this dredger, it does not appear to us that the plaintiffs have sustained any tangible pecuniary loss.'" Lord Justice Rigby said: (p. 208) "The board attempted to show that in some circumstances they might let this dredger; but the evidence failed to fix any definite time when the board would no longer require to use her. It seems to me that the suggested damage which might be occasioned to the Mersey docks and harbor board was mere speculation." In the case under consideration, the only evidence of loss of profits was that of three witnesses, one of whom, Samuel Holmes, a steamboat broker, swore that the reasonable value of the use of the yacht was $3000 per month. He gave the only instance of such a charter within his knowledge the charter of a boat of this size about three or four years before, for about $9000 for a winter trip to the West Indies. "The circumstances were a little different than this though." What those circumstances were, what was the character of the yacht, and how long the duration of the charter, were not stated, and the illustration is of trifling value. The next witness, Hughes, a yacht-broker, stated simply that The Conqueror was worth $100 per day, fortifying his testimony by no fact whatever. The last witness, Thomas Manning, also a yacht-broker, stated the value of The Conqueror from August 27 to February 3 to be about $20,000 for the boat itself without the crew; stating that there was more or less demand for those large boats, but a great difficulty in getting them. Whether the demand at that time was more or less than the average was not stated; nor are any facts given in support of his testimony. expression is wholly indefinite and unsatisfactory. The Perhaps if this testimony were taken literally, without reading between the lines, considering other facts appearing in the |