The inability to repair the Chappell, a circumstance precluding it from earning a freight, must therefore be deemed to have abrogated the other provisions of the special average agreement, whether favorable to the libelant or the respondents. As an equitable disposition of this matter I am prompted to follow the general rule applicable where services are performed for a consideration which turns out to be impossible of performance or unenforceable. Since it would be unjust to allow one party who has derived a benefit from the part performed to retain that without paying anything, an implied contract arises to pay the reasonable value of the services. See 3 Williston on Contracts, Secs. 1972, 1973. Therefore the libelant is entitled to recover for the carriage of the cargo by the Hines the reasonable value of that service. This conclusion is also supported by the provisions embodied in the liberties clause of the Chappell charter.
While it was agreed at the trial of this matter to defer the calculation of amounts due libelant, if any, to a subsequent hearing, I deem it appropriate to note certain observations on this subject at this time. Any recovery on a quantum meruit basis cannot exceed, in any case, that which would have been earned by libelant had the special average agreement been performed favorable position because of nonperformance. It was indicated, for example, by a witness for libelant that there was no established or customary freight rates for a carriage of a cargo of manganese from Dakar, although, if such a rate could be ascertained, it would probably be much higher than from Takoradi. Since the second freight to be earned under the special average agreement contemplated a carriage from Takoradi, the Takoradi rate fixed by the parties would establish a maximum beyond which the libelant could not recover. This is not to indicate my approval of libelant's view that it is entitled to recover for the Hines carriage as if there had been for it a separate and independent charter similar in terms to the original Chappell charter but without the necessity of taking any deductions for commissions, dispatch, etc. from the total contract price as provided in the original Chappell charter.
It is evident that the established freight rate from Takoradi reflects the inclusion of conventional deductions. In the calculation of the quantum meruit award the libelant should not have the benefit of charges normally paid by it. Thus, even though no commissions were paid for this carriage, a deduction should be taken for their usual amount from the freight. In addition, the respondents are entitled to a credit for dispatch and discharge on the Hines cargo estimated on such terms and charges as are customarily allowable which, in this case, would be the standards set forth in the original Chappell charter. In the light of the dispute at the trial between the parties as to the accuracy and validity of the amounts reserved by respondents to satisfy the credits claimed by them further proofs must be submitted at another hearing as indeed it was proposed at the trial.
In addition the libelant must recover its freight for the original voyage of the Chappell as if it had been abandoned, but with modifications. In this view ordinarily there would have been no dispatch or discharge to be claimed against the fixed rate for the cargo was transshipped from the Chappell to the Hines. However, allowance against the fixed rate for discharge and dispatch of this one cargo shall be reflected, as previously noted, in the quantum meruit calculations of the Hines carriage. The cost of transshipment of the cargo from the Chappell to the Hines is not recoverable in this suit. The libelant has made no references to or claim for it and apparently it falls into the allowance earned by the Hines while waiting and loading at Dakar to be recognized in the general average. This was contemplated by the special average agreement and while that contract dissolved yet the libelant should not profit to a greater extent than provided by it.
The libelant challenges the right of respondents to deduct for commissions from the aggregate freight due on the Chappell charter, asserting that the commissions were a liability of the vessel. Exploration of the merits of this issue was deferred at the trial on the assumption that the question would be resolved at a later hearing to be held for the purpose of calculating damage. It was also implied that the parties could perhaps compose their differences as to this item pendente lite. If they still contest the item of commission the merits of the question should be litigated at a further hearing in this matter, provision for which will be made herein.
The complexity of the calculations designed to be made as a result of this opinion is such that the court deems it necessary to conduct another hearing to frame clearly the problem to be submitted. Monday, October 13, 1952, at 10 a.m., in Courtroom No. 2 in the federal building at Trenton, New Jersey is fixed as the day for such hearing, at which time the matters requiring further proofs as heretofore mentioned, will be considered.
The disposition of the suit outlined herein refutes the cross-libel of the respondent, Union Carbide, that the attachment of the cargo was so arbitrary, excessive and illegal as to warrant recovery of the damages claimed by it. Hence it will be dismissed.
Settlement of an order for judgment on this opinion should be deferred pending the further hearing as fixed herein.