mal justification. The suit also has, at every step, been prosecuted with great diligence, so as to reach a judgment before the Alaska should need t,o depart. So far, therefore, is the case from presenting any evidence of harsh or oppressive conduct on the part of the libelants' proctors, that it seems to me eminently the reverse of that, both as respects the ship and the stipulators for the cargo. The libelants' proctors, in consulting the interest and convenience of both ship and cargo, have more than met all the obligations of professional courtesy; and there is no reason, therefore, for withholding the usual allowance of costs. To this I make a partial exception as respects the expense of the depositions taken at Liverpool, for the reason that the survey ihere was taken without to the respondents, and that the facts were not presented to the witnesses and the opposing counsel, in ref. erence to the circumstances of the last trip, which had an essential bearing upon the whole examination. This portion of the costs is therefore disallowed. A decree may be entered in conformity with this opinion.
THE CITY OF NEW YORK.
(District Court, 8. D. New York.
COMMISSIONERS' REPORT DENCE.
April 29, 1885.)
EVIDENCE AS TO VALUE OF VESSEL -
A collision occurred between the steamer City of New York and the iron bark H., which resulted in the total loss of the bark and injury to the steamer. On the trial both vessels were found in fault, the damages were directed to be divided, and the matter referred to a commissioner to take proof of damage. In the testimony as to the value of the bark, it was shown that no sale of an iron vessel had ever taken place in New York, and market value could not be proved here. Libelants offered the testimony of one witness, an insurance inspector, who had seen the bark six years before; but they did not issue a commission to Dundee, where the bark was built, to obtain evidence of her value, either from cost of construction or from known sales of similar vessels. Respondents' witnesscs, who were equal as experts to the witness of the libelants, put a lower value on the bark. Held that, as libelants had not produced the best evidence in their power, the estimates of respondents' witnesses must be adopted. AS TO V ALUE OF STORES. Test,imony as to the ship's stores was given chiefly by the mate of the bark, who made a list of t.hem from his recollection. No evidence was given as to the the actual purchase of stores. Held, that the estimate of the value of a vessel ordinarily includes her usual outfit. As there was nothing in the mate's testimony to indicate how m'lch of the stores of the bark was in excess of her usual outfit, some deduction must be made on this account.
SAME-Au.OWANCE FOR SUPPoslm
Stores which it was alleged such vessels as the H. usually carried, but which were not inCluded in the mate's list, and as to which there was no direct evidence, held, disallowed.
SAME--DEPHECIATION OF CARGO-INVOICE VALUE TIlE STANDARD.
The cargo of the bark was sugar, laden at Havana. It was proved that on such a cargo tiS this there is 1\ loss of weight, from Havana to New York, of from 3 to 5 per cent.; lind, as the bark was lost within half a day's sail of New York, the owners of the ste:lmer contended that a deduction to that amount
should be made from tlle invoice weight. Held, that the rule allowing the in"Voice value of the cargo at the port of shipment applies to the value of the cargo there as a whole, and that no deducLion for natural loss or shrinkage in weight merely could be allowed.
The steamer was obliged to uut back to New York for and part of her cargo was there taken out aL',d stored on the steamer's wharf. All allowance was made to the owners of the steamer fur the:r expenses in unloading allll loading again, and f"U' storage; itn addition to which they claimed an agency commission for care of cargo. Held, that such claim, in addition to storage, should be disallowed, it appearing that they had stored the cargo in their own buildings.
In Admiralty. Scudder cJ; Garter and Geo. A. Black. for libelants. A. O. Salter, for respondents. BROWN, J. In the above cause of collision, the court having pre'viously held both vessels in fault for the loss of the iron bark Helen and her cargo, in June, 1879, (15 FED. REP. 624,) upon the coming in of the commissioner's report on damages, numerous exceptions have been filed by both parties. The examination by the commissioner of the many details of the case has been made with care, and I do not find sufficient reason to attempt any better solution of most of the difficulties presented. Some modifications as to the value of the ship and her stores should, I think, be made, with a view to reo quire, in such cases, the production of the best evidence, rather than approve a practice which would rest content with evidence of a less satisfactory character. 1. As to the value of the bark, the libelants produced but one witness, a marine insurance surveyor and inspector. He saw her once in 1873, when he examined her for the purpose of rating, and classed her as "AI!." He did not value her at that time, and had not seen her since. It was part of his business to keep posted in regard to reports of sales of vessels. No sales of iron ships, however, have ever been made in this port; and he had no actual experience, either in buying, selling, building, or equipping such vessels, and had no personal knowledge of the sales or cost of construction of iron vessels like the Helen, or of any other iron vessels, though he had frequently valued them for insurance purposes. This witness valued the bark, at the time of her loss in 1879, at $15,000. This evidence was objected to by the claimants' counsel as incompetent. The commissioner at first rejected, but afterwards received it. The vessel belonged in Dundee, where her owners resided. It would not have been difficult for the libelants to prove her actual value by persons in Dundee or in England, that had knowledge of the bark and of her real value, based upon their experience in the sales of such iron vessels, or in the cost of building and equipping them, and upon their yearly depreciation. I am inclined to think that the testimony of this witness was rightly received as not wholly incompetent. His large and constant experience in the valuation of vessels generally, and his knowl-
edge»thongh indire.ct and at second hand» of reported. sales and of the construction of iron ships abroad, with his valuations of them for insurance purposes here, makes him competent, I think,to give an estimate of their value when no better evidence can be had. For some purposes, in the course ofac1miralty proceedings, such as in appraisements for giving security, the estimates of such witnesses would be practically sufficient. But it is far from satisfactory as a sale reliance when the final question comes, how much money shall be paid for the actual value of such a vessel lost? The best evidence that can be obtained with reasonable ease and convenience ought then to be required in place of the estimates of such witnesses. There is no reawn to suppose that entirely satisfactory evidence could not easily have been obtained by commission. So far as I have ascertained, the previous .and ,they are many, in which the estimates of experts have these estimates were based upon a knowledge of sales been' of. similar vessels» or of other facts bearing upon their actual cost and market value. . The libelant having rested upon the estimate of this witness, t.he claimant presented the testimony of a similar witness equally well qualified in general respects; but he had never seen the veHsoi. He estimated her value at $13,815, which valuation the commissioner adopted. ,A second witness for the claimant, who also had never seen the bark, but had more practical acquaintance with the construction of iron vessels, their cost from time to time, and with sales of such ships, estimated her at $3,000 less. in the power of the libelant Where the best evidence to give, is not furnished, lower estimates by the respondents' wit. nesses that are, at least, equally well qualified, ought to be adopted. Upon this ground I reduce the valuation of the Helen to $12,500. 2. Somewhat similar considerations apply to the evidence submitted by the libelant as to the amount of the ship's stores and her outfit,not included in the estimate of the value of the vessel. The mate, in bis oxiginal deposition in the canse, made out a list of items called "Stores on board the late bark Helen." The list consists of some 50 diffei'ent items, beginning with "2,240 lbs. (one ton) of bread." The whole list, being valued by othel' experts here, amounts to $3,769.81. About one-half of this amount is made up of five hawsers, tbree new sixty-fathom lines, two coils ratlines, one-inch three-line manilla; and fOllr new sails are added, making$418 more, The mate test!ified that in Miuch previous, the ship had been fitted out for a three years' cruise; and in another -place he says the bark took in stores at Havana, and at the time of the loss 'hac!. some of the stores that he took in there. Here, again, no evic1ellce was offered of the actual purchase of such a large quantity of stores, although it was presumably easily within the power to p.rdduce such proof.. The mate's testimony was an estimate from recollection. The estimate of the value Df a vessel, rnpreover; ordi.narily 'inclvdes her usual outfit, and em-
TUE OITY OF
braces such spare sails, rope, and hawsers as are usual. There is nothing in the mate's testimony to indicate with any certainty how much of such articles was in excess of such a reasonable and ordinary outfit of the ship. Upon this gr01md I disallow one half of the new sails, namely, $209.25, and one quarter of the charge for hawsers and lines, namely, $4-50. 3. Three hundred dollars, moreover, was allowed upon the hypothetical testimony that such a ship must have had other articles that the mate failed to specify in his list; such as tea, tobacco, etc., which it is said such vessels always have. I cannot sanction such hypo· thetical charges when other evidence is in the power of the party. As respects such articles, moreover, there is no evidence that any stock worth mentioning remained on hand when the bark had arri"od within a day's sail of New York; or that they were not designed to be replenished hero, in the same way that other stores had been taken in at Havana. This item must, therefore, be disallowed. 4. The claimants further contended that they were entitled to a reduction of from 3 to 5 per cent. on the lnvoice value of the cargo of sugar, which amounted to $19,260.57, on the ground that it was proved that there is always a shrinkage in weight to the extent of from 3 to 5 per cent. I do not think this deduction comes fairly within the rule applied in cases of collision, that adopts the value at the port of shipment' rather than that at the port of destination. The rule is designed to exclude anticipated profits. The ultimate object is to determine the actual loss at the time and pllwe of collision. This is found, say the snpreme coort, by taking "the prime cost, or market value of the cargo at the place of shipment, with all charges of lading and transportation, including insurance and interest, but without any allowance for anticipated profits." The Scotland, 105 U. S. 24, 35; The Aleppo, 7 Ben. 133; The Lively, 1 Gall. 315, 322. '1'he loss or shrinkage referred to here is not a special loss arising through any perils of the seas or washing away, which would doubtless be deducted, if proved; but the natural shrinkage in weight that aCCOlllpanies all transportation of such cargoes. The "prime cost of this cargo," as it existed at the mOlllent of collision, was its cost as a whole at Havana. Though not physically identical with the shipment at Havana, through a shrinkage in weight, it was commercially identical. The loss of weight is made up by the increase in value,-not the market value, but the intrinsic value,-which remains the same for the cargo as a whole. 'l'he intent of the rule above referred to is, therefore, carried out by retaining unchanged the gross value of the cargo as a whole, the same as at the port of shipment. This exception is, therefore, disallowed. 5. As respects the exceptions on the part of the it would appear that the omission of the proportionate part received for old copper was an oversight which should be corrected. I think also that the allowance of $333.33 as an agency com!llission to the .claimants
for care of the cargo must, in this case, be disallowed. They placed
the cargo, or so much of it as was unladen, in buildings upon their own wharf; and they have been otherwise allowed for all the labor and expense attending it, and also a charge for the storage of it, as well as for watchmen. I do not understand that there was any additional responsibility on the part of the claimants not compensated for by these items; and when they store the goods themselves, and receive compensation for storage, and do not procure it elsewhere or by other means, I think that an additional commission cannot be allowed. 7'he Edwa1'd Albro, 10 Ben. 668, 685; The J. C. Williams, 15 FED. REP. 558, 560. Having deducted $450 from the stores included in the Whitlock estimate, a deduction of 10 per cent. from the price of such articles new will be a sufficient abatement on what remains of that list, making that list of items $2,574.28 instead of $3,310.31. I do not find any sufficient reason for modifying the other items excepted to on either side. The result of these modifications is to reduce the libelant's claim, with interest, by $2,311.42, making his claim, including cargo, $50,981.33; and to reduce the defendants' claim, including interest, by $873.18, making their claim amount to $7,876.39. One-half the difference between these sums is $21,552,4,7, for which sum, with interest from March 24, 1885, the libelant is entitled to judgment, with costs. Any further questions as respects liability for cargo are reserved.
CARGO OF IRON ORE. 1
(District Court, S, D. New York. l'tlarch 22, 1885,)
DEMURRAGE-ExCEPTIONS IN CHARTER-" j)'ROST."
'!'he charter of the bark E. from Carthagena to New York provided that she should take on board" say 600 tons of iron ore, to be loaded and discharged at therateof70tonsper ,.' day;" the cargo "to be l'eceivedanddelivered as customary," and "to be delivered as directed by the consignees," the charterers to have" the option of averaging the days for hading and discharging," etc., "lay days to commence at six o'clock in the morning, after the ship is reported, and all ready to load or discharge;" and among the exceptions to demurrage charges was hindrance from" frost." The claimants first directed the ship to Jersey City, but on the captain's objecting, they agreed that she might go to Atlantic docks, Brooklyn, and there discharge in lighters. While there, the weather became very cold, and the accumulated ice delayed the discharge by making it difficult for the lighters to be shifted in order to trim the cargo, and this libel was filed for eight days'demurrage in consequence. Two of the days were lost at Carthagena. Held, that the wedging in of the IighteB by the ice, and the consequent delay in discharge, was a result of "frost," such 8S to bring the delay under that exception in the charter-party.
lReported by RD. & Edward BenedIct, Es'ls., ofllle New York bar.