lumber arrivadby; otbelvesselslli fevt weeks afterwarcls,it was worth as much as they had paid for what they purchased,and that consequently no legal damage of that kind resulted. There is no evidence of any'fall in the market price in the mean time, or that what arrived late could not be sold,·or was not sold,: by the libelants for as much as they had paid in order to fulfill the McLean contract. The burden of proof is upon ;the libelants; and, without some proof of change in market value, there is no basis to recover under this head, except for interest on the amount so purchased during the few weeks that elapsed until their own lumber .arrived to replace that purchased. Upon both these grounds, this item of damage should be disallowed. The Tribune, 3 Sum. 144, 151; Oakes v.: Richardson, 2 Low. 173, 178; The Oily of Alexandria, 40 Fed. Rep. 697, 700. As respects the other item of damage in the extra: cbstof handling other lumber over the cargo waiting 10r the Miller, I have also great doubt. Considered by itsfl1f, it. would he excluded as a remote and accidental consequence; but the evidence shows that the extra expense allowed was incurred instead of the greater expense that would have arisen from removing the Miller's cargo from the dock, where it lay waiting for her, until other transportation could be procured. There is some difficulty in determining the real damage from this cause. The commissioner has endeavored to adjust it, eVidently with scrupulous care, and on the whole I conclude not to disturb his finding in this respect, treating it as a substttuted expense in place of that which would be naturally incident to the Miller's cargo itself, and the necessary rehandling thereof in consequence of the breach of the charter. The R088end Castle, 30 Fed. Rep. 462; The Giulio, 34 Fed. Rep. 909. With the above modification, the report is confirmed.
PETTIE ". BOSTON Tow-BOAT
(Df8trf.ct Court, S. D. New York. December 8,1800.)
TOWAGB-D.uU.GliB-OLD 'VESSEL-INABILITY TO RAISE VESSEL SUNK.
Wben a barge was sunk by being negligently towed upon a sunken rock, and, in of her old and weak condition, wbich rendered raising impossible, she became a total loss, held, that full should be given to this circumstance and' the previous history of the boat by reducing the assessment of her value.
SAME-WEAKNESS NOT CONTRffiUTORT TO ACCIDENT-ApPORTIONMENT.
A previous condition of weakness on tbe part of a negligently sunk not having contributed to the accident or induced the fault, and it not being possible that any express notice of such condition could bave affected the naVigatIOn, and her old and leaky condition being known, held, that these conditions constituted no such fault in the vessel sunk as permitted a division of damages.
On tbeassessment of damages, the recoverr of a muchless sum than claimed for tbe value of an old vessel is not sufficient eVIdence of fraudulent exaggeration to deprive the plaintiff of his statutory right to costs, where the libelant's estimates are largely sustained by reputable Witnesses, .though the court adopt; a muoh smaller valuation. Edward G. Benedict, Esq., of the New York bar.
.1 Reported by
PETTIE'll. BOSTON TOW-BOAT CO.
In Admiralty. On exceptions to commissioner's report. Hobbs Gifford, for libelant. Wilcox, Ada'l1t8 « Macklin,. for respondent.
BROWN, J. Upon all the testimony in this case, I cannot resist the conclusion that the inability to raise the libelant's barge was because she was weak and rotten about her deck and water-ways, so that she could not sink with a hole in her bottom, and lie in a moderate tide even in mild weather, without partially breaking up, and thus become incapable of being raised. This previous condition, however, in no way contributed to the accident or induced the fault of the tug, nor could any notice of this condition be supposed possibly to have affected the navigation of the tug. .I cannot find, therefore, that the barge was partly in fault, so as to direct any division of the damages. The Granite State, 3 Wall. 310. Nor was the loss in part occasioned by an intervening agency, so as to render the loss not th'e natural result of the tug's negligence. Railway OJ. v. Kellogg, 94 U. S. 469, 475; Mould v. The New York, 40 Fed. Rep. 900; The BO'l'dentawn, ld. 682, 688, 689. The result was natural and to be looked for in the case of sinking an old and leaky boat, such as the claimant knew, or have perceived, this boat to be. There is no .evidence of any concealment, nor does it appear that the boat was unfit for the proposed .voyage, but only that she was unfit to have a hole knocked in her bottom, and be sunk, without the risk of total loss. The duty to raise and repair, under such circumstances, if possible, and if anything can be saved thereby, is well settled. Here the accident resulted in a total loss in consequence of the weakness of the barge, which rendered raising impossible. I am quite satisfied that a barge of ordinary seaworthy condition would not have proved a total loss as in this case, and this must greatly affect the estimate of her value as a basis ofrecovery. The history of the barge also is not favorable to any high estimate of her value, and the evidence seems to me to show that she was so old and weak as to be unable to bear sinking without going to pieces. Much as I must regard the judgment orthe commissioner who saw the various witnesses, I nevertheless feel constrained to make a larger deduction from the libelant's estimates olher market value than was made by him. I cannot regard it as credible that the market value of such a barge, that could not sink, through a hole in her bottom, without going to pieces, is any greater than the estimate testified to by the most competent of the respondent's experts. I allow, therefore, $1,750 for the barge, and the report is mod. '\,j · ified It is not entirely clear upon the evidence that reasonable diligence was not used in the endeavor to save the cargo, or that these endeavors were not reasonably prosecuted until bad weather prevented further salvage. With the above modification, therefore,the report of the commissioner is confirmed. It is urged that the libelant should be disallowed the costs of the on thegroundtba.t three-fourths of the testimony. amount-
ing. in all, toahout 600 pages, taken before the commissioner, was made necessary through the libelant's attempt at a fraudulent exaggeration of the value of the barge. It is not contended that the mere fact of a recovery of a much less sum than that claimed is a cause for exercising the equitable power of the court, in admiralty causes, to deprive the successful party of his statutory right to costs. The litigant always has it in his power either to make a legal tender under the rules, or to admit an assessment of damages at a specified sum. If, as in this case, he does neither, but contests every part of the demand, it should be only in a clear case of oppression or of some malpractice· that the statutory costs should be withheld. The Marinin S., 28 Fed. Rep. 664; The Straits of Gibraltar, 32 Fed. Rep. 297. Differences in the estimates of the value of old vessels quite as great as. this are not uncommon; and, considering the difficulties attending such estimates, I am not prepared to find that the qifferences in the present case, ranging from $1,250 to $6,500, prove a fraudulent exaggeration of value. In The North Star, 15 Blatchf. 532, and The Utopia, 16 Fed. Rep. 507, the reductions were much greater, and costs were allowed the libelants. Some special circumstances· are relied on by the respondent as showing fraudulent overestimates of value. These circumstances are not conclusive on that point. The estimates are sustained to a considerable extent by disinterested and reputable witnesses, cannot be supposed accessible to such motives. The costs are allowed as taxed.
THE CHATHAM. HALL fl. THE CHATHAM.
(District Oourt, E. D. Virginia.
COLLJSJON-BETWEEN STEAM AND SAIL-DAKGEROUS PROXIMJTY.
A steamer and a schooner approached each other end on, or nearly so, at the rate of 866 yards per minute, on a bright moonlight night, in a channel 420 yards wide. The steamer kept on her course until within 50 to 70 yards of the schooner, when the master of tbe schooner, alarmed at the danger, changed his course, whereupon the stell.lIler turned and backed. but too late to avoid a collision. Held, that the steamer was liable, since her neglect to keep away from the schooner until within "dangerous proximity" justified the latter in ohanging her oourse.
In Admiralty. ltd Sharp Hughes, for Walke Old and R. H. Baker &: Son, for respondent.
HUGHES, J. This libel is brought by the owner of the schooner F. S. Hall against the ocean stearn-ship Chatham, for damages received in a collision between the two vessels which occurred on the evening of October 4, 1889, on the Elizabethriver, at a point testified to be three-eighths of a mile. qorth of Craney island light-house, and about five and a half