Page:Federal Reporter, 1st Series, Volume 4.djvu/939

 ïhb 8hip shand. 925 �The Ship Shand. �(District Court, S. D. New York. November, 1880.) �1. Damages— REFERENCE— Phactice. �In the opinion under which a final decree in admiralty is entered, detennining the question of lialiility, and directing a reference to a United States Commissioner to ascertain the amount of damages, a a statement by the court as to a fact aSecting the amount of damages, and not material to a determination of the question of liàbility, is not binding, and does not preclude either party from introducing any competent evidence before the commissioncT touching the estent of the damage. �In Admiralty. �jB. D. Benedict, ioi libellant. �T. E. Stillman, for claimants. �Choaïe, d. J. In this cause, .which was a suit to recover for non-delivery of cargo according to terms of bills of lading, the libellant bas had a decree on the ground that the master and crew of the vessel were negligent in not protecting her cargo of sugar against damage which threatened to injure it through the known leaky condition of the vessel on her arrivai at her place of discharge. A reference was ordered to com- pute the libellant's damages. It appeared upon the trial that the cargo had already sustained damage by sea water, -which was properly to be attributed to a peril of the sea, and the evi- dence tended to show that the water had been, before the arrivai of the ship at her pier, more than six feet above the bottom of the cargo of sugar, The principal charge of negli- gence, on which the liàbility of the ship for subsequent dam- age was sought to be based, was in suffering a steam-pump employed by the master to pump the ship out to stop during the night of the twenty-eighth of December, so that in the morning the ship was again flooded with sea water. In the written opinion of the court occurred this passage with ref- erence to the condition of the ship on the morning of the 29th: "The lower hold, where the sugar was stowed, was flooded. The water had risen higher among the mats of sugar than it had ever been before." Such seemed then to me to be, and still seems to be, the proper inference to be drawn ����