Page:Federal Reporter, 1st Series, Volume 4.djvu/940

 926 federal befobteb. �from ail the testimony bearing upon the question as to the height to which the water rose among the bags of sugar in consequence of this flooding. The controlling circum- stance in reaching this conclusion was the fact that only about 1,300 bags of dry sugar came out of the ship, while the evidence on both sides tended strongly to show that there were before the flooding a much larger number of dry bags in the vessel. Upon the reference, however, it has been claimed by the libellant that it is a point determined in the cause that the water did rise higher among the bags of sugar on the morning of the 29th than it had ever been before. The claimants, on the other hand, desire to introduce evi- dence before the commissioner tending to show that the water did not rise so high on the morning of the 29th as it had been previously; and this is an, application to the court for a reconsideration of this finding of fact, or to ascertain whether this question is open upon the reference. The only question relating to this flooding of the ship, really before the court for determination upon the trial, was the question of the ship's liability for the damage occasioned thereby. The question of amount of damage was reserved, and intended to be reserved, for the reference in accordance with the almost invariable praetice of the court. In discussing the proofs, as bearing on the question of liability, a narrative of events was given in the opinion delivered, in the course of -which the remark above quoted was made. So far as the question of liability for the ensuing damage was concerned, it was immaterial whether the water rose in the cargo on the morning of the 29th one foot or seven feet. The resuit would and must have been the same. While witnesses were examined by both parties as to the height of the water, and while the effect of the evidence in that respect was very oarefully commented on bylibellant's counsel, and somewhat, also, by claimants' coun- sel, as appears by his brief, yet I am satisfied that this ques- tion, which is ohiefly important as afïecting the amount of damages, was not submitted, nor understood by the court to have been submitted, upon the trial as a point to be then cor clusively determined, or that any question involved ?ji tbù ����