the charges are extravagant they must be reduced, but for necessary repairs the owners have a right to be reimbursed; and the evidence of skilful persons who saw the ship after the collision is the best proof of that necessity. [S. C. 28 L. T. (O. S.) 220; 5 W. R. 167.] This was originally a cause of collision, promoted by the owners of the American ship" Young Brander," against the " Pactolus," and in which the Court had on the 16th of May 1855, pronounced for the damage, and had referred the accounts to the registrar and merchants to assess the damages. When the case came before the registrar and merchants, the chief point in dispute was as to whether the cost of putting new iron plates and bolts into the "Young Brander" should be allowed or not. It appeared that the " Young Brander" was an American vessel, which had been only recently built, expressly for sale in the English market, and that she was on her way to this country on her first voyage, when the collision in question in this cause occurred. It was stated by her owners that she had been so much shaken by the collision that it became necessary to introduce a quantity of iron plates and bolts between her decks. On the other side, however, it was alleged that, although it might have been very desirable, with a view to increase the value of the ship, to introduce iron plates and bolts, yet that they were not rendered necessary by the collision in question; that it is not unusual for American vessels to be sent to this country insufficiently fastened, in order to their being strengthened with iron plates and bolts, which can be done much more cheaply here than in America; that the Young Brander" was a vessel of this description; that she was insufficiently fastened, avowedly for sale in this country; and that her owners had taken the opportunity presented by the collision to strengthen her with iron plates and bolts, at the expense of the owners of the " Pactolus," and to render her more valuable than she had previously been. It was also stated that the charges in the shipwright's bill were excessive. The registrar and merchants took this view of the case; they thought that the putting in the iron plates and bolts was not rendered necessary by the collision; that they had been put in with a view to strengthen her and to enhance [174] her value; and they accordingly disallowed the whole cost of putting in the iron plates and bolts; they also considered that, looking at the high rate of the charges, a sufficient discount had not been allowed from the shipwright's account, and consequently deducted 4 per cent. additional, and made some other deductions. To this report an objection was taken, an act on petition was gone into, and the case was fully argued on the 18th July 1856. 66 Bayford and Twiss in support of the report. Addams and Curteis, contra. December 23. Dr. Lushington now gave judgment:-The Court has experienced some difficulty in revising the report of the registrar and merchants in this case, and the reasons are very obvious. First, it is not to be expected that the Court can have any practical knowledge either as to what repairs were necessary in consequence of the collision, or whether the charges made for such repairs are fair and just; and these are the questions to be determined; secondly, because the affidavits in this case are most contradictory, and I am entirely without the means of judging to which side the greater degree of credit ought to be attributed; thirdly, because the act on petition in objection to the report, and the answer thereto, do not, and perhaps could not, conveniently afford to the Court any information to assist it in forming its judgment. There are, however, two great principles which are clear; first, that respect ought to be paid to the report of the registrar and merchants, and that the Court ought not to overrule it unless quite satisfied that it is erroneous. This respect is due both because of the practical knowledge of the registrar and merchants in such cases, and also ut sit finis litium, that litigation should not be continued on light grounds, and the expense of proceedings lead to a defeat of justice. Secondly, the principle upon which all these reports should be founded is, I apprehend, undoubted; the parties are entitled to restitutio in integrum, to a complete repair of all the damage done, notwithstanding that the result may be to render the ship more valuable than she was prior to the collision. If, in consequence of a collision, it is necessary to repair a ship, the effect may be to enhance the value, to render her worth more than she was prior to the collision. In cases of insurance, one-third of the value of the material is deducted, because the new material is more valuable than the old, but it is not so where repairs are done in consequence of collision. The value of a [175] ship before the collision, or the value when she has been repaired after collision, are questions wholly foreign to these enquiries. The best evidence is that of persons who actually inspected the vessel after the damage-of persons competent to say what repairs were necessary in consequence of the damage. With regard to the bills incurred for such expenses, they must necessarily, for the purposes of justice, be submitted to examination, and extravagant charges lowered by the opinion of persons conversant with the trade; but I must say it is a very arduous task for the Court to decide when such opinions are conflicting. A decision numero non pondere is worth very little, and the Court has, as I have said, no means of deciding to whom the greater degree of credit ought to be given. I must, however, make another observation-some of the contested questions I have to consider have previously been made the subject of arbitration at Liverpool, and I regret to say without result. If persons best acquainted with the whole subject-matter and with the course of trade in that great emporium of commerce cannot come to an agreement on these matters, I must necessarily conclude that great doubt and uncertainty prevail as to the questions I have to determine. According to the claim ultimately referred to the registrar and merchants, £3265 was claimed, £2402 allowed; £863 was therefore deducted; the great deduction being £770 from the carpenter's bill; half the painter's bill has been deducted, and of the bill for copper, viz. £399, £49 has been taken off; the other items are of very trifling amount. It is expedient now to consider upon what grounds the sum of £770 has been deducted from the carpenter's bill. If it should be proved that this deduction was made because it was established in evidence before the registrar and merchants that repairs were done and additions made which did not become necessary on account of the collision, then the report must be confirmed; but I am of opinion that no evidence as to the general state of American vessels can be put in competition with actual evidence as to the state and condition of the vessel herself; for instance, the best evidence in this case is the evidence of those who saw the vessel after the collision, and deposed to the necessity of repairs; the best evidence in contradiction is that of those who saw the vessel after the collision, and who depose that the repairs were not necessary in consequence of the collision. I am of opinion that I cannot and ought not to rely upon any general evidence as to the fitting out American vessels in these particulars. There are two grounds then upon which no doubt such reductions would be justified, provided the evidence established the fact; first, if the bill be extravagant, the charges exceeding the ordinary and [176] accustomed rate; secondly, if the work done was not rendered necessary by the collision. With regard to the first head, it appears that the registrar and merchants were of opinion that the charges were high, and that a greater discount ought to have been allowed, and accordingly they deducted the sum of £94. Now this is a matter on which they were peculiarly competent to form a correct opinion, and I am not satisfied by the evidence that they have miscarried; I shall not, therefore, in this particular, disturb the report. As to the second head-and no doubt is raised as to the work having been done the question is, whether it was rendered necessary in consequence of the collision? In order to shew that a part of the work was unnecessary-I refer now particularly to the fastenings and matters connected therewith-evidence was received as to the general state of vessels built in America, and that they were generally insufficiently supplied with iron fastenings, and it was therefore contended that the Young Brander" must be deemed to have been in the same plight and condition, and that consequently the deficiency of iron fastenings must have originally existed, and could not have been rendered necessary by any collision. I greatly doubt whether such evidence was admissible at all; but I am clearly of opinion that evidence of that description is not to be put into competition with evidence as to the actual state and condition of the vessel, and as to the repairs necessary to be done in consequence of the collision. As to the original state and condition of this vessel, my judgment must be governed by evidence applying to this particular ship, and cannot be affected by other considerations. So as to the repairs necessary to be done-that is, assuming the original state and condition proved by evidence as to the damage sustained and repairs necessary in consequence of such damage. It would answer no good purpose to read over and comment on the affidavits. I shall refer to one only, brought in by Mr. Tebbs, which I think of great importance in governing my judgment-these are the words:-"The repairs made to the Young Brander' under my direction and that of the other surveyors were general and extensive, in consequence of the vessel having been so much shaken by the collision." Looking at the peculiar nature of this case and of the questions which have arisen, remembering that I cannot bring to the consideration of such questions any knowledge or experience of my own, and recollecting also that I ought under such circumstances to be very slow to reverse the judgment of the registrar and merchants, yet that it is still my duty carefully to weigh and to be governed by the evidence produced; the result to which I have come is, that I affirm all [177] the deductions made by the report as to the excess of the amount of charge, which includes their deduction on account of discount; but I alter the report by determining that all the work done was necessary to be done and ought to be paid for subject to similar deductions as to overcharge; and I must give the costs of the present proceedings to those who objected to the report. F. Clarkson, proctor for the " Young Brander." THE "RODERICK DHU"-(Wm. M'Taggart, Master). December 6, 1856.-Bottomry -Commission-Practice.-On taking the ship's accounts in a cause of bottomry, it was ascertained that, save as to the agent's commission, no money was due as against the ship; and the registrar and merchants reported that the commission was so excessive that on the balance of account, after reducing the commission to a proper amount, the owners of the ship were creditors and not debtors. Bond pronounced against with costs. [S. C. 5 W. R. 168.] This was a suit promoted by Messrs. Fruhling & Goshen, the holders of a bottomry bond upon the ship, cargo and freight. It appears that the Roderick Dhu having met with tempestuous weather, put into the Island of St. Thomas, where her cargo was discharged, and where she underwent considerable repairs. The owners hearing of the circumstance despatched Captain M'Taggart to St. Thomas to see to the ship's repairs, and gave him £4000 to liquidate all the accounts, and afterwards remitted to him £3000 additional. It would seem, however, that before the arrival of Captain M'Taggart, the master had placed the affairs of the ship in the hands of Mr. Emerson, Lloyd's agent and the British consul at St. Thomas, under whose superintendence the repairs to the ship were done. Captain M'Taggart did not, upon his arrival, remove the ship from Mr. Emerson's hands, but paid him the £7000 to settle the accounts. Mr. Emerson, however, brought in an account shewing a balance of about 11,632 dollars due, over and above the £7000 which had been paid to him, and for this balance a bottomry bond on ship, cargo and freight, with a maritime premium of 14 per cent. was given by M'Taggart, who had then become the master, and it was in regard to the validity of [178] this bond that the present suit was instituted. The Court, before pronouncing upon the validity of the bond, referred the accounts to the registrar and merchants, to report thereon. The following is a copy of the registrar's report, and of the schedule annexed thereto : To the Right Honorable STEPHEN LUSHINGTON, Doctor of Laws, Lieutenant Judge and President of the High Court of Admiralty of England. WHEREAS by your decree of the 22nd day of January 1856, you were pleased to refer the bottomry bond proceeded on in this cause, together with all accounts and vouchers brought in or thereafter to be brought in relative thereto, to your registrar and merchants, to report the amount (if any) which should appear to be due upon the said bond. Now I do most humbly report that certain accounts and vouchers having been brought in by the proctor for and on behalf of the parties proceeding in this cause, I did, with the assistance of Messrs. John Cattley and Robert Embleton, of London, merchants, take the same into consideration, as also all the papers and proceedings produced and brought in, together with what was urged by the parties, their proctors and agents, on both sides, and we are of opinion that no sum whatever is due to the said Messrs. Fruhling & Goshen upon the said bond, as appears by the schedule hereunto annexed. And with reference thereto, and to the accounts brought in by the bondholders, we would beg to observe :— (1) That the accounts of Mr. William J. Emerson, who was the agent for the ship during the time she lay at St. Thomas, and was at the same time Her Britannic Majesty's consul and Lloyd's agent in that Island, are, in our opinion, most unsatisfactory, and in many particulars highly improper and objectionable. (2) That the sum stated to have been advanced on the said bottomry bond could only have been required to pay the commissions of the said Mr. William J. Emerson, the amount, charged by him in his account for commissions, being greatly in excess of the sum alleged to have been advanced on bottomry. (3) That the principal repairs to the said ship appear to have been done by the firm of Messrs. Sanbot & Co., in which house [179] Mr. W. J. Emerson is asserted to have been a partner at the time, and which assertion was not denied. (4) That in an account for 4222 dollars 41 cents, charged by the said Messrs. Sanbot & Co. for the said repairs, no specification or details are given for 3900 dollars thereof. (5) That the charge of 5184 dollars 76 cents, made by the said Messrs. Sanbot & Co. for storing the cargo of the said ship, is at the rate of 2 per cent. upon an assumed value of the cargo, which ultimately proved to be excessive. (6) That the charge made by the said Mr. W. J. Emerson of 1532 dollars 37 cents, being a commission of 5 per cent. on his alleged disbursements, on account of the said ship and cargo, is excessive, inasmuch as it clearly appears that, during the time the said ship remained at the said Island, he received from her owners for the said ship's disbursements no less a sum than seven thousand pounds (£7000), which was more than sufficient to pay the whole of the disbursements and all his reasonable charges besides. (7) That the charge made by the said William J. Emerson, of 12,961 dollars 92 cents for his trouble in the matter, is exorbitant, and that the sum of 1000 dollars allowed by us on that account is, in our opinion, amply sufficient. (8) That without entering into a minute examination of the accounts in this case, which the documents furnished to us do not enable us to do, it appears that, after deducting the commissions improperly charged, there was due from the said William J. Emerson to the owners of the said ship the sum of 1095 dollars 18 cents, and not, as pretended, a sum of 11,632 dollars 93 cents from them to him, at the time when the said bottomry bond was executed. (9) That we entertain considerable doubts as to the bona fide character of the whole transaction, and whether in fact Messrs. G. Nunez & Gomez, the gentlemen to whom the said bond was given, ever advanced any money whatever on account thereof. All which is most humbly submitted by Admiralty Registry, Doctors' Commons, 14th June 1856. (Signed) H. C. ROTHERY, Registrar. [180] Schedule referred to in the annexed Report. No. 1. Custom House duties on cargo 2. Labourers discharging and reloading cargo 3. A. Sanbot & Co., storing cargo at 2 per cent. on [181] To this report an objection was taken on behalf of the bondholders, an act on petition was gone into, and the case was argued on the 6th of December 1856. Robertson and Bayford for the bondholders. Addams and Twiss for the owners. December 23. Dr. Lushington now gave judgment:-This case comes before the |