MEMPHIS & ST. L. PKT. CO. V. STEAM-BOAT H. O. YAEGER.

92'1

quesi;i,m of the amount of ·damage. was withdrawn from the usual mode of trial by reference. The claimants were not called upon au the trial to bring out ihe strength of their case on this point. As the height of the water was not material to the determination of their liability, which was the question .tried, they are not concluded by; the inference drawn by the court from the proofs as to that point. This observation in the opinion might well have been omitted as wholly unnecessary to the point to be decided. Neither the' decree' nor the minutes nor the briefs of counsel show any stipulation, nor anything equivalent to a stipulation, or an order of the court that this question should be passed on at the trial. The opinion expres sed on ·the point musMherefore be regarded as at most a dictum expressing the opinion of the court on the .proofs as they then stood,. not in any way precluding either party from introducing any competent evidence before the commissioner touching the ext&nt of the damage caused by the flooding of the ship on the night of the twenty-eighth of December. The commissioner will proceed in accordance with this decision.

THE MEMPHIS

&

ST. LOUIS PACKET

Co. V. C. YAEGER and others.

STEAM-BOAT

H.

(District Court, E. D. Missouri.

1.

COLLISION-DAMAGES. -

November 23,1880.)

The expenses from the port of departure to the place of collision, and of return to the port of repairs, will not be allowed in damages.

In Admiralty. On exceptions to commissioner's report. Noble et OrriclC, proctors for libellant. Given Campbell, proctor for libellee. TREAT, D. J. The court having hi:lretofore decided that the collision was one of mutual fault, the only question remaininG wa3 to determine the amount of damages, and

928

REPORTEB.

apportion them accordingly; that is, a moiety of the aggregate against each of the parties. Exceptions by libellant are thai the expenses from port of departure to place of collision and return to port of repair (which is pod of departure) have not been allowed. The rule is "restitutio in integram;" but, to ascertain under that rule what is allowable, the courts have been compelled to exclude the inquiry into speculative or possible profits. It may Beem that the full restitution against a maritime tort should cover all the expenses of flo voyage; yet it may be that the voyage was a losing one, and hence its interruption was no actual loss. Where loss of freight occurs,-that is, net loss,-the amount may be included; but there is no such item here. Hence the libellant's exceptions must be ruled. The Baltimore, 8 Wall. 377; The Cayuga, 14 Wall. 270; The Atlas, 93 U. S. Rep. 302. None of the cases cited do more than state the general rule; yet that rule, in its application, must control. Respondent, on the other hand, excepts on the ground that the demur'rage is fixed at too high a rate. An examination of the testimony shows that $100 per day would be a fair rate for a charter-party, instead of. $140 per day. The exceptions of respondent are sustained; and, instead of sending the cause back to the commissioner, the amount of damage will be reduced accordingly.
NOTE.

See Guibert

Son. v. The British Ship George Bell, 3 FED. RE1>.

MI.

END OF CASES IN VOL. 4