evidence much more liberality is exercised, especially in the admission and consideration of the testimony of experts. The court may take judicial notice of facts as to which it has personal knowledge as regards navigation and seamanship, and as to the force and effect of currents and cross-currents in channels.5 "In all trials in admiralty the testimony of witnesses shall be taken orally in open court, except as otherwise provided by statute, or agreement of parties. When deemed necessary by the court or the officer taking the testimony or by the parties, a stenographer may be employed who shall take down the testimony in shorthand or otherwise and, if requested by the court or either party, transcribe the same. The fees may be fixed by the court and taxed as costs.6 The party who asserts a maritime lien has the burden of proof thereof. The amount of a lien may be established by an account stated.8 In a suit upon a tort, the libelant usually has the burden of proving negligence, but the burden of proving that the vessel was seaworthy usually rests upon the owner or charterer, as the case may be.10 Where a boat is injured while in the possession of the respondent the burden is upon him to 743. The old rule in equity as to the weight of a sworn and responsive statement in the answer, supra, § 331, does not apply. U. S. v. The Matilda, Fed. Cas. 15,741, Brun. Col. Cas. 5 Hughes 44; Sherwood v. Hall, Fed. Cas. 12,777; Eads v. The Bacon, Fed. Cas. 4,232. 2 The Boskenna Bay, 22 Fed. 667; The Fountain City, C. C. A., 62 Fed. 87; The Eleanor, C. C. A., 248 Fed. 472; The Rosalia, C. C. A., 264 Fed. 285, 289; supra, § 329a, note 22. 8 The Rosalia, C. C. A., 264 Fed. 285, 289. See The Conquerer, 166 U. S. 110, 130, 17 Sup. Ct. 510, 41 L. ed. 937. This may be used to show the extravagance of actual expenditures. The Mason, C. C. A., 249 Fed. 721; to prove the cost of repairs which have not been made, The William E. Ferguson, C. C. A., 108 Fed. 984. To prove the value of tobacco damaged by salt water and coal dust when there has been no separation of this from the undamaged tobacco in the cargo, The Rosalia, C. C. A., 264 Fed. 285, 289. 4 The Boskenna Bay, 22 Fed. 667; The Fountain City, C. C. A., 62 Fed. 87; The Eleanor, C. C. A., 248 Fed. 472. 5 The Eleanor, C. C. A., 248 Fed. 472. 6 Adm. Rule 46. 7 The Louis Dolive, 236 Fed. 279. 8 The Hattie Thomas, C. C. A., 262 Fed. 943. 9 Bernstein v. Morse, 261 Fed. 435. 10 The Benjamin Noble, C. C. A., 244 Fed. 95. show how the injury occurred and that he was free from negligence. The best evidence of damage suffered by detention is the sum for which vessels of the same size and class can be chartered in the market; and in the absence of such market value, the value of the use of the boat in question to her owner in the business in which she was engaged immediately before the detention.12 The books of the owner showing her earnings during a reasonable period before, are competent evidence of her probable earnings while she was detained.18 A participation in a survey of damages to cargo is not an admission of liability for the damage,14 As an appeal in admiralty is a new trial 15 it is ordinarily not necessary to take exceptions to the rulings of the trial judge; but it is the safer practice to do so.16 Objections to the admission and exclusion of evidence should be noted below.17 § 583a. Depositions in admiralty. In cases in admiralty much of the evidence is taken de bene esse since the witnesses are, for the most part, seafaring men. This subject has been previously discussed. When such a deposition was taken for use in the District Court of Porto Rico notice of the filing thereof was not required. Testimony in admiralty may also be taken under a dedimus potestatam and by letters rogatory. § 583b. Documentary evidence in admiralty. It has been said to be the better practice to introduce the log of a vessel in evidence after the same has been duly authenticated, rather than to rely upon the testimony of the officer who made the entries, when he cannot do so without refreshing his recollection by reading the same.1 Entries in a ship's log are strong evidence against the party making them.2 A log kept by members of the crew for their own benefit is admissible only against those who made or directed entries therein.3 Invoices on file at a custom house are competent evidence of value. The report of the examination of the provisions or water furnished for the use of the crew of a merchant vessel, when made upon complaint in accordance with the Revised Statutes, is evidence in any legal proceedings.5 § 584. Interlocutory decree and reference. "In cases where the court shall deem it expedient or necessary for the purposes of justice, it may refer any matters arising in the progress of the suit to one or two commissioners or assessors, to be appointed by the court, to hear the parties and make a report therein. And such commissioners or assessors shall have and possess all the powers in the premises which are usually given to or exercised by masters in chancery in references to them, including the power to administer oaths to and examine the parties and witnesses touching the premises. 1 In The question of damages is seldom tried before the court. case the libelant is successful, an interlocutory decree is entered, by which it is referred to a commissioner or referee to ascertain the damages sustained by the libelant, and report thereon to the court. Such a referee has the powers of a master in chancery. The practice before such a commissioner is analogous to that before a master in chancery, but, unlike a master taking proofs before trial, he rules upon questions of evidence.* A court of admiralty has no power to refer the whole case to a commissioner or referee to hear and determine, except by consent; 5 but as error in making such a direction does not invalidate the reference, it may be treated as a reference to compute or assess the damages. Where, by consent, the commissioner has been directed to hear and determine the issues the 8 U. S. v. Reid, 210 Fed. 486. 4 The Rosalia, C. C. A., 264 Fed. 285, 289. 5 U. S. R. S., § 4565, Comp. St. 8354, Pierce's Fed. Code, § 2525. As to evidence in summary proceedings to collect sailors' wages, see infra, § 604. § 584. 1 Adm. Rule 43. 2 Adm. Rule 43. The Eliza Lines, 114 Fed. 307; La Bourgogne, 144 Fed. 781. 3 Ibid. See supra, ch. XXVII. 5 The Bronx, C. C. A., 246 Fed. 809. 6 Ibid. court is without power to rule upon the findings and the exceptions should be dismissed.". Upon the filing of the report by the commissioner, the successful party should serve his opponent with notice of the filing, and of a motion to confirm the report, and thus limit the time within which exceptions may be filed; or the report may be confirmed nisi on motion, without notice, on the return day, which will also fix the time within which exceptions may be filed. The party filing exceptions should notice them for hearing. They must be specific unless all the evidence is attached to the report.9 Then a general exception is sufficient.10 His findings upon questions of fact depending upon conflicting testimony or upon the credibility of witnesses are not disturbed unless clearly erroneous.11 This rule has been extended to cases where his conclusions are based upon documentary evidence.12 It has been said that a court of admiralty may review a finding of fact by a commissioner in a case where a court of equity could not review a similar finding by a master in chancery.13 When a bond or stipulation is given, for the release of property, it should provide at least, when an attachment is dissolved, that the damages shall not exceed the value of the property released with interest at six per centum and costs.14 Otherwise, the interest fixed by the State statutes is usually allowed.15 In cases of tort for personal injuries, only from the time the amount 7 Luckenbach v. Delaware, L. & W. R. Co., 168 Fed. 560. 1 8 The Commander-in-Chief, Wall. 43; The Cayuga, C. C. A., 59 Fed. 483; § 393, supra. But see Ross v. So. Cotton Oil Co. 41 Fed. 152. It has been held that the claimant may move to dismiss at the close of the libelant's case, and take testimony pending that motion without waiving his right to have his motion decided, regardless of the other facts brought out upon the cross-examination of his witnesses. Puget Sound M. Depot v. The Guy C. Cross, 53 Fed. 826. But see amendment to Rule 52, S. D. N. Y. 9 The Paquete Habana, 189 U. S. 453, 47 L. ed. 901. 10 Ibid.; Merritt & Chapman Derrick & Wrecking Co. v. Morris & Cummings Dredging Co., D. C. S. N. Y., June, 1904. 11 La Bourgogne, C. C. A., 144 Fed. 781; The Minnehaha, 151 Fed. 782. 12 The Perry G. Walker, 216 Fed. 423. 13 Western Transit Co. v. Davidson S. S. Co., C. C. A., 212 Fed. 696. 14 Adm. Rule 5. 15 Steamship Wellesley Co. v. C. A. Hooper & Co., C. C. A., 185 Fed. 733; The Newaygo, 205 Fed. 178; of damages has been judicially ascertained.16 In cases of tort for injury to property, such as collision cases where the damages are fixed and certain, from the date when they accrue.17 Interest upon demurrage from the time when the vessel returns to service.18 When the damages are uncertain, only from the date of their liquidation by decree.19 Laches before 20 or after 21 the institution of the suit may be a ground for reducing or disallowing interest.22 The rules of the Southern and Eastern Districts of New York provide: that a defendant may serve a written order to allow libelants, damages to be assessed at a specified sum and that unless the libelant obtains a decree for a larger sum he shall not recover any subsequent costs and expenses upon a reference after the offer.2 28 Upon the expiration of the time allowed by the practice of the District Court for the filing of exceptions, if none have been filed, a final decree may be entered.24 The court has power to consider exceptions filed after the expiration of the time described by the rules.25 The final decree should contain a provision confirming the report. It is not necessary to enter an order of confirmation. § 585. Final decree. The form of the final decree varies according to the form of the action and the nature of the security furnished. In suits in rem, if the res has been bonded, a summary judgment for the amount of the bond may be Cambria S. S. Co. v. Pittsburgh S. 16 The Argo, C. C. A., 210 Fed. 872. 17 Cambria S. S. Co. v. Pittsburgh S. S. Co., C. C. A., 212 Fed. 674; Western Transit Co. v. Davidson S. S. Co., C. C. A., 212 Fed. 696. Re Great Lakes Dredge & Dock Co., 250 Fed. 916. 18 Re Great Lakes Dredge & Dock Co., 250 Fed. 916. 19 The Mary B. Curtis, C. C. A., 250 Fed. 9. As to damages meas ured by foreign currency, see, The 21 Gray's Harbor Tugboat Co. v. 24 In the New York districts four days are allowed from the date of notice of filing the report or from the return-day on which it is confirmed nisi, in which to file exceptions. 25 The Coquitlam City, 243 Fed. 767. |