The usage upon the River Ohio is that when the steamboats are
approaching each other in opposite directions and a collision is
apprehended, the descending boat must stop her engine, ring her
bell, and float, leaving the option to the ascending boat how to
pass.
The descending boat was not bound to back her engines, and it
was correct in the circuit court to refuse leaving to the jury the
question whether or not in fact such backing of the engines would
have prevented the collision where the ascending boat was
manifesting an intention to cross the river.
The proper measure of damages is a sum sufficient to raise the
sunken boat, repair her, and compensate the owners for the loss of
her use during the time when she was being refitted.
This was an action of trespass on the case brought by the owners
of the steamboat
Major Barbour, the defendants in error,
against the owners of the
Paul Jones, another steamboat,
for injuries resulting from a collision between the boats.
On the 3d of February, 1848, at a place upon the Ohio River,
about one hundred miles below Louisville, the
Major
Barbour was descending the river, and a collision ensued
between her and the
Paul Jones, which was ascending, by
means of which the
Major Barbour became filled with water
and sank.
On 17 February, 1848, Barrett and others being citizens of
Kentucky, brought an action of trespass on the case against
Williamson and the other owners of the
Paul Jones in the
Circuit Court of the United States for the District of Ohio.
In October, 1849, the cause came on for trial upon the general
issue plea. The jury found a verdict for the plaintiffs for
$6,714.29. The following is the bill of exception taken upon the
trial.
"Seventh Circuit Court of the United States, Ohio District,
Alexander B. Barrett, Robert Clark, Nathaniel D. Terry, Henry Lyne,
James T. Donaldson, William Brown, John B. Sprowle, v. Euclid
Williamson, Thomas F. Eckert, John Williamson. Be it remembered
that on the trial of this cause, evidence was given showing that
before and at the time of the collision mentioned in the pleadings
in this cause, the plaintiffs' boat, the
Major Barbour was
descending the Ohio River and the defendants' boat, the
Paul
Jones, was ascending the same river and heavily loaded, and
the
Major Barbour was light, the
Paul Jones being
a much larger boat than the
Major Barbour."
It was claimed by the plaintiffs, and testimony offered by them,
tending to show that their boat was descending the middle
Page 54 U. S. 102
of the river and that the collision took place at or about the
middle of the river.
It was claimed on the part of the defendants and evidence was
offered to show that their boat was ascending near the Indiana
shore and that the plaintiffs' boat was also running near that
shore, and that the collision took place near that shore. The
plaintiffs also offered evidence tending to show that the
Paul
Jones, a short time before the collision, suddenly turned out
of the Indiana shore and ran across the river into the plaintiffs'
boat, and the defendants offered evidence tending to show that the
plaintiffs' boat a short time before the collision suddenly turned
out from the Indiana shore and crossed the bow of the
Paul
Jones.
Evidence was also given tending to show that the engines of the
plaintiffs' boat were stopped, and the boat floated for some time
previous to the collision, but it was admitted that she did not
back her engines, and it was claimed by the plaintiffs that she was
not bound by the rules or usages of navigation to back her
engines.
Evidence was also given tending to show that the
Paul
Jones, some time previous to the collision, stopped her
engines, and then reversed her engines to back the boat, and made
from one to three revolutions back, and was actually backing at the
time of collision.
And it was claimed by the plaintiffs that their boat's engines
were stopped and the boat floating as soon as danger of collision
was anticipated, and on the part of the defendants it was claimed
that the said
Major Barbour's engines were not stopped
sufficiently early, and that owing to that and her not attempting
to back her engines, she contributed to the collision.
The plaintiffs and defendants also offered evidence of pilots on
the Ohio River tending to show that boats navigating the Ohio River
were bound to observe the following rules in passing each other:
the boat descending, in case of apprehended difficulty or
collision, was bound to stop her engines, and float at a suitable
distance, so as to stop her headway, and the boat ascending should
do the dodging or maneuvering. And some of the pilots also
testified that it was also the duty of both boats to back their
engines so as to keep the boats apart when danger was apprehended,
and to do all they could to prevent a collision; but the greater
part of them said the rule of the river required the descending
boat to stop its engines and float, being at the place of
collision, near the middle of the river. And the defendants'
counsel asked the court to instruct the jury that if by backing the
Barbour's engine, in addition to stopping and floating,
the collision could have been avoided, and the plaintiffs did not
back her engines, the plaintiffs could not recover, and that
Page 54 U. S. 103
plaintiffs were bound to make use of all the means she had to
prevent a collision. And thereupon the court charged the jury as
follows:
"That if the
Major Barbour was in her proper track for
a descending boat, as proved by several witnesses, near the middle
of the river, and the
Paul Jones in ascending the river
was in her proper track, near the Indiana shore, and she turned out
of her proper course, across the river, or quartering, in the
language of some of the witnesses, so as to threaten a collision
with the
Major Barbour, and that as soon as this was
discovered the
Major Barbour stopped her engine, rang her
bell, and floated down the stream, as the custom of the river
required, leaving the ascending boat the choice of sides, and this
was the law of the river, that on the near approach of the
Major she was not required to back her engines, as that
might bring her in contact with the other boat, but might presume
that the
Paul Jones did not intend to run into her, and
that for an injury done to the
Major Barbour under such
circumstances by the
Paul Jones running into her, the
plaintiffs are entitled to recover such damages as appears from the
evidence was done to the
Major Barbour."
"That if the
Major Barbour turned out of her course,
running near the Indiana shore, and this turning out of her course
contributed to the collision, the plaintiffs could not recover.
That where both boats were in fault, the plaintiffs could not
recover. That in such case, the fault of the
Major Barbour
must be such as led to or contributed to the collision. That if the
collision was the result of an unavoidable accident, the plaintiffs
could not recover."
"That should the jury find for the plaintiffs, they will give
damages which shall remunerate the plaintiff for the damages
incurred necessarily in raising the boat and in repairing her, and
also for the use of her during the time necessary to make the
repairs and fit her for business. That the jury were not bound to
give interest as claimed by the plaintiffs, but they would give
such sum in damages as they shall deem just and equitable under the
circumstances."
"To which charge of the court, so far as it relates to charging
that the
Major Barbour was not required to back her
engines, but might presume that the
Paul Jones did not
intend to run into her, and also to so much of the charge as
directs the jury that they might give damages for the use of the
boat during the time necessary to make the repairs and fit her for
business, and also to the refusal of the court to charge or
instruct the jury as requested, the defendants, by their counsel,
except and pray this their bill of exceptions may be signed and
sealed, which is done and ordered to be made a part of the
record."
"JOHN McLEAN [SEAL]"
"H. M. LEAVITT [SEAL]"
Page 54 U. S. 106
MR. JUSTICE NELSON delivered the opinion of the Court.
The plaintiffs in the court below, the defendants here, who were
the owners of the steamboat
Major Barbour, brought an
action against the defendants, the owners of the steamboat
Paul
Jones, to recover damages occasioned by a collision upon the
Ohio River on 3 February, 1848.
The
Major Barbour was descending the river at the time,
and the
Paul Jones ascending, the latter heavily laden and
of much larger size than the former.
Evidence was given by the plaintiffs tending to show that their
boat was about in the middle of the river at the time the collision
took place; that the defendants' boat was ascending the Indiana
shore, and that a short time before the collision she suddenly
changed her course and left the shore, running across the river
into the
Major Barbour causing the damage in question,
while on the part of the defendants it was claimed and evidence
given to show that the plaintiffs' boat was descending near the
Indiana shore and that the collision occurred near that shore and
that the plaintiffs' boat, a short time before it happened,
suddenly turned out from the shore and ran across the bow of the
Paul Jones, causing the damage.
Evidence was also given tending to show that the engine of the
plaintiffs' boat was stopped, and the boat floated as soon as the
danger was discovered and for some time previous to the collision,
but it was admitted she did not back her engines, and it was
claimed that she was not bound to do so according to
Page 54 U. S. 107
the rules and usages of the navigation. While on the part of the
defendants it was claimed and evidence given to show that the
Paul Jones, some time before the collision, stopped her
engines and reversed the same to back the boat, and had made from
one to three revolutions back, and was actually backing at the time
of the collision, and also that the engines of the plaintiffs' boat
were not stopped sufficiently early, and owing to that and not
attempting to back her engines, she contributed to the
collision.
Evidence was further given tending to show that boats navigating
the Ohio River were bound to observe the following rules in passing
each other: the boat descending, in case of apprehended
difficulties or collision, was bound to stop her engines and float
at a suitable distance so as to stop her headway, and the boat
ascending to make the proper maneuver to pass freely.
When the evidence closed, the counsel for the defendants
requested the court to instruct the jury that the plaintiffs ought
not to recover if the collision could have been avoided by
reversing the engines and backing their boat in addition to
stopping and floating, and that the master was bound to use all the
means in his power to prevent a collision.
And thereupon the court, among other things, charged that if the
Major Barbour was in her proper track for a descending
boat, near the middle of the river, and the
Paul Jones in
ascending the river was in her proper track near the Indiana shore,
and the latter turned out of her proper course across the river or
quartering, as stated by some of the witnesses, so as to threaten a
collision, and that as soon as discovered, the
Major
Barbour stopped her engine, rang her bell, and floated down
the stream, as the custom of the river required, leaving the
ascending boat the choice of sides to pass her, and this being the
law of the river, she was not, on the near approach of the boat,
required to back her engine, as that might bring her in contact
with the other boat. She had a right to presume the
Paul
Jones did not intend to run directly into her. And that if any
injury was done to the
Major Barbour, the plaintiffs'
boat, under such circumstances, by the
Paul Jones running
into her, the plaintiffs were entitled to recover.
The court further charged that if the jury should find for the
plaintiffs, they ought to give such damages as would remunerate
them for the loss necessarily incurred in raising the boat and in
repairing her, and also for the use of her during the time
necessary to make the repairs and fit her for business.
I. As to the first branch of the instruction. In order properly
to appreciate it, it is material to notice the relative position
of
Page 54 U. S. 108
the two boats at the time of the collision, which is assumed in
the instruction, and in respect to which circumstances it was
given, and, as claimed by the plaintiffs, the jury would be
warranted in finding. For the principle stated was not laid down as
an abstract proposition or rule of navigation, but one applicable
to the state of the case specially referred to as supposed to have
been made out upon the evidence.
The case was this:
The plaintiffs' boat was in her proper track, descending the
river near the middle, while the defendants' was ascending the same
in her proper track near the Indiana shore. And as the boats were
approaching each other in this relative position, the
Paul
Jones (the defendants' boat) changed her course across the
river towards the middle of the same, somewhat in an oblique
direction according to some of the witnesses, and thereby
endangering a collision. That as soon as this was discovered, the
Major Barbour (the plaintiffs' boat) stopped her engine,
rang her bell and floated, as the custom of the navigation
required, leaving to the other boat the option to pass either her
bow or stern.
It was upon this state of facts the court instructed the jury
that the plaintiffs' boat was not bound to make the additional
maneuver of backing her engines, as that might, under the
circumstances, have brought about the collision she was endeavoring
to avoid, and that for the injury done by the
Paul Jones'
running into her, the plaintiffs' were entitled to recover.
The counsel for the defendants had requested the court to
instruct the jury that if the plaintiffs' boat, by backing her
engines in addition to stopping and floating, could have avoided
the collision, she was bound to do so, and the defendants were not
liable, as the master was responsible for the use of all the means
in his power to prevent it. And the error supposed to have been
committed consists in the refusal to give this instruction under
the peculiar circumstances of the case, and in giving that which we
have stated.
It is not to be denied that the
Major Barbour according
to the position of the boats as assumed in the instruction, had
observed strictly the custom, and usages of the river. But it is
claimed that a state of facts had occurred from the position of the
Paul Jones, whether by the fault of those in command or
not, that made it the duty of the master of the plaintiffs' boat
not sternly to have adhered to this usage, but to have made the
movement insisted upon if by so doing the accident could have been
avoided. This position is founded upon an exception to the general
law of the navigation as modified by the circumstances of the
particular case, by which the master of the vessel not in fault is
bound to make every fair and reasonable effort,
Page 54 U. S. 109
in the emergency, within his power, from due exercise of skill
and good seamanship, to avoid, if possible, the impending calamity.
Upon the water as upon the land, the law recognizes no inflexible
rule the neglect of which by one party, will dispense with the
exercise of ordinary care and caution in the other. A man is not at
liberty to cast himself upon an obstruction which has been made by
the fault of another and avail himself of it if he does not use
common and ordinary caution to avoid it. One person being in fault
will not dispense with another's using ordinary care for
himself.
And undoubtedly if a state of facts had been shown in this case
arising out of the circumstances attending the sudden change of the
course of the
Paul Jones from which an inference might
fairly have been drawn that it was the duty of the master of the
Major Barbour not only to have stopped her engines, but to
have reversed them and backed his boat in order to avoid the
danger, and that by so doing it might have been avoided, the point
should have been put to the jury with the instruction, if they so
found, the plaintiffs could not recover. Before, however, any such
instruction could be properly claimed, the defendants must have
made out a state of the case to which it was applicable, and from
which the omission to make the movement laid a foundation for the
inference of fault on the part of the
Major Barbour.
The fact that it would have prevented the catastrophe is not
enough; circumstances must be shown that would make it the duty of
the master to give the order.
There is no rule of law or of the river that imposes upon him in
such an emergency the obligation to give a particular direction to
his vessel simply because it might avoid the danger. The question
in all such cases is whether, in the exercise of due care and
caution in the management of her at the time in any given case,
such a direction should have been given. If it should, then he is
chargeable with the consequences of the neglect.
Applying these principles to the state of facts in respect to
which the instruction in question was given, we think it will be
found that no error was committed.
The defendants' boat had suddenly turned out of the accustomed
track, which was along the Indiana shore, apparently for the
purpose, if she had any in view, of crossing to the other side, and
as soon as this change was discovered, the engines of the
descending boat were stopped, allowing her to float according to
the usage in such cases for the purpose of enabling the other to
pass across her bow or stern as she might elect.
Now it could not be known -- at least there is nothing in
the
Page 54 U. S. 110
case to show that it was known to the master of the descending
boat -- which of the two courses open to her the other intended to
adopt. If she determined to pass his bow, undoubtedly reversing the
engines and backing his boat would have been a very proper
maneuver; but if she determined to cross his stern, the movement
would have been improper, and might have been disastrous. Either a
forward or backward movement under the circumstances would have
embarrassed the operations of the other boat, as the master had a
right to assume the one descending would adhere to the usage of the
river and leave him free to make choice of his course in passing
upon that assumption.
Under these circumstances, we think it clear it would have been
erroneous to have instructed the jury that the master of the
Major Barbour was bound not only to stop her engines, but
to back her, if by so doing the danger could have been avoided. For
before the neglect to make that movement could be charged as a
fault, it should have appeared that the master knew the colliding
boat intended to pass her bow. In the absence of such knowledge,
her proper position was that which the usage of the river
prescribed -- namely to stop her engines and float, leaving the
other the choice to pass across either her bow or stern. This was
his plain duty not only from the law of the river, but due under
the circumstances to the other boat as affording her the most
favorable opportunity to extricate herself from the danger in which
she had become involved by her own fault in carelessly leaving her
proper track.
II. As to the question of damages.
The jury were instructed, if they found for the plaintiffs, to
give damages that would remunerate them for the loss necessarily
incurred in raising the boat, and repairing her, and also for the
use of the boat during the time necessary to make the repairs and
fit her for business.
By the use of the boat we understand what she would produce to
the plaintiffs by the hiring or chartering of her to run upon the
river in the business in which she had been usually engaged.
The general rule in regulating damages in cases of collision is
to allow the injured party an indemnity to the extent of the loss
sustained. This general rule is obvious enough, but there is a good
deal of difficulty in stating the grounds upon which to arrive in
all cases at the proper measure of that indemnity.
The expenses of raising the boat and of repairs may of course be
readily ascertained, and in respect to the repairs no deduction is
to be made, as in insurance cases, for the new materials in place
of the old. The difficulty lies in estimating the damage sustained
by the loss of the service of the vessel while she is undergoing
the repairs.
Page 54 U. S. 111
That an allowance short of some compensation for this loss would
fail to be an indemnity for the injury is apparent.
This question was directly before the Court of Admiralty in
England in the case of
The Gazelle, decided by Dr.
Lushington in 1844. 2 W. Robinson 279. That was a case of
collision, and in deciding it, the court observed,
"That the party who had suffered the injury is clearly entitled
to an adequate compensation for any loss he may sustain for the
detention of the vessel during the period which is necessary for
the completion of the repairs, and furnishing the new
articles."
In fixing the amount of the damages to be paid for the
detention, the court allowed the gross freight, deducting so much
as would, in ordinary cases, be disbursed on account of the ship's
expenses in earning it.
A case is referred to, decided in the common law courts, in
which the gross freight was allowed without any deduction for
expenses, which was disapproved as inequitable and exceeding an
adequate compensation, and the qualification we have stated laid
down.
This rule may afford a very fair indemnity in cases where the
repairs are completed within the period usually occupied in the
voyage in which the freight is to be earned. But if a longer period
is required, it obviously falls short of an adequate allowance.
Neither will it apply where the vessel is not engaged in earning
freight at the time. The principle, however, governing the court in
adopting the freight which the vessel was in the act of earning, as
a just measure of compensation in the case, is one of general
application. It looks to the capacity of the vessel to earn freight
for the benefit of the owner, and consequent loss sustained while
deprived of her service. In other words, to the amount she would
earn him on hire.
It is true, in that case, the ship was engaged in earning
freight at the time of the collision, and the loss therefore more
fixed and certain than in the case where she is not at the time
under a charter party, and where her earnings must in some measure
depend upon the contingency of obtaining for her employment. If,
however, we look to the demand in the market for vessels of the
description that has been disabled, and to the price there which
the owner could obtain or might have obtained for her hire as the
measure of compensation, all this uncertainty disappears. If there
is no demand for the employment, and, of course, no hire to be
obtained, no compensation for the detention during the repairs will
be allowed, as no loss would be sustained.
But if it can be shown that the vessel might have been chartered
during the period of the repairs, it is impossible to deny that the
owner has not lost in consequence of the damage the amount which
she might have thus earned.
Page 54 U. S. 112
The market price, therefore, of the hire of the vessel applied
as a test of the value of the service will be, if not as certain as
in the case where she is under a charter party, at least so certain
that, for all practical purposes in the administration of justice,
no substantial distinction can be made. It can be ascertained as
readily and with as much precision as the price of any given
commodity in the market, and affords as clear a rule for estimating
the damage sustained on account of the loss of her service as
exists in the case of damage to any other description of personal
property of which the party has been deprived.
In the case of
The Gazelle, for ought that appears, the
allowance of the freight afforded a full indemnity for the
detention of the vessel while undergoing the repairs. This would be
so, as already stated, if they were made within the period she
would have been engaged in earning it. If it were otherwise, it is
certain, that the indemnity allowed fell short of the rule laid
down under which it was made, which was that the party was entitled
to an adequate compensation for any loss he might sustain for the
detention of the vessel during the period which was necessary for
the completion of the repairs and furnishing the new articles.
The allowance of the freight she was earning at the time was but
a mode of arriving at the loss in the particular case under the
general rule thus broadly stated, and afforded doubtless full
indemnity.
We are of opinion therefore that the rule of damages laid down
by the court below was the correct one, and is properly applicable
in all similar cases. There was no question made in respect to the
freight of the vessel, and hence the general principle stated was
applicable, irrespective of this element, as influencing the
result.
There were some other questions raised in the case of a
technical character and urged on the argument. But we deem it
sufficient to say that they are so obviously untenable that it is
not important to notice them specially.
We are of opinion, therefore, the judgment of the court below
was right, and should be
Affirmed.
MR. JUSTICE CATRON dissented, with whom MR. CHIEF JUSTICE TANEY,
and MR. JUSTICE DANIEL concurred.
MR. JUSTICE CATRON.
This action is one of owners against owners of respective
steamboats. It is an action on the case, in which no vindictive
damages can be inflicted on the defendants, as they committed no
actual trespass, and therefore, in assessing damages against them,
moderation must be observed.
Page 54 U. S. 113
In the next place, the collision occurred on the Ohio River, and
the rules of law applicable to the controversy must accommodate
themselves to that navigation.
The injured boat was sunk, and the plaintiffs declared for a
total loss, but it came out in evidence that she was raised and
repaired, and again commenced running the river. On this state of
facts, the jury was charged 1st, that damages should be given for
raising the boat; 2d, for repairing her, and 3d, also damages in
addition, "for her use, during the time necessary to make the
repairs and fit her for business."
The expression "for her use" must mean either the clear profits
of her probable earnings or how much she could have been hired for
to others during the time of her detention. Both propositions come
to the same result, to-wit, how much clear gains the owners of the
Major Barbour could have probably made by their boat, had
she not been injured, during the time she was detained in
consequence of being injured. This probable gain, the jury was
instructed to estimate as a positive loss, and to charge the
defendants with it.
The suit is merely for loss of the boat, and has no reference to
the cargo. It does not appear that she had either cargo or
passengers, nor does the evidence show in what trade she was
engaged.
In cases of marine torts, no damages can be allowed for loss of
a market nor for the probable profits of a voyage, the rule being
too uncertain in its nature to entitle it to judicial sanction.
Such has been the settled doctrine of this Court for more than
thirty years.
In the case of
The Amiable
Nancy, 3 Wheat. 560, when discussing the propriety
of allowing for probable loss of profits on a voyage that was
broken up by illegal conduct of the respondents' agents, this Court
declared the general and settled rule to be that the value of the
property lost,
at the time of the loss, and in case of
injury, the diminution in value by reason of the injury, with
interest on such valuation, afforded the true measure for assessing
damages. "This rule," said the Court,
"may not secure a complete indemnity for all possible injuries,
but it has certainty and general applicability to recommend it, and
in almost all cases will give a fair and just recompense."
And in the suit of
Smith v.
Condry, 1 How. 35, it is declared that in cases of
collision, "the actual damage sustained by the party at the time
and place of the injury is the measure of damages." In that case,
there was detention as well as here, but it never occurred to
anyone that loss of time could be added as an item of damages. In
other words, that damages might arise after
Page 54 U. S. 114
the injury and be consequent to it, and which might double the
amount actually allowed.
The decision found in 3 Wheat. was made in 1818, and I had
supposed for many years past, the rule was established that
consequential damages for loss of time, and which damages might
continue to accrue for months after the injury was inflicted, could
not be recovered, and that there was no distinction in principle
between the loss of the voyage and loss of time consequent on the
injury.
The profits claimed and allowed by the circuit court depended on
remote, uncertain, and complicated contingencies to a greater
extent than was the case, in any one instance in causes coming
before this Court where a claim to damages was rejected for
uncertainty.
Here, full damages are allowed for raising the boat and for her
repairs. To these allowances no objection is made; it only extends
to the additional item for loss of time. That the investigation of
this additional charge will greatly increase the stringency,
tediousness, and charges of litigation in collision cases is
manifest; nor should this consideration be overlooked. The expense
and harassment of these trials have been great when the old rule
was applied, and the contest if the rule is extended must generally
double the expense and vexation of a full and fair trial. Nor will
it be possible, as it seems to me, for a jury, or for a court where
the proceeding is by libel to settle contingent profits, on grounds
more certain, than probable conjecture. The supposition that the
amount of damages can be easily fixed by proof of what the injured
boat could have been hired for on a charter party during her
detention will turn out to be a barren theory, as no general
practice of chartering steamboats is known on the western rivers,
nor can it ever exist, the nature of the vessels and the
contingencies of navigation being opposed to it. In most cases, the
proof will be that the boat could not have found anyone to hire
her, and then the contending parties will be thrown on the
contingency whether she could have earned something, or nothing,
little or much, in the hands of her owner during the time she was
necessarily detained, and this will involve another element of
contention of great magnitude -- to-wit, whether she was repaired
in reasonable time. Forasmuch as no necessity will be imposed on
the owner to bestow the repairs, as is now the case, he will rarely
if ever do so, and having the colliding boat and her owners in his
power, gross oppression will generally follow in applying this new
and severe measure of damages to western river navigation.
In a majority of cases of collision on the western waters,
partial
Page 54 U. S. 115
injury, repairing, and detention of the injured boat occur.
Contests before the courts have been numerous where the precise
question of compensation here claimed was involved, and yet in an
experience of twenty-five years, I have never known it raised until
now. The bar, the bench, and those engaged in navigation have
acquiesced in the rule that full damages for the injury at the time
and place when it occurred, with legal interest on the amount, was
the proper measure; nor do I think it should be disturbed, and that
therefore the judgment of the circuit court should be reversed
because the jury were improperly instructed in this particular.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Ohio, and was argued by counsel. On consideration whereof it is now
here ordered and adjudged by this Court that the judgment of said
circuit court in this cause be and the same is hereby affirmed with
costs and damages at the rate of six percentum per annum.