
    THE HUGO. BRAUER et al. v. COMPANIA NAVIGACION LA FLECHA.
    
    (District Court, S. D. New York.
    July 8, 1893.)
    1. Shipping — Loss ob Cargo — Cattle Ship — Jettison—Necessity.
    One hundred and twenty-nine cattle, out o£ a shipment of 165, on board the stoamsdiip Hugo, were thrown or driven overboard by the officers of the ship, in bad weather, during- a voyage from New York to Liverpool. The officers of Uie ship claimed that the weather was so violent that the sacrifice was necessary to save the ship. This was denied by the cattlemen on board. On all the evidence the court found that the necessity for clearing the decks of the cattle was exaggerated hy the officers of tlxe •ship, and accordingly held that file vessel was liable for the loss of all sound cattle, or such as were not, fatally wounded or maimed at Lie time they were cast overboard, or were negligently or designedly suffered to go overboard through the open gangways of the ship.
    2. Bill os Lading — Stipulations — Exemption prom Negligence — English Law.
    A clause in the bill of lading- providing that the cattle “were to be at owner’s risk; steamer not to be held accountable for accident to, or mortality of the animals, from whatever cause arising, * * * or negligence of the shipowner,” — was held invalid to protect the ship in this case, as was also the further stipulation which would substitute the British law for our own.
    In Admiralty. Libel for damage to cattle. Decree for libel-ants.
    McFarland & Parkin, for libelants.
    Butler, Stillman & Hubbard and Mr. Mynderse, for respondents.
    
      
      Reported by E. G. Benedict, Esq., of the New York bar.
    
   BROWN, District Judge.

The above libel was filed to recover damages for the loss of 129 cattle, out of a shipment of 165, upon a voyage of the steamer Hugo from New York to Liverpool in October and November, 1893. The steamer sailed from (his port on the 24th of October. During three days from October 30th to November 3st inclusive, the vessel met heavy weather during which there was heavy rolling of the vessel. The cattle were in pens on deck; a few were forward under or near the turtle hack, which were saved; the rest, were in the vicinity of Nos. 3 and 4 hatches forward and aft of the engine room in pens built in the wings on the port and starboard sides of the ship, all of which were lost.

The storm was heaviest on the afternoon and night of Saturday the 31st, the wind and seas coming first,, and heaviest, from the; northwest, but on Saturday hauling to the northward and to east northeast, with cross seas. Some slight damage was done to a few pens on the 30th; more were broken on Saturday the 31st; but. these were repaired, and the cattle put in place toward nightfall. About 5 o’clock on that day the after gangways were opened on each side, and about 10 or 32 (tattle that had. become maimed and helpless were sent overboard through those gangways. The chief loss was during that night and the following morning, when shortly after daylight, the captain gave orders to open the forward gangways also, and the whole deck was cleared of all the cattle, save the 39 under the turtle hack. The following is a translation of the account given in the ship’s log, the master and most of the crew being Spanish:

“(Sea tíme) October 30, 1891.
“On tbe fifth hour (5 F. M.) a heavy sea destroyed some of the cattle houses on the port side and opposite hatches No. 4 and No. 3. We immediately fixed up in the best manner that it was possible tbe houses and the oxen, the boards that were lying loose on the deck we threw overboard. Nightfall, the weather slightly clear towards the horizon with signs of heavy rain clouds, wind fresh from the northwest, seas very lively from the sann direction and from the west, coming on board with less force than during the afternoon, and in this way we passed the night. At daylight wind very fresh from the north, with seas from the same direction and from the northwest. On the twentieth hour we stopped the engine in order to arrange the houses that had been broken during the night opposite No. 4, aDd replaced the oxen that were outside of their houses. At nine o’clock they were all back into their places, .with the exception of one which remained on hatch No. 5, and which notwithstanding all our endeavors to get him to rise, it lias been impossible, he remaining on the same hatch No. 5. Subsequently and while the engine was still stopped, we gaye food and drink to all the oxen. On the 22d hour after all was arranged, we again started under full steam and continued to sail in the direction of onr course and without further mishaps we arrived at the middle of the day, and there being'no observation, we situated ourselves by dead reckoning in the latitude and longitude noted.
“31st. Commencing this day with very strong wind from the north northeasr with very lively seas from the same direction and from the northwest, which came on board from all over, flooding the houses and bridges always full of water, and governing our course as noted in the table. In the second hour weather very hard from the north northeast, the heavens and the horizon closed, and with rain áccompanied by very heavy seas with full crest, also from the northwest, which strike against the sides of the vessel, coming-on board, and making the vessel labor terribly. At this hour, some of the houses opposite No. 4 were destroyed; several of the oxen being loose, we stopped the engine and remained crosswise to wind and seas, seeing that the weather was becoming worse at every moment, and that the barometer continued to fall rapidly, (at this time, 29:55,) we determined to open gangway No. 4 in order that the oxen that were loose could go over, which was do-iic with much precaution to avoid personal mishaps. Once that it was opened, the oxen that were loose were carried over with the heavy rolling of the vessel; these were about 10, with the one mentioned on the previous day which was almost dead, which we threw overbora'd with ropes.
“Towards nightfall, weather quite a hurricane, the machinery stopped, and laying crosswise to the wind and waves, the vessel rolling and making ail suffer very much. At twelve hours, we set the mainsail with the object of steadying the vessel. The greater portion of the oxen are down and rnany aro carried from' port to starboard with the boards from the houses loose oil account of the heavy rolling of the vessel, and with a thick and heavy sea that comes on board on both sides. In this way and with the weather declared into a hurricane, we passed the balance of the night.
“At daylight, hurricane. All the deck is in a lamentable state; the cattle from port to starboard and from starboard to port, some with their legs broken, others dead, with so, much suffering, others with their legs tangled in the rail,. and some during the night, by the blows of tbe seas and the rolling of the ship, had gone on through the gangway to the water. On the nineteenth horn- (7 A. M. Sunday) we decided to open gangway No. 3, which was done with much precaution, as it was impossible to go on deck on account of the rollings; and the, seas that continually came in, and we immedial ply commenced Hie sad operation of throwing over all the cattle that were loose on the decks and in sorry plight, some with ropes, and others dragging them to the gangway, and from here, the seas that were hoarding us would carry them over. We have noticed the absence of some of the hatch wedges, very likely knocked out by the cattle during the night, and have immediately replaced them with new ones. The hurricane continues ■with ns great force and fury, the barometer 29.21. Notwithstanding our precautions to avoid personal mishaps, at 10:30 iu the morning more or less, a sea, carried out through gangway No. 3 one of the boys named Knehortiately; he was carried over. We noted his absence immediately, as he had not Ik come separated from (he side of the vessel, we threw him a life preserver, and with Hie aid of thin rope we were able to save him. On coming on deck, we noted that lie was bleeding from ear, no doubt having received a blow on that part. We put him to bed.
“On the 23d hour, the wind carried away the mainsail, leaving nothing but the bolt ropes of the same. At noontime the, stern was dear, there being no more cattle. There are only some remains of the houses, towards the bow and gangway of No. 3 is clear as also the hatchway. There remain on boar-only 39 oxen, and those up by the bow forward of No. 3 which are the ones that suffered loss from (he effects of the hurricane. At noontime there was no observation, the heavens being completely closed, and wo situated ourselves in latitude and longitude noted in its proper place. In this day, as in the previous one, it had been impossible to sound the well on act-ount of the storm. Operating the steam pumps every two hours, 'we noted that they sucked a great deal of water, no doubt by reason of the straining of the vessel.
“The losses that, we have suffered are the following: 12(5 head of cattle; the mainsail; a number of rail posts, and the ladder.
“November 1st. We commenced this day with the engine stopped and the rigging taut, with hurricane, the vessel crosswise to the wind and seas. Towards afternoon the wind slackened somewhat, in force, hut the high and crested seas continued the same, striking the vessel as in the previous day, and with much rolling. On the 4th hour we put up the staysail to steady the rolling of the ship. Night came on -with the wind very hard from the north, accompanied by terrible seas with heavy crests, which strike against the hull, making the vessel shiver.
“At eight o’clock the wind commenced to decrease and the seas gradually to go down. * * * ”

The testimony of the master and of the first officer and the boatswain accords in (he main with the statements of the log in regard to the handling of the cattle and the force of the storm.

There were six cattlemen provided hv the shippers for the care of the cattle. Several were inefficient. The testimony of Joyce, the foreman, and of Edwards, apparently an efficient man, is to the effect that the violence of the storm was very much exaggerated; that they had been many years making voyages in charge of cattle; (hat they liad been through, much heavier weather; and that the sacrifice of the cattle on the afternoon cf Saturday and the morning of Sunday was without reason or necessity. ■ In the great contradiction between these witnesses and the ship’s witnesses as to the force and effect of The storm, I have come to the conclusion that there is little candor cn either side. The fact that aside from some of the pens, and-except the cattle whicli the men forced overboard, nothing of any account belonging to the ship herself was carried away, is conclusive to my mind that the ship was in no peril, and that there was no such, actual hurricane, or any such extraordinary storm as the language of the log or the testimony of tlie officers would indicate. It is manifest that Joyce and Edwards, who were persons of much experience in transporting' cattle, were greatly incensed at the sacrifice of the cattle and the brutal treatment inflicted on them. They have not apparently any beneficial interest in this litigation; and if the storm was as violent as the claimants would make out, and the peril such as to demand the sacrifice of the cattle, Joyce and Edwards would not have felt the resentment they evidently display. If the peril was' real, they had experience enough to know it. At the same time this resentment has probably led them to belittle the forcé of the storm and to give perhaps an additional color to what was done. Joyce testifies:

“Answer. They took the cattle in their charge, of course, and they started to cutting the ropes-and getting them over the best way they could; we would not assist them in any way whatever; I would not allow any one to put a hand to them of my men. * * *
“64 Question. Ho-w many were put over the first day? A. That I could not tell; they had them scattered all over the ship — quite a lot.
“65 Q. Were there some put overboard from forward and some from aft? A. Both places — put them over aft first.
“66 Q. Will you state how they put them overboard? A. They shifted the rail as it is called — the gangway; then they tore up the pens facing the gangway so they would slip on the iron deck; they then would take pitchforks and everything else, and sticking thorn in them drive them up to this places and when the ship lurched over like they would shove them and the cattle would slip off; if they didn’t slip off, 4 or 5 sailors would put their backs to them and shove them over; once they started going they had to go.
“67 Q. Was this done on one side, or both sides? A. It could only be done on the one side — the starboard side.
“68 Q. Why could it not he done on the port side? A. Because that was the weather side.
“69 Q. Which was the weather side? A. The port side.
“70 Q. Bid the vessel have a list? A. She had a list when we put about — on account of the trysails being over.
“71 Q. State whether, or not, anything was done to get the cattle oyerhoard, except what you have stated? A. One bullock — a white bullock — in particular was very stubborn.
“72 Q. What was done with him? A. They put a rope on him and dragged him as far as the gangway, and then they used a maul on him — a big hammer.
“73 Q. What did they do with it? A. They hit him in the head and tiled to kill him, they co-uld not kill him, and they took ropes and got him over the best way they could; of course, when they started I didn’t watch everything; I had no reason to watch.
“74 Q. When they put the rope on him, how did they get him to the gangway? A. -With a switch and derrick; these ropes lead from the derrick to the deck; they attached that around his horns; dragged him up to the gangway and swung the gangway around; when they got to the gangway, they took the rope off. * * *
“113 Q. What was done, if anything,.by the crew with the stalls to enable them to get the cattle overboard? A. They knocked them down. * * *
“118 Q. Do you know whether, or not, the crew of the steamship took up the flooring put there for 1he cattle? A. Yes sir; they took up everything.
“119 Q. What was the object in taking up the flooring? A. To get the cattle overboard.
“120 Q. How would that help them to get the 'cattle overboard? A. Because there was cleats on the floor and they could get a foothold; when they got them up, they just had the smooth deck.
“121 Q. Did you, or not, see one of the crew of the steamship go overboard? A. A boy, yes sir.
“122 Q. Were you on dock at the time? A. Yes sir; standing at the engine room.
“123 Q. What was he doing? A. He was shoving a bullock over; it was his own fault; the bullock started to go and he kept shoving, and he slid over with him.
“124 Q. Will you state whether, or not, any of the bullocks that wero put overboard, were dead when they were put overboard? A. No sir; they were all as healthy as when shipped.
“125 Q. How many cattle were discharged at Liverpool? A. 33 bead.
“120 Q. What became of the other one — you said that there were 3S) left? A. Throwed him overboard.
“127 Q. For what reason? A. Because he was dead.
“128 Q. Had he been injured? A. He got down and got cramped up.
“120 Q. In what condition were the 28 delivered? A. Good condit'on; not a blemish on them.
“130 Q. Do you know anything of the entries in the log of the steamship? A. No sir; if I asked them that question, they would tell me to mind my own business.
“131 Q. Who did you ask? A. I say if I did; they never show us anything of that kind.
“132 Q. How did the weather at that time compare with other storms that you have encountered when in charge of cattle being shipped on steamers? A. I would not call it a storm: I call It kind of squally weather.
“133 Q. Have you ever pass ’ through storms much worse than that? A. Yes sir; 20 times worse.
“134 Q. How did your cattle come through on such occasions? A. Sometimes I lost a lot; sometimes they come through all right.
“135 Q. Have you, or not, at other times passed through such weather as that without losing any cattle? (Objected to.) A. Ought not to have lost a bullock this time; ought to land all of them at Birkenhead — no need to have lost a bullock. * * * ”

Edwards, wIlo had Leen on cattle voyages for many years, testifies in regard to Sunday morning as follows:

“Question. Tell me what you first knew or heard of their driving the cattle overhoard? Answer. Well, I see them all getting together and getting their mauls — That is, heavy hammers on board skip — and forks — they asked me for a fork, I didn’t know what they wanted it for.
“Q. Did yon ask what they wanted it for? A. To run Hie cattle over, they said.
“Q. This was in the morning? A. Yes; that was between half past six and seven o’clock that morning.
“Q. Well, go on and tell me what was' said? A. They started in the after * place, and as soon as they started I went in there and told the other men about it, and I stopped work right there; as soon as they finished the forward part I stopped. I did not touch none of the after part at all, beeae they were busy then tearing up the sheds and stalls and getting the gangway ready. As soon as they got the gangway ready they tried to shove some off. but they had to take the flooring up — the false flooring which the carpenters put in in New York. After they got that up and the sheds out of the way, every time she gave a lurch, four or five went over.
“Q. They found they could not drive them over when the flooring was down? A. No; there were cleats there on the flooring for the cattle’s footing ■ — on the false flooring; they attempted it hut had to take it up, and then on the smooth deck the cattle slipped and slid.
“Q. So that they would slip on the smooth deck and they could force them overboard? A. Yes sir.
“Q. Who was it told you that they were going to drive the cattle overboard? A. The sailors.
“Q. Did you have any conversation with the captain about it? A. No sir; didn't have none whatever, only he called me up before he started and said he would have to clear that hatch there.
“Q. Which hatch was that? A. That was- right after; it must have been No. 8 and No. 4 hatch.
“Q. Was that hatch covered by the stalls? A. Yes sir; it was covered with the flooring — tlie cattle was over it. * * *
“Q. Did you say anything to the captain or the first officer about their driv-, ing the cattle overboard? A. No sir; I did not say anything to them, but he called me up and told me he was going to get that hatch cleared off, that he was afraid the weather might get worse, and there would be danger to the ship, or something like that. * * *”

The statement of Edwards is confirmed by tbe master’s own account of Ms reason for dragging tbe cattle overboard. Tbe master testifies;

* “Question. Wbat did you do during the afternoon of the day to improve the situation? Answer. Before nightfall I saw that I had to go through a tremendous hurricane, according to the indications of the barometer. * * * I convinced myself that I had tremendous weather and that I was to have a hurricane that night.
“Q. And then' you opened the gangway? A. Towards nightfall I opened the gangway of No. 4 hatch.
“Q. On the starboard side? A. On the starboard side, and when it was opened some of the cattle went overboard. On the same night, or rather, this same afternoon, X opened the gangways on the x>ort and starboard side opposite the deck house because I supposed that in' the horrible hurricane that w'e would have during the night the waves would break the cattle out of their places on the port and starboard bows and carry them down to the alleyways where there was no resource for their safety. And as I thought, opening this during the night, without my seeing them, but as I had expected, the cattle washed down; the waves broke the houses and washed them down. I do not know how many went over by those gangways during the night, neither do I know how many went over by gangway No. 4, what I saw was that in the morning when daylight appeared I saw from here to here (indicating the places where the stalls are on the starboard side) — I sav there from the bridge looking over myself that many of the cattle had their legs sticking out the sides of the vessel through the rail, some one leg, others two legs, and others with all four. This must have happened without doubt during the night. And on that night as I saw the horrible hurricane, between ton and twelve o’clock — I don’t remember the exact hour — opposite each one of the four masts of the vessel I placecl oil bags in the water in order to calm down the waves.
“Q. Over which side of the vessel was this done? A. On the port side, .to windward.
“Q. Did you sleep that night? A. No sir.
“Q. Describe the situation of affairs the next morning? A. In the following morning, as I have said before, a great many of the cattle had their legs outside of the rail, the houses were broken — a few were not broken on the forward part of the ship; the cattle were all down with the exception of those towards the bow, and some were dead, others broke, others with their horns broken off, some were on their backs, making a heap of cattle and boards all mixed in one. When I saw this condition *bf things the first officer come to the bridge where I had been all night, and I asked him his advice as to what to do in this situation. He says to me ‘The weather is too strong, the sea becomes more crested, the heavens still more threatening.’
“Q." flow was the barometer? A. I then went to see the barometer, and during that time it was falling very rapidly. I expected that the hurricane would come with still much greater force.
“Q. Had waves been breaking over the vessel during this time? A. The waves' would break on the deck, over the bridge, over the houses that had already been broken, and there was water everywheres. And there we could see a calamity. The opinion of the first officer and my own opinion, after having looked at the weather and the barometer, was to determine to open gangway No. 3.
■'•Q. About «-but fimo in fhc morning of November 1st. was this? A. About 6 or 7 o’cloek — just about daylight.
•‘Q. And you then opened gangway No. 3? A. Gangway No. 3 was opened.
“Q. Had you been ai)le to have breakfast that mo-ming? A. No sir.
“Q. What was done after opening gangway No. 3? A. We breathed happy when we saw it open. * * *”

Notwithstanding this description of the situation during Saturday, it is clear from the master’s statement, and especially that of the first officer, confirming the statements of the cattlemen, that before the night of the 31st there had been but little damage to the cattle. The first officer says, in answer to the question,

“What damage if any, had been done to the cattle? A. At that time, the 31st, in the afternoon they were not in a very bad state; some of them liad already lain down.”

The master and the first officer intimate that none but dead animals, or those with broken limbs, were cast overboard. The log-imports no such restriction; while the testimony of the boatswain and the carpenter shows the contrary. It is plain that the account given by the master and first officer cannot he accepted without considerable abatement and modification. They intimate that the cattlemen were not on deck.during the storm; but the details testified to by the cattlemen prove the contrary. The boatswain says:

“On the 21st many dead we directed to have thrown overboard, and some ©f tlie live ones followed the dead of their own accord. * * * Owing to the movement of the vessel, they could not retain their footing, and when they fell, the seas would carry them out of the gangways. * * * They were more or less injured, because with the breakage of the houses they were struck by the pieces of the lumber, and many were going around fastened together with those boards.”

On Sunday morning he says that most of them were dead, and a great many were with broken legs, and some were alive from hatch No. 2 forward; that

“They iixed some ropes so as to hoist and pull over those that were dead and with legs broken, so as to pull them opposite to the gangway (No. 3.j They were washed overboard, and among the dead there were also some that were alive that would jump overboard. * * *”

He does not say that they could not retain their footing and jumped overboard, because the flooring and cleats which supported them had been tom up by the crew; Joyce and Edwards explain this.

The .carpenter testifies:

“Question. How was it with the cattle and the pens aft on the morning of November 1st? Answer. The houses aft were also all broken on the morning of the 1st.
“Q. How about the cattle? A. Some of them were going around loose, ’ oihers were fastened together with pieces of the boards, and generally knocked about the deck.”

The carpenter also testifies that the stalls which had been broken . at No. 4 hatch were repaired about 5 P. M. of Saturday the 31st; and the cattle put hack in their places; and that the stalls remained in good order until they were again broken some time after.

“Question. When did they break again? Answer. Those and a great many others were broken again during the night.”

The first officer, in answer to the question whether the cattle were lost by being thrown overboard could have been saved, even if the sea had moderated, says:

“Answer, I> don’t know'; they might have lived or they might not have lived. One of them that remained injured and wounded on board, died in two or three days, and the same might have happened with the others.
“Question. What is your judgment about it? Answer. My opinion is that after having suffered so much, I do not think they could have lived.”

The evidence shows that within a few hours after the cattle were driven overboard on Sunday morning, the wind, abated, and afterwards, the seas.

The log does not say that the seas carried away the false flooring, and the cleats thereon, by which the cattle were supported. I do not credit the officers’ testimony in that regard; both because Joyce and Edwards testify that it was purposely torn up, and because the moving about of the unhurt oxen on Sunday morning, even those hampered by being fastened together, shows that the cleats still remained.

During a considerable portion of the storm the steamer was hove to, i. e., as applied to a steamer, taking the heaviest seas upon her quarter — in this case upon her port quarter.

In the translation of the log and of the first officer’s testimony, this situation is described as “lying crosswise to the wind and sea.” The words in Spanish are “Atravesados al viento y mares.” Considerable controversy has arisen as to the meaning of this phrase. There is high authority that the phrase has been used at times as a nautical phrase meaning “lying to;” that is, with the wind and sea not abeam, but at a less angle. In ordinary use the word “atravesados” would mean at right angles, or abeam. On the whole testimony I am persuaded that in this case the expression was in fact used in that sense, which is the only sense which an experienced naval officer testifies it could have in the connection in which it appears.' This conclusion is confirmed by the fact that the boy who was swept off the gangway with the cattle, and who remained for some 15 minutes in the water, was pulled up the same gangway, showing that the vessel did not move much either forward or aft, as she must have done had she not at that time had the wind very nearly abeam. This agrees also with the ship’s heading E. S. E., as given by the master, while the wind was from A. to 2ST. hr. E. at that time. The seas accompanying that wind would come athwartships or crosswise’as stated in the log; while the seas coming from the former wind — from the northwest— would be six points aft. ■

Upon the whole testimony in this pitiful case, I am not disposed to pronounce any unfavorable judgment upon the handling of the ship by the master. His record as a master appears to have been good, and on any doubtful question of navigation, he is entitled to the benefit of his record. He had some, though not large, experience in tlie transportation of cattle; and the experts called by each party place so much stress upon the special circumstances of the situation,‘the quality of the ship, and the necessary determination of the master's own judgment at the time, that in the circumstances testified to, I do not find any conclusive proof adverse to tlie master’s judgment as to the navigation of the ship.

The evidence leaves not the least doubt in my mind, however, that the sacrifice of a considerable number of live cattle that were not maimed or substantially hurt, was made on the morning of Sunday, the 1st of November; not from any pressing necessity, hut solely from mere apprehension; and I am further persuaded that, there was no reasonable or apparent necessity for this sacrifice. It was morning. The night was past. No one testifies to any pressing peril to the ship. The log does not hint of it. No reason appears why such cattle as could go about, and were actually going about, should not have been cared for and preserved. There was plainly no effort made to separate the sound from the unsound. Even the master says in answer to the question — “Were these cattle standing up that went; overboard? Answer. They were down. Some may have been up. I don’t know.”

His object plainly was to clear the deck of all the cattle from No. 3 aft, with no attempt to discriminate, or to save any. His state of mind is shown by his concluding words. “We breathed happy when we saw it open.” (No. 3 hatch.)

If the readiness of the master to make this, indiscriminate sacrifice was hastened by the provisions of the hill of lading, which prowded that, the cattle “were to be at owners’ risk; steamer not to be held accountable for accident to or mortality of the animals from whatever cause arising * * * or negligence of the master or oilier servants of the shipowner,” — this sacrifice and the consequent pecuniary loss, furnish hut another illustration of the impolicy of all such stipulations. They are invalid hv the law of this country; and the further stipulation which would substitute in such matters the British law for our own, is but another form of the previous stipulation against liability for negligence, and equally invalid. The Brantford City, 29 Fed. Rep. 373, 396; The Iowa, 50 Fed. Rep. 561; Liverpool & G. W. Steam. Co. v. Phenix Ins. Co., 129 U. S. 397, 461, 9 Sup. Ct. Rep. 469.

The libelants are entitled to a decree for damages for such of the oxen voluntarily sacrificed as were either in a sound condition, or not fatally wounded or maimed at the time they were cast overboard, or negligently or designedly suffered to go overboard through the open gangways on the morning of November 1st, and on the evening and night previous; this must he determined, if not agreed upon, on a reference; with costs.  