Where a policy of marine insurance excepts losses and perils
occasioned by want of ordinary care and skill in navigation, or by
want of seaworthiness, and a statute of the country to which the
insured vessel belongs requires all vessels to go at a moderate
speed in a fog, and the insured vessel, having a defective compass,
is stranded while going at full speed in a fog, and a loss ensues,
the burden of proof is on the insured to show that neither the
speed at which the vessel was running nor the defect in the compass
could have caused, or contributed to cause, the stranding.
The exception in a marine policy of losses occasioned by
unseaworthiness is, in effect, a warranty that a loss shall not be
so occasioned, and it is therefore immaterial whether a defect in
the compass of the vessel which amounts to unseaworthiness was or
was not known before the loss.
When in a policy of marine insurance it is provided that acts of
the insurers or their agents in recovering, saving, and preserving
the property insured, in case of disaster, shall not be considered
as an acceptance of an abandonment, such acts in sending a wrecking
party on notice of a stranding of a vessel, in taking possession of
it and in repairing it, if done in ignorance of facts which
vitiated the policy, do not amount to acceptance of abandonment;
but it is a question for the jury to determine whether such acts,
taken in connection with all the facts and with the provisions in
the policy, amounted to such an acceptance.
Although a protest by a master of a vessel after loss is
ordinarily not admissible in evidence during his lifetime, yet in
this case it was rightfully admitted, because it was made part of
the proof of the loss.
A stranded insured vessel, having been recovered and repaired,
was libeled and sold for the repairs, neither the owners nor the
insurers being willing to pay for them. In an action between the
owners and the insurer to recover the insurance,
held that
the record in that suit was not admissible against the insurer to
establish acceptance of an abandonment.
This is an action upon a policy of insurance, bearing date May
1, 1883, insuring the steamer
Spartan, a Canadian vessel
of 678 tons burden, from April 1 to November 30, 1883. The
plaintiff in error, a Canadian corporation,
Page 136 U. S. 409
chartered the
Spartan in the spring of 1883 to the Owen
Sound Steamship Company, also a Canadian corporation or
association, and she was being run by that company on the route
between Owen Sound on Georgian Bay, Ontario, to Fort William,
Ontario, on the north shore of Lake Superior, when the loss
occurred. The perils insured against are thus stated in the
policy:
"Touching the adventures and perils which the said insurance
company is content to bear and take upon itself by this policy,
they are of the lakes, rivers, canals, fires, jettisons, that shall
come to the damage of the said vessel, or any part thereof,
excepting all perils, losses, misfortunes, or expenses consequent
upon and arising from or caused by the following or other legally
excluded causes,
viz., damage that may be done by the
vessel hereby insured to any other vessel or property; incompetency
of the master or insufficiency of the crew, or want of ordinary
care and skill in navigating said vessel and in loading, stowing,
and securing the cargo of said vessel; rottenness, inherent
defects, overloading, and all other unseaworthiness; theft,
barratry, or robbery."
The steamer was valued at $50,000, and was insured in all to the
amount of $40,000. Her crew consisted of the master, two mates, two
engineers, two wheelsmen, four firemen, a full complement in the
cabin, and four or five deck hands. She had made three trips from
the opening of the season of navigation, and on the 18th of June,
1883, left Fort William, on her return trip to Owen Sound, and
stopped en route at Silver Island, on the north shore of Lake
Superior, leaving that port at 12:45 P.M., and was stranded on the
southwest point of Caribou Island, in Lake Superior at about 2
o'clock in the morning of June 19th. The evidence tended to show
that on this occasion, for the first time, she laid her course from
Silver Island for Passage Island; thence direct for White Fish
Point, on the south shore of Lake Superior. Between Silver Island
and Passage Island a thick fog arose, which continued until after
the stranding. She passed Passage Island at 2:30 P.M.; thence the
chart course laid S.E. by E. 1/2 E. to White Fish Point, passing
about eight miles to the southward of Caribou
Page 136 U. S. 410
Island, 132 miles from Passage Island. About 8 o'clock in the
evening of June 18, the master retired to his stateroom, leaving
the second mate on watch, and gave him the following written
instructions:
"Monday Evening."
"Mr. Harbottle: if it continues thick at 10 o'clock P.M., keep
her S.E. by E. until 3 A.M.; then keep her S.E. by E. 1/2 E. small.
If it clears, continue on your course S.E. by E. 1/4 E."
The fog continued dense during Harbottle's watch, and he made
the course prescribed until he came off watch, about 1 o'clock A.M.
on the 19th, running the steamer at full speed, which was twelve or
twelve and a half miles per hour, the master testifying that his
instructions "were based on the steamer's running on time." At
twenty minutes past one in the morning, Wagner, the first mate,
relieved Harbottle, and took charge, navigating the vessel under
the same orders, the fog being so dense he says, "that you could
not see anything." There was no lookout forward; no one else on
deck during either watch beside the mate and the wheelsman; no
soundings were taken, and the steamer was kept running at her full
rate of speed, carrying her regular steam of 45 pounds, her maximum
pressure being 47 pounds. She struck on the southwest point of
Caribou Island, in Canadian waters, though she should have passed
seventeen miles to the southward of that Island. Upon the ordinary
course from Passage Island to White Fish Point, she would have
passed about eight miles south, but the testimony tended to show
that she took a course somewhat southerly of the most direct course
between the two points, which should have carried her some
seventeen miles south.
Notice of the disaster and request for assistance was sent by
the master to the insurer's agents, who received it June 22 and
sent to the aid of the
Spartan a tug and wrecking
expedition, under command of Captain Swain, which left Detroit June
23 and arrived at Caribou Island, June 25. June 26, plaintiff sent
a telegram to the insurance agent at Toronto, who was the broker
who negotiated this insurance, through defendants'
Page 136 U. S. 411
agents at Buffalo, as follows: "Spartan ashore on Caribou
Island, and this company beg to inform you that they abandon the
boat, and claim a total loss. Please inform the underwriters."
The steamer was brought to Detroit, as alleged on the one side,
by the order of her master, and there docked and repaired under his
instructions, which is denied on the other. That the cost of
rescuing the steamer and towing her to Detroit was $7,455.13, which
was paid by the underwriters. It is in dispute as to who ordered
the repairs, or claimed or exercised control over them or the
steamer, or directed where she should be brought, but it is not
shown that either plaintiff or defendant did. The repairs were made
by the Detroit Dry-Dock Company, and completed in September at a
cost of from $23,000 to $24,000. In November, plaintiff served on
the insurers proofs of loss, verified November 3, 1883, in which it
is stated:
"That the said vessel, in the prosecution of a voyage from Fort
William, on the north shore of Lake Superior, in the province of
Ontario, to Owen Sound, on Georgian Bay, in said Province of
Ontario at about 2 o'clock on the morning of the 19th of June last,
in a fog, ran ashore on the southwest shore of Caribou Island, and
became a wreck and total loss, and was duly abandoned by her owners
to her insurers, as will appear by certified copy of the protest of
her master and mariners, heretofore served upon you, in consequence
of which the said Richelieu and Ontario Navigation Company suffered
damage, sustained loss or damage, within the perils insured against
under the said policy No. 1,965, to the amount of ten thousand
dollars, as will further appear by particular statement
herewith."
The agents of the insurers knew nothing of the facts attending
the stranding, except what the protest showed, until after March,
1884. Up to that time, plaintiff and the underwriters had been
negotiating for a settlement of the loss, but could not agree upon
the liability for duties upon the repairs, but after discovery of
the facts, the defendant and the other insurers refused to pay.
Upon the trial, the jury found a verdict for the defendant, on
which judgment was entered.
Page 136 U. S. 412
The opinion of Judge Brown, the district judge, on the motion
for a new trial will be found in 26 F. 596.
The cause was brought to this Court by writ of error, and errors
were assigned as follows: that the circuit court erred
1. In ruling that no authority was shown on the part of Captain
Gibson to bind the defendant in respect to the repairs made upon
the steamer
Spartan.
2. In striking out all the testimony respecting the acts and
statements of Gibson.
3. In excluding this question put by plaintiff's counsel to the
witness Patterson: "Question. What is the custom of Canadian
vessels about carrying a lookout forward?"
In refusing to instruct the jury according to the requests made
by plaintiff's counsel, as follows:
4.
First.
"If the jury find that the
Spartan, while navigating
Lake Superior on June 19, 1883, and while a dense fog prevailed,
was stranded on Caribou Island, and that the insurers were promptly
notified of the disaster, and that proper proofs of loss were
furnished to the insurers, then the plaintiff has made a case which
prima facie entitles it to a verdict in this case."
5.
Second.
"The stranding of the
Spartan on Caribou Island while a
dense fog was prevailing was an accident which is
prima
facie covered by the policy, and for which the insurers are
prima facie liable."
6.
Third.
"If the jury find that the fog contributed proximately to the
stranding of the
Spartan, then the insurers are liable for
the loss caused by such stranding."
7.
Fourth.
"There is no evidence in the case which even tends to prove the
unseaworthiness of the
Spartan except in regard to her
compass, and if the jury find that the compass had not varied more
than vessels' compasses ordinarily do, that the steamer had been
navigated by the same compass without trouble from the time she
left La Chene, on the St. Lawrence River, up to the time of the
disaster, and that the officers of the steamer at the time she
started upon the voyage on which the stranding took place believed
the compass to be reliable, and had reason for so believing, then
the insurers
Page 136 U. S. 413
would not be relieved from liability on account of any supposed
defect in the compass."
8.
Fifth.
"If the jury find that the insurers received the notice of
abandonment which has been offered in evidence, and that without
notice to the owners of the steamer they sent Captain Swain with a
wrecking expedition to her rescue, and that Captain Swain brought
her to Detroit for repairs, and was paid for so doing by the
insurers; that the steamer was subsequently surveyed for repairs by
the insurers, and repaired, and that the owners never interfered
with the making of the repairs, then the jury may consider these
facts as evidence of an acceptance of the abandonment."
9.
Sixth.
"If the jury find that the insurers, upon receiving notice of
the abandonment from the owners, sent a rescuing expedition for the
purpose of rescuing the
Spartan and taking her to a place
of repair, and that the
Spartan was gotten off by the
wreckers and brought to Detroit for repairs and was there repaired
without any notice whatever to the plaintiff, and that the
plaintiff never interfered with or exercised any control over or
made any claim to said steamer after their abandonment, then the
jury may consider these facts as evidence tending to prove an
acceptance of the abandonment on the part of the insurers."
10.
Seventh.
"If the jury find that the insurers sent the wrecking expedition
to the
Spartan with the intention of rescuing and
repairing her without consulting the plaintiff, then it was the
duty of the insurers to repair her within a reasonable time, and
tender her back to the owners free from all liens for such repairs.
Their failure to do so is evidence of an acceptance of abandonment,
and their liability to pay as for a total loss."
11.
Eighth.
"If the jury find that the insurers brought the
Spartan
to Detroit with the intention of repairing her, and that she was
subsequently repaired without interference on the part of the
plaintiff; that the insurers failed to pay for said repairs, but
allowed the steamer to be libeled and sold by the court of
admiralty to satisfy the lien for such repairs without notice to
the plaintiff, then this would amount to an acceptance of
abandonment. "
Page 136 U. S. 414
12.
Ninth.
"If the jury find that there was an actual or constructive
acceptance of the abandonment, then the plaintiff is entitled
absolutely to recover as for a total loss."
And in instructing the jury as follows:
13.
"The law of Canada provides that all vessels shall run in a fog
at a moderate rate of speed, and I do not undertake to direct you
one way or the other in regard to this fact -- that is, the rate of
speed -- but merely to say in general terms that if you find that
the loss was occasioned by the excessive speed of the vessel, or by
her want of a lookout, or by the defects of the compass, the
defendant is not liable."
14.
"With regard to the defective compass, the master and crew state
in their protest that they attribute the loss to a defective
compass, and while that statement is not binding upon the
plaintiff, and while the plaintiff is not estopped, as we say, or
prevented, from showing that the loss is attributable to other
causes, it undoubtedly is entitled to considerable weight."
15.
"In case you shall find, as I have said before, that this loss
was occasioned by a defective compass, the defendant is entitled to
your verdict. On the other hand, if you shall find that the loss
occurred through peril of the sea, and from no want of skill in
navigation, and no want of competency in the master or
insufficiency of the crew, and from no fault on the part of the
vessel, then your verdict should be for the plaintiff."
16.
"I charge you, as requested by the defendant, that under the
policy of insurance in this case, the expense of bringing her to
Detroit must be shown by the plaintiff to have been occasioned by
the risk against which the defendant had insured the steamer, and
if the stranding of said steamer, and the expense incurred in
effecting her relief, resulted from any incompetency of the master
or insufficiency of the crew, or want of ordinary care and skill in
navigating said vessel, or from any unseaworthiness of said vessel,
then the plaintiff cannot recover."
17.
"I charge you, as requested by the defendant in his seventh
request, that under the evidence in this case, the
Page 136 U. S. 415
burden of proof is upon the plaintiff to show that the stranding
of said steamer could not have been guarded against or prevented by
the ordinary exertions of human skill and prudence."
18.
"As the
Spartan was violating the statute laws of
Canada in running at full speed in a dense fog, the plaintiff must
show affirmatively that neither the speed of the steamer nor the
defects of the compass could have caused or have contributed to
cause the stranding of the steamer. The burden of proving a loss of
this kind is upon the plaintiff. There is no presumption that the
loss was occasioned by the peril insured against by the
defendant."
19.
"If there were any defects in the compass, known or unknown,
rendering it unsafe or unsuitable for use in Lake Superior, and the
stranding of the vessel was caused by, consequent upon, or arose
from such defect in the compass, the vessel was not seaworthy for
Lake Superior navigation, whatever her fitness for navigation
elsewhere, and the plaintiff cannot recover. "
Page 136 U. S. 421
MR. CHIEF JUSTICE FULLER, after stating the facts as above,
delivered the opinion of the Court.
In
Liverpool Steam Co. v. Phenix Insurance Co.,
129 U. S. 397,
129 U. S. 438,
it is said:
"Collision or stranding is doubtless a peril of the seas, and a
policy of insurance against perils of the seas covers a loss by
stranding or collision, although arising from the negligence of the
master or crew, because the insurer assumes to indemnify the
assured against losses from particular perils, and the assured does
not warrant that his servants shall use due care to avoid
them."
But in the case at bar there
Page 136 U. S. 422
is an express exception of all perils and losses occasioned by
the want of ordinary care and skill in navigation and of
seaworthiness. The
Spartan was a Canadian vessel, and was
navigating Canadian waters, between two Canadian ports, and was
bound to comply with the laws of Canada. The Canadian statute put
in evidence (Vol. I, Stats.Canada, 1880, p. 236) is entitled "An
act to make better provisions respecting the navigation of Canadian
waters," and prescribes certain rules, among them that every ship,
whether a sailing ship or steam ship, shall go at a moderate speed
in a fog, mist, or falling snow, and shall not be exonerated by
anything in the rules from the consequences of any neglect to keep
a proper lookout, or of the neglect of any ordinary precaution, or
precaution required by the special circumstances of the case. These
statutory rules correspond with those revised by an order of
council in England in August, 1879 (
see 4 P.D. 241), and
prescribed by Congress, Rev.Stat. sec. 4233; Act March 3, 1885, 23
Stat. 438, and recognized as international rules.
The
Belgenland, 114 U. S. 355,
114 U. S. 370;
The Scotia, 14
Wall. 170. Section seven of the Canadian statute provides that
"In case any damage to person or property arises from the
nonobservance by any vessel or raft of any of the rules prescribed
by this act, such damage shall be deemed to have been occasioned by
the willful default of the person in charge of such raft or of the
deck of such vessel at the time, unless the contrary be proved or
it be shown to the satisfaction of the court that the circumstances
of the case rendered a departure from the said rules necessary, and
the owner of the vessel or raft, in all civil proceedings, and the
master or person in charge as aforesaid, or the owner, if it
appears that he was in fault, in all proceedings, civil or
criminal, shall be subject to the legal consequences of such
default."
In
The
Pennsylvania, 19 Wall. 125, it was held that where
a vessel has committed a positive breach of statute, she must show
not only that probably her fault did not contribute to the disaster
but that it could not have done so. And this was but the statement
of the settled rule in collision cases.
Page 136 U. S. 423
In this case, in view of the seventh section of the Canadian
statute and the fact that perils occasioned by the want of ordinary
care and skill or of seaworthiness were excepted by the policy, the
same rule is applicable; hence, the burden was on the plaintiff to
show that neither the speed of the steamer nor the defect of the
compass could have caused or contributed to cause the stranding. If
it appeared that the misconduct or unseaworthiness was
causa
sine qua non, it was an excepted peril, and that, as stated by
Judge Brown,
"ought to suffice for the exoneration of the underwriter in a
case where a steamer, equipped with a compass known to be
defective, is driven in a dense fog with unabated speed and in
direct violation of a local statute upon an island lying but eight
miles off her usual track."
26 F. 606. We think there was no error in giving the eleventh
instruction asked by the defendant and forming the subject of the
eighteenth assignment of error. And this disposes also of the
sixteenth and seventeenth errors assigned, as the burden was upon
the plaintiff to show that the stranding, and its consequent
losses, misfortunes, and expenses, were caused by perils insured
against, and, as to the perils consequent upon and arising from or
caused by the want of ordinary care and skill in navigating the
vessel, plaintiff was its own insurer.
And the same result must attend the fourth, fifth, and sixth
errors assigned, which question the refusal of the court to
instruct the jury, as requested in the first, second, and third of
the plaintiff's instructions, that the stranding of the
Spartan, while a dense fog was prevailing, was an accident
which was
prima facie covered by the policy, and for which
the insurers were
prima facie liable, and that if the fog
contributed proximately to the stranding, the insurers would be
liable.
The jury were entitled to draw their conclusion not from a part,
but from the whole of the facts in the case, and the difficulty in
these instructions is that they are based upon a partial view of
the testimony. It was necessary to the plaintiff's case that it
should appear from the whole proof that the loss was not occasioned
by the want of ordinary care by the master, or on account of
unseaworthiness, and was not within
Page 136 U. S. 424
exceptions contained in the policy, against which plaintiff was
not insured.
Union Insurance Company v. Smith,
124 U. S. 405. The
jury were the judges of all the facts proved, and the court charged
that if they found that the vessel
"was carried ashore by the current, or by any mysterious cause
which you are unable to explain, then the loss will be within the
policy, and the plaintiff would be entitled to recover,"
and again,
"if you find that this vessel was stranded by reason of want of
ordinary care and skill in her navigation, or by reason of a
defective compass, the plaintiff is not entitled to recover; on the
other hand, if you find that she was stranded by circumstances, by
reason of the current, or by perils of the sea -- any other peril
of the sea -- then the plaintiff would be entitled to your
verdict,"
and also:
"Stranding is one of the perils insured against in the policy,
and if the jury find that the stranding was the proximate result of
the fog or currents of the lake prevailing, then the owners of the
steamer have made a case which entitles them to your verdict in
this case."
It appears to us that this branch of the case was left to the
jury in a manner in respect to which the plaintiff has no ground of
complaint. Certainly the state of facts disclosed by the record
precludes the claim that instructions more favorable to the
plaintiff could reasonably have been given, and this is illustrated
by cases cited.
Bazin v. The Steamship Company, 3 Wall. Jr. 229, 238,
was a suit for loss of merchandise under a bill of lading which
absolved the carrier from "accidents from machinery, boilers,
steam, or any other accidents of the seas, rivers, and steam
navigation, of whatever nature or kind soever." The steamer was
wrecked on Cape Race in a snow storm under the following
circumstances:
"She struck the point of Cape Race. Up to that time, she
continued perfectly seaworthy. If she had not struck at the average
rate of our passage, we would have been in Philadelphia in five
days more. The steamer was wrecked. We backed off the point of Cape
Race, and run her on shore to save the lives of the passengers and
to keep her from sinking. There was no tempest; she struck in a
dense fog, and the sinking of the vessel, and the damage
Page 136 U. S. 425
done, resulted from her striking the cape."
"Here, then," said Mr. Justice Grier,
"we have no other reason given by the captain, nor any testimony
whatever, as to how or why this great mistake of running against a
cape occurred. The answer and the witness
both seem to
assume that running against a cape or a continent is one of the
usual accidents and unavoidable dangers of the sea. That cannot be
termed an '
accident of the sea' within the exceptions of
the bill of lading, which proper foresight and skill in the
commanding officer might have avoided. If the compass on the new
iron vessel was not sufficiently protected to traverse correctly,
the vessel was as little seaworthy as if she had no compass, and
this should have been carefully ascertained before she started on
her voyage. If there was no fault in the compass, then it is very
evident that the officer, who is thirty or forty miles wrong in his
calculation, and driving through a thick fog with a full head of
steam, and first discovers his true position by running on an
Island, a cape, or a continent, has neither the skill nor the
prudence to be entrusted with such a command, and for want of such
an officer, the vessel is not seaworthy. . . . That a steamboat has
been either ignorantly, carelessly, or recklessly dashed against a
cape in a thick fog cannot be received as a plea to discharge the
carrier."
In
The Kestrel, 6 P.D. 182, the master was suspended by
the wreck commissioner, with the concurrence of two captains
sitting as assessors, because of the stranding of the steamship
Kestrel by reason of negligent navigation, and this
decision was affirmed by the Court of Appeals, Mr. Justice Hannen
and Sir Robert Phillimore, assisted on the hearing by two of the
elder brethren of the Trinity House.
The wreck commissioner, among other reasons for his report,
said:
"It appears to us that the master is in this dilemma: either the
weather was so foggy that it was not possible to see the island
until they were within a ship's length of it, and in that case he
would not have been justified in going at full speed, which we are
told was ten knots an hour, or it was not very foggy, and in that
case it is difficult to account for the island's not having been
seen until they were
Page 136 U. S. 426
within a ship's length of it, unless, indeed, there was a very
bad lookout being kept on board. In either case, the master would
seem to have been guilty of a neglect of the ordinary precautions
required from seamen for the safe navigation of their vessels."
The Court of Appeals held that the master was guilty of a
wrongful act in running the vessel at such a rate of speed as he
did in the state of the weather which existed, and also in that he
continued to steer the course he did in a fog. The exceptions in
this policy protect the insurer against the excepted perils, as a
shipper is protected under a bill of lading from loss to which the
negligence of the carrier has contributed. And as already remarked,
if the peril was caused by negligence or unseaworthiness
notwithstanding it was the fog which prevented the mate from seeing
the Island, the predominating and efficient cause was the
negligence or unseaworthiness, and must be regarded as the
proximate cause under the circumstances.
Waters v.
Louisville Ins. Co., 11 Pet. 213;
Insurance
Co. v. Transportation Co., 12 Wall. 194,
79 U. S.
199.
The unseaworthiness especially relied on was the alleged defect
of the compass.
The plaintiff in error complains of the refusal to give the
fourth instruction asked by his counsel, as follows:
"There is no evidence in the case which even tends to prove the
unseaworthiness of the
Spartan, except in regard to her
compass, and if the jury find that the compass did not vary more
than vessels' compasses ordinarily do, that the steamer had been
navigated by the same compass without trouble from the time that
she left La Chene, on the St. Lawrence river, up to the time of the
disaster, and that the officers of the steamer at the time she
started upon the voyage on which the stranding took place believed
the compass to be reliable, and had reason for so believing, then
the insurers would not be relieved from liability on account of any
supposed defect in the compass."
Exceptions were also taken to the parts of the charge italicized
in the following:
Page 136 U. S. 427
"Upon the question of speed, I will have a word to say, although
it is covered, so far as the law of the case is concerned, by my
general charge, that if you find the loss occurred by her being
navigated at an excessive speed, there can be no recovery; still it
is for you to judge whether, under all the circumstances of the
case, she was navigating at too great a speed.
The law of
Canada provides 'that all vessels shall run in a fog at a moderate
rate of speed.' Now it strikes me -- but the question is one
for your determination -- that a vessel is not under an obligation
while navigating the open lake to slacken her speed because of a
fog unless there is some reason to apprehend collision with another
vessel, or unless the vessel is so near the shore, or known to be
so near the shore, that she might run upon it unless she was
navigated at a less rate of speed, and if this compass had been a
proper compass, and there was no reason to think it was otherwise,
I should feel loth myself to charge the vessel with fault on
account of excessive speed. On the other hand, if this compass were
known to the captain, or he had good reason to believe it was
defective, then it would strike me that in passing in the
neighborhood of Caribou Island he should have directed the speed of
the steamer to be slowed. But, as I said before, gentlemen, that is
a question for your consideration,
and I do not undertake to
direct you one way or the other in regard to this fact, but merely
to say in general terms that if you find that the loss was
occasioned by the excessive speed of the vessel, or by her want of
a lookout, or by the defects of the compass, the defendant is not
liable. With regard to the defective compass, the master and crew
state in their protest that they attribute the loss to a defective
compass, and while that statement is not binding upon the plaintiff
here, and while the plaintiff is not estopped, as we say, or
prevented, from showing that the loss is attributable to other
causes, it undoubtedly is entitled to considerable weight. On
the other hand, it is shown that the vessel had navigated form Owen
Sound up to Sault St. Marie, and from the Sault up to Port Arthur,
with this compass, and that no unusual deviation had been detected,
except that the captain thought the compass was a little slow, as
he said. Now then, gentlemen,
Page 136 U. S. 428
in case you shall find, as I have said before, that this
loss was occasioned by a defective compass, the defendant is
entitled to your verdict. On the other hand, if you shall find that
the loss occurred through peril of the sea, and from no want of
skill in navigation, and no want of competency in the master or
sufficiency of the crew, and from no fault on the part of the
vessel, then your verdict should be for the plaintiff."
The court also instructed the jury:
"The stranding of said steamer at a point 17 miles out of the
course on which said steamer was running in navigating the distance
of about 130 miles is
prima facie evidence that the
compass was defective, and throws the burden of proving that the
compass was correct upon the plaintiff."
"I charge you, as requested by the plaintiff in his eighth
request, that the jury are entitled to consider the fact that the
Spartan had been successfully navigated by this compass
during the season up to the time of her stranding, and that on her
final trip she had made a good course from Fort William to Silver
Island and from Silver Island to Passage Island, and that she was
upon her usual course, when she passed the
Quebec, as
evidence tending to show that the officers had reason for believing
that the compass was a proper one, and to rebut the charge that
they were negligent in using that compass."
"The steamer is presumed to have been seaworthy, and that her
officers were competent to navigate and manage her, and the
insurers are not entitled to a verdict on account of
unseaworthiness unless they prove by a preponderance of evidence
that she was unseaworthy."
"But that is to be construed in connection with the charge I
gave you that the fact that she ran ashore, on a still night, upon
Caribou Island, 17 miles out of her course, raises the presumption
of unseaworthiness, which it devolves upon plaintiff to
explain."
The court charged that there was but one defect in connection
with the defense of unseaworthiness to which attention need be
called, and that was "the want of a proper compass," and, among
other things, said
"It was the duty of the plaintiff to keep the
Spartan
in a seaworthy condition for the safe
Page 136 U. S. 429
navigation of the waters in which she might be run under the
policy. In order to be seaworthy, the steamer must have been
supplied with a good and reliable compass or compasses, which must
have been kept in proper repair and condition for the safe
navigation of all waters described in the policy.
If there were
any defects in the compass, known or unknown, rendering it unsafe
or unsuitable for use in Lake Superior, and the stranding of the
vessel was caused by, consequent upon, or arose from such defects
in the compass, the vessel was not seaworthy for Lake Superior
navigation, whatever her fitness for navigation elsewhere, and the
plaintiff cannot recover."
To the italicized portion of this the plaintiff excepted.
The declaration before the notary by the captain, two mates, and
wheelsman states that "from the course taken the steamer should
have passed seventeen miles to the southward of Caribou Island."
The master had the words "fogs and defective compass" inserted
among the causes protested against. There was no lookout, and both
that and the rate of speed were contrary to the Canadian statute.
The exception of losses occasioned by unseaworthiness was, in
effect, a warranty that a loss should not be so occasioned, and
whether the fact of unseaworthiness were know or unknown would be
immaterial. This is so stated by the learned district judge in his
opinion on the motion for a new trial, and the decisions referred
to fully sustain the position.
Work v. Leathers,
97 U. S. 379;
The Glenfruin, 10 P.D. 103;
Union Insurance Company v.
Smith, 124 U. S. 405. But
the testimony of the captain and his mates leave but little if any
room for doubt that the compass was known to be defective on former
trips. The captain testified that he thought the loss was
occasioned by a defective compass, but qualified that as merely
given as a supposition; that the compass was defective more or
less; "it was running in opposite courses;" that when the protest
was signed, he had the words "fogs and defective compass" inserted;
that the loss was occasioned by a defective compass or fogs, or the
current; that he had experienced on previous trips no more
variation than was general on iron vessels; that "another compass
on that vessel
Page 136 U. S. 430
might be just the same and different on wooden vessels;" that
the stranding must be attributed to the compass or some other cause
aboard the vessel; that all compasses on Lake Superior vary more or
less at different points; that he could not tell the extent of the
variation; that he discovered a little difference from some other
vessels in the compass on former trips; that he found the compass
out in the other channel; that every vessel he was on varied there
in the same place. The first mate testified that the captain spoke
to him about the defect, and said the compass was "a little out; it
was not like the compass he had on the
Smith;" that the
captain laid the stranding solely to the compass; and, further,
that "the compasses all vary up there; those that have not been
adjusted, they vary more at certain points than others; a compass
that is adjusted should not vary at all;" that he did know how much
the variation of the compass was; that he steered the small boat by
the spirit compass after the stranding, on a S.E. by E. course, and
brought up forty miles from the point for which he steered; "the
course actually run must have been 1/2 south, or something like
that, judging from where she fetched up." The second mate, when
asked what took them on Caribou Island, answered: "It must have
been the fault of the compass." Patterson, the charterer's manager,
said that there was more attraction on an iron than on a wooden
vessel; that to meet and obviate this, it is usual to adjust
compasses; that this compass had never been adjusted; that the
Spartan had been fitted out by the plaintiff; that the
compass was a little slow in its movements; that he did not know
that compasses are specially adjusted to run on Lake Superior. The
evidence, taken together, did not fairly leave the inquiry open as
to whether the compass did vary more than vessels' compasses
ordinarily did, or whether the officers at the time the
Spartan started on the voyage, believed the compasses to
be reliable, or had reason for such belief, any further than was
covered by what the court said on that subject. And the slight
inaccuracy in the reference to the protest is of no moment.
Page 136 U. S. 431
The eighth, ninth, tenth, eleventh, and twelfth assignments of
error relate to the question of abandonment. It is not contended
that there was any evidence establishing an actual acceptance of
abandonment, but it is argued that the evidence tended to show a
constructive acceptance. If the loss was the result of a peril not
insured against, there was no right to abandon; but it is insisted
that if the abandonment is accepted, it is too late to recede, and
that an acceptance in ignorance that the loss was occasioned by
perils not insured against would be equally binding. And this was
so held by the Supreme Court of Michigan,
Richelieu &
Ontario Navigation Co. v. Thames & Mersey Insurance Co.,
40 N.W. 758, which was an action by the present plaintiff against
another of the insurers of the
Spartan. But the testimony
in that case in regard to the repairs was not the same as in the
case in hand, as is conceded by plaintiff's counsel, and it is upon
that very point of the repairs that the plaintiff chiefly relies to
make out the alleged constructive acceptance.
The "sue and labor clause" of the policy was as follows:
"It is agreed that the acts of the insured or the insurers or
their agents in recovering, saving, and preserving the property
insured in case of disaster shall not be considered a waiver or an
acceptance of an abandonment, nor as affirming or denying any
liability under this policy, but such acts shall be considered as
done for the benefit of all concerned, and without prejudice to the
rights of either party."
The bill of exceptions shows that the officers and crew of the
steamer were unable to get her off, and notice was sent to the
owners and charterer, and notice of the loss was also communicated
to the underwriters, with a request for assistance, and the
underwriters sent a wrecking expedition under the command of
Captain Swain to rescue the steamer. The request for assistance,
was received June 22, and the wrecking expedition left Detroit June
23 and reached the
Spartan June 25. The telegraphic notice
of abandonment was sent to the underwriters on June 26. The policy
provided that in case of loss or misfortune it should be lawful and
necessary for the assured
"to make all reasonable exertions in and about the defense,
safeguard, and
Page 136 U. S. 432
recovery of the said vessel, or any part thereof, without
prejudice to this insurance,"
and in case of neglect or refusal on the part of the insured to
adopt such measures, "then the said insurers may and are hereby
authorized to interpose and recover the said vessel." Captain
Swain, who had command of the wrecking expedition, testified that
he had no orders where to take the steamer when she was got off,
and he and the first mate agreed in testimony that she was towed to
Detroit under the orders of her master. The captain denied that he
gave such orders. The survey was held by Gibson, acting for the
underwriters, and Kirby for the charterer. The superintendent of
the dry-dock testified that the dock was engaged by the captain,
"who had something to do with ordering the repairs," and it
appeared that by direction of officers of the charterer work was
done not made necessary by the stranding. The captain testified
that he directed the repairs, because Gibson told him both need not
be there, and that after Crosby, the agent of the underwriters,
told him to keep a strict supervision over the work; that he
received no instructions from any person representing the plaintiff
or the charterer.
Crosby's evidence was that he gave no orders or instructions to
any person or persons as to the repairs on the steamer, nor did he
assume any responsibility therefor. He did tell the captain to be
careful "to keep what is in the survey separate from what is
outside." There was a dispute between the plaintiff's manager the
charterer's treasurer, the captain, and Crosby about the payment of
duties charged by the Canadian government on the repairs. And as
late as March 24, 1884, these duties and the fact that the repairs
included work not specified in the survey, still divided the
parties; nor from June 26 to the date of the proofs of loss,
November 3, was there any claim of total loss made, nor did such
seem to be the attitude of the parties until defendant refused to
pay.
In
Rich. & Ont. Nav. Co. v. Thames & M. Insurance
Co., the Supreme Court of Michigan, in a careful opinion, held
that the company could not defend on the ground that the peril and
loss were not insured against, because, as found by the
Page 136 U. S. 433
jury in that case, the abandonment had been accepted. The
plaintiff there rested its case entirely upon the acceptance of the
abandonment of the vessel, and the evidence upon that question was,
for some reason, largely different from the evidence on this
trial.
The court in this case left the question of abandonment to the
jury, and the finding was against the plaintiff. No reference is
made in the opinion on the motion for a new trial to this question,
though it is stated that the opinion "covers all the points made in
the briefs of counsel." But certain rulings of the court in
relation to this subject are questioned by the alleged errors under
consideration.
"Whether the insurer accepts or not is a matter of construction
of his words and conduct. Any act done for the purpose of making
the most of the property, to whomsoever it may prove to belong,
ought not to be construed against the party who thus consults the
common interest."
2 Phillips on Ins. §§ 1692, 1693. Any act of the
underwriter in consequence of an abandonment which could be
justified only under a right derived from it may be decisive
evidence of an acceptance.
Peele v. Merchants' Ins. Co., 3
Mason 27;
Gloucester Ins. Co. v. Younger, 2 Curtis 322.
The question for the jury was whether upon the evidence, taken in
connection with the provisions of the policy, there were any such
acts.
As it is not contended that there was any evidence of actual
acceptance, and as it clearly appeared that the rescuing expedition
was sent before the telegraphic notice of abandonment was given,
and as the evidence did not tend to show that that expedition was
sent with the intention of rescuing "and repairing" the
Spartan, or that the insurers brought the
Spartan
to Detroit (if they did bring her) with the intention of "repairing
her," each one of the requested instructions was objectionable.
Assuming that an offered abandonment may be accepted even when
the assured has no right to abandon, and that taking possession to
make partial repairs not amounting to indemnity may not be
authorized by the policy, and that taking possession of and holding
a vessel for an unreasonable time or taking
Page 136 U. S. 434
possession after a peremptory abandonment, without qualification
or reservation, are such acts as imply and constitute an acceptance
of the abandonment and liability for total loss, and that by the
abandonment and acceptance the whole interest is transferred to the
underwriters,
Copelin v. Ins.
Co., 9 Wall. 461;
Shepherd v. Henderson,
L.R. 7 App.Cas. 49;
Northwestern Transp. Co. v. Thames &c.
Ins. Co., 59 Mich. 214;
Ins. Co. v. Bakewell, 4
B.Mon. 541;
Reynolds v. Ocean Ins. Co., 22 Pick. 191, the
question still remains what the facts really are in respect to the
conduct of the underwriters. The plaintiff insists that although
the captain moved the
Spartan to Detroit and placed her in
the dry-dock, and to some extent, if not wholly, superintended the
repairs, the plaintiff was not bound by his action, because he was
not employed by it, but by the charterer, and that the master,
after abandonment, becomes the agent of the insurers.
But it is only after a valid abandonment and the passage of the
title that the captain thus becomes the insurers agent, and to
concede that here begs the very question which was at issue.
Phillips on Insurance § 1732.
The first and second errors were that the court ruled that no
authority was shown on the part of Captain Gibson to bind the
defendant in respect to the repairs made upon the
Spartan,
and in striking out the testimony respecting Gibson's acts and
statements. Crosby, who was the agent of the insurance company at
Buffalo, testified that he
"gave no orders or instructions to any person or persons
whatsoever as to the repairs on the steamer, nor did he assume any
responsibility therefor; that he sent Gibson to Detroit to act on
the survey on the
Spartan, and afterwards sent him to see
that no more repairs were put on the steamer than were called for
by the survey, as the
Spartan had been damaged on previous
occasions and not properly repaired,"
and further that "Mr. Gibson was sent by the insurers from
Buffalo to hold a survey on the steamer before she was repaired."
This is all the evidence bearing on Gibson's authority, and the
court was justified in its action. Why Gibson was not called as a
witness does not appear.
Page 136 U. S. 435
It is urged thirdly that the court erred in excluding the
question put to the witness Patterson: "What is the custom of
Canadian vessels about carrying a lookout forward?" The Canadian
statute provided that every steamer should, in a fog, mist, or
falling snow, go at a moderate speed, and that nothing in the rules
prescribed should exonerate any ship, or the owner, or master, or
crew thereof from the consequences of any neglect to keep a proper
lookout, etc.
In
The Farragut,
10 Wall. 334,
77 U. S. 338,
it was held that the rule laid down by Congress to the same effect
intimated that the lookout was one of the ordinary precautions
which a careful navigation involved, and MR. JUSTICE BRADLEY,
delivering the opinion of the Court, said:
"A lookout is only one of the many precautions which a prudent
navigator ought to provide, but it is not indispensable where, from
the circumstances of the case, a lookout could not possibly be of
any service."
Evidence of a custom to run at full speed in a dense fog,
without a lookout, and contrary to the statute, would be clearly
inadmissible, and would be of no avail if established.
It is also objected that the protest was admitted in evidence.
That protest consists of the statement signed by the master, mates,
and wheelsman, and the declaration of the notary that he protests
at the request of the master, as well on his own behalf as on the
behalf of the owners, freighters, officers, and crew, against all
and singular the cause and causes operating as aforesaid, etc., and
more especially "against the storm and heavy winds and gales, high
and dangerous seas, fogs, and defective compass, experienced on her
late voyage," all of which is certified by the notary public as
being a true copy filed in his office. Undoubtedly the protest of
the captain, so long as he was living, would not be evidence on one
side or the other unless to contradict him if he varied from it,
and it is said in 2 Arnold on Insurance (2d ed. by Perkins), Vol.
II, p. 1353, that it would not be made evidence as against the
assured if the brokers showed it to the underwriters with other
papers relating to the loss on demand of payment. But it was
admissible in this case not on the ground of agency, but because it
was made part of the proofs of loss, being directly referred to
Page 136 U. S. 436
in the proofs in the statement that the vessel ran ashore,
"and became a wreck and total loss, and was duly abandoned by
the owners to her insurers, as will appear by certified copy of the
protest of her master and mariners, heretofore served upon
you."
Hence, the admission of the proofs of loss involved the
admission of the explanatory writing.
Ins. Co. v.
Newton, 22 Wall. 32.
Finally it is said the court erred in excluding the record in a
suit instituted by the dry-dock company against the
Spartan to enforce a lien for the repairs, because the
record was admissible to show the amount due to the dry-dock
company, and also to show that the steamer was sold to satisfy the
decree in that suit, and thereby to establish a constructive
acceptance of abandonment by the insurers; but we do not think that
it was admissible on either ground. The insurers were not parties
to that suit, and the cost of the repairs and the amount of the
loss were properly shown by other and competent evidence, while the
sale of the vessel had no tendency to prove the acceptance of the
abandonment, but rather that the underwriters did not consider
themselves bound in the premises. The result is that the judgment
of the circuit court must be
Affirmed.
