[Civ. No. 1999. First Appellate District.-February 14, 1918.] AMOK GOLD MINING COMPANY, Respondent, V. CANTON INSURANCE OFFICE, LIMITED, Appellant.

MARINE INSURANCE LAW-ARRIVAL OF FREIGHT AT DESTINATION-INSUFFICIENCY OF EVIDENCE. In this action upon a policy of marine insurance covering the shipment of mining supplies from Seattle, Washington, to Uyak, Alaska, it is held that the evidence is insufficient to show that the vessel ever reached the destination contemplated by the policy.

ID.-STRANDING of Vessel-Burden of PROOF.-In an action on a policy of marine insurance, where it is contended that the vessel stranded, the plaintiff has the burden of proof.

ID.-STRANDING OF VESSEL-MEANING OF.-The word "stranded" means

that the vessel must remain stationary for a time, and implies a settling of the vessel and an interruption of the voyage under extraordinary circumstances. ID.-CONSTRUCTION OF TECHNICAL LANGUAGE QUESTION FOR JURY.— Where language somewhat technical in character, or if not technical, at least colored by the manner of expression of seafaring men with which landsmen are more or less unacquainted, is to be construed, it is far safer to leave the meaning thereof, with all the circumstances in mind, to the jury, than for courts to lay down a hard and fast rule as to what the language means.

ID.-REFUSAL TO ACCEPT FREIGHT-BURDEN OF PROOF.-In an action on a marine insurance policy, where the defendant contends that the insured refused to receive the goods, the burden of proof is upon the defendant to prove the issue. ID.-ABANDONMENT OF WRECKED VESSEL SALE RIGHT OF MASTER.

In an action on a marine insurance policy, the right to sell as well as the right to abandon the wrecked vessel must be determined by the master in the light of the facts available at the time, and he may not await the developments of subsequent facts before deciding what to do.

ID. RIGHT TO SELL WRECKED VESSEL SUBSEQUENT REPAIR.-The fact that a wrecked vessel was subsequently repaired by the purchaser does not show that a sale was not necessary.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. John Hunt, Judge.

The facts are stated in the opinion of the court.

Andros & Hengstler, and Golden W. Bell, for Appellant. Ira S. Lillick, for Respondent.

BEASLY, J., pro tem.-This is an action upon a policy of marine insurance, in which plaintiff recovered a verdict of $1,923, interest and costs; and defendant appeals from the judgment entered thereon.

By the policy the defendant insured mining supplies consisting of fifteen hundred feet of fuse, five drums of gasoline, one ton of sacked coal, seven tons of dynamite and 1M blast caps, "in the power schooner 'Harold Blekum' at and from Seattle, Washington, to Uyak, Alaska." Subject to the effect of certain conversations between the master of the schooner and the owner, it is conceded that the underwriters were liable upon the policy until the goods could be discharged and safely landed at Uyak, Alaska; and the first question on which counsel disagree is the meaning to be attached to the words "to Uyak."

To persons unacquainted with the remote coasts and harbors of the Alaskan peninsula and the conditions existing there this would seem an easy question, but it is not so under the facts of the case, and in view of the varied adventures which befell the schooner on its unlucky voyage. The facts are such that these words must be defined in view of all the surrounding circumstances and conditions; and some light may be shed upon their meaning by another question, namely, Where was it intended that the goods should be landed from the "Harold Blekum?"

Uyak Bay is a deep inlet from the Shilikof Strait into Kodiak Island. There was in January, 1915, when the "Harold Blekum" arrived there, a cannery, a store, and a postoffice situate near the mouth of the bay, and marked "Uyak" on the maps in evidence at the trial. There were other canneries and also mines at various points on Uyak Bay, and among the mines that of plaintiff situate some twelve or fifteen miles up the harbor. One witness testified that there is no such thing as a town at Uyak. In the busy season of the cannery there were four or five hundred people there, but in winter there was a caretaker and three or four other persons who lived in the neighborhood. The evidence

discloses that the plaintiff had been shipping for ten or twelve years up there; that their cargo was always marked "Uyak," and that the ships, to use the language of one of the witnesses, "came right to our place, Uyak. They stopped at the cannery on the way back," and that the manager of the Mining Company expected that the captain would bring the cargo up to the mine, "and," said one of the witnesses, "the mine is as much part of Uyak as the cannery is a part of Uyak. There is no public landing at the cannery but only a private wharf of the canning company. Upon this the cargo insured by the defendant could not be discharged; and this "point on the map," as it is called by one of the witnesses, is on the opposite side of the bay from the Amok mine, and distant twelve or fifteen miles therefrom. The bay is from one to five miles wide and is a deep-water harbor up to the mine. The "Harold Blekum" was not permitted to tie up to the cannery wharf, but having done so without permission temporarily, was promptly ordered away.

Another incident bears on the question of the destination of this freight. The "Harold Blekum" had on board as merchandise thirteen thousand feet of lumber, and this lumber the manager of the Amok mine, while the schooner was off the cannery, agreed to purchase, it being clearly intended by both him and the captain of the schooner that this lumber should be delivered at the mine.

Counsel for the defendant accumulates much persuasive evidence in support of his contention that the terminus ad quem of this voyage was the cannery; but while we might so find if it were left to us we must, nevertheless, under the well-known rule, leave the defendant to the finding of the jury on this point, which, to support the verdict, must be presumed to have been that the terminus ad quem as to the insured cargo involved in this case was the mine and not the cannery.

But conceding that the destination was the cannery, it is still not apparent that the "Harold Blekum" ever actually reached that port in the sense in which this policy contemplates. She arrived off the cannery wharf in the roughest kind of wintry weather; she tied up to the wharf for a very brief space of time without permission and was promptly ordered away. She was never in a position in which cargo

could be unloaded. Where she lay, as the witnesses testified, it was impossible to discharge the cargo, and this was in part on account of injuries which the schooner had sustained by reason of a storm which she had encountered, and in part by reason of the position in which she lay. She was compelled, as we shall hereafter see, to leave the bay without discharging this cargo, and to proceed to Kodiak, and she never returned to the bay. To have reached the terminus ad quem of the voyage as it concerned this insured cargo she must have come into a position in Uyak Harbor at least from which this cargo could have been discharged and at which the owners could have received it; in other words, to a place where the master of the ship had a right to demand that the owner of the cargo should receive it at his hands. She never came into such a position.

The history of this voyage throws light on all the questions involved in this case. The "Harold Blekum" departed from the port of Seattle on the first day of December, 1914, bound ultimately for Unga, Alaska, where she had cargo to discharge, and with the insured cargo on board. On December 26th, while at Karluk anchorage, the schooner encountered heavy weather off the entrance to Karluk Bay. A black squall with snow struck her and she pitched bows under, and being at the time at anchor started to drag toward the shore. The master and crew, fearing an explosion of the caps which formed a part of this cargo, jettisoned them. The vessel cleared soon after, and the master put her before the wind for Uyak; but two hours later, in a terrific woolly, she lost much of her rigging. She was finally again brought to anchor in fourteen fathoms, but the heavy weather snapped her moorings and she went adrift. The mainsail still held though much damaged, and it was set and an attempt made to beat up to the cannery wharf, but the snow blinded the crew and she got too close to the west shore, missed stays, and to save the vessel three iron rails were jettisoned on the end of the fore-deck with ropes attached. One parted and the other two held. The vessel was then "right amongst the rocks." The crew, fearing that when she started to pound at low tide the dynamite might be exploded, and also with the indication of a dirty night, refused to remain on board and landed on the beach.

The subsequent history of the schooner's adventures can be best discussed after understanding the question for the consideration of this court which arose from them, namely, whether the schooner stranded. It is conceded that if the vessel stranded the warranty was opened.

The question whether she stranded is earnestly presented on both sides, the defendant contending that there is no evidence that the vessel ever stranded, and that as a matter of law it appears from the evidence that she did not strand; and the plaintiff asserting that there was sufficient evidence that the vessel did strand to warrant the jury in finding the fact, and that the whole question is one of fact for the jury.

The burden of proof of the stranding is, as contended by appellant, upon plaintiff.

On the morning following the abandonment of the vessel the master and mate, with one Peter Petrofskey, found the vessel, quoting the log, "on east shore of the bay with two irons still down and one foot of water under her at high water." There was no evidence as to whether it was then high water or not. They pumped her out, and the master and mate, using the anchor and line of Petrofskey's launch, kedged her into deep water, slipping the lines on the irons.

The contest of counsel is over the meaning of the words "on east shore" found in the log of the schooner. Defendant contends that this expression means that she was found near the east shore but still afloat. Plaintiff contends that the words, taken with other evidence, were sufficient to justify a jury in finding that she had stranded. The other evidence is found in a survey of the vessel subsequently made at Kodiak, and which showed the false keel of the schooner to be torn off sixty-five feet abaft the fore-rigging, and the main keel considerably bruised and battered, the stern started and the bolts driven inward over a distance of about six inches, six butts on the bottom and the stanchions on the port side started, and thirty feet of the rail crushed inward; the deck strained and the rigging badly battered; the windlass strained, the spindle bent, and all the anchors missing. There was no evidence that the ship had been aground at any time between the occasion when she was kedged into deep water from her position on the morning of the 27th of December and the time when she was surveyed at Kodiak; nor