any evidence that this damage was done before the crew abandoned her on the afternoon or evening of December 26th.

The meaning of the word "stranded" is well settled. The vessel must remain stationary for a time. Stranding implies a settling of the vessel, some rest or interruption of the voyage under extraordinary circumstances. If the ship merely touch and go she is not stranded, but a settling of the ship on land, be it rocks or bar or shore, so that she be stationary for even a brief period is a "stranding." (26 Cyc. 654.) Neither the master nor any member of the crew was a witness. Probably after the lapse of time between the catastrophe and the trial they were unavailable. Some of the considerations which the jury may have taken into account in construing this language are obvious. A ship left unattended and with so slight a fastening as the two jettisoned railroad irons in a wintry season, with a storm so severe as to cause the crew and the master to abandon her, might reasonably be supposed to have drifted until she came up against something solid enough to hold her; and the only substantial thing here was the east shore of the bay. The jury had a right to consider the state of the tide as a matter of judicial notice; but in addition to this the rise and fall of the tides at Uyak Bay appear to some extent from the maps in evidence. The fact that she had only a foot of water under her at high tide; that the tide rises and falls fourteen feet at that point; that the vessel drifted from early in the afternoon of the 26th to the morning of the 27th at a time when the daylight hours were very short in that latitude, and the condition of her bottom when surveyed-which was such as to show that she had pounded on the beach or rocks for a considerable period-all were circumstances which the jury had a right to consider in construing the words "on east shore of the bay."

Where language such as this, somewhat technical in character, of 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; and, indeed, this is in line with the authorities on this point of practice. The

jury are always the judges of the meaning of language employed by witnesses unless the meaning admits of no substantial doubt (Carpenter v. Fisher, 175 Mass. 9, [55 N. E. 479]; Snyder v. Bougher, 214 Pa. St. 453, [63 Atl. 893]; Reel v. Elder, 62 Pa. St. 308, [1 Am. Rep. 414.]). In view of this rule we do not feel that we can disturb this finding. Another question earnestly debated is whether the goods were stowed under deck.

The insurance was on the goods while "under deck" only. The defendant insists that there was no evidence that these goods were under deck; and here again counsel disagree as to the construction to be placed upon a particular part of the evidence. Mr. Erskine, a business man of Kodiak, who purchased the schooner at her sale, was examined as to the condition of the cargo. In the course of his examination by counsel for plaintiff he was asked if from his examination of the cargo made at Kodiak he could state whether or not the damage from salt water had occurred ten or fifteen days before the cargo was discharged at Kodiak, and answered that he could do so. The court, interrupting counsel, then asked him how he could do this, and he answered as follows: "For instance, the sugar and some of the flour was moldy. It was not very wet at the time we received it; it had been wet and had dried to some extent, and the mold had started." Thereupon counsel for plaintiff, resuming his examination, asked the following question: "Where was that particular cargo in the hold of the vessel with reference to the parts of the deck that were open?" The witness answered, "Well, it was under the damaged part of the deck." The court then again took the examination on itself and asked two or three questions. This, in effect, is the only direct evidence in the record on the question of whether the goods were under or above deck. It is very evident to anyone with even a sometime passenger's knowledge of the sea that with weather such as that encountered by the schooner no cargo such as this stowed on deck would remain fast. At least it must be said that the jury from these physical facts might have inferred that this cargo was under deck, since it remained on the schooner until it reached Kodiak. In addition to this, no other reasonable construction can be given to the question asked of the witness by counsel above quoted than that both he and the witness referred to the particular part of the

cargo involved in this action, that is, to the cargo insured by the defendant for the plaintiff here. The court, it is true, interjected a question of its own in the course of the examination; but counsel's examination was directed to ascertaining where this particular cargo, namely, the cargo which was the subject of this action, was stowed, and the witness answered that it was under the damaged part of the deck.

It seems to us that any other construction than that placed upon the evidence by the jury would have been strained indeed; and it certainly does not lie with this court to say that the jury could not have understood counsel and the witness to refer to the cargo involved in this action, and not to the sugar and flour mentioned by the witness in answering a question incidentally propounded by the court in the course of the examination. We will let this finding stand.

Chronologically at this point the question arises whether the insured refused to receive the cargo while the schooner was at Uyak. Counsel for defendant claim such refusal, which claim is contested by plaintiff's counsel.

We have seen that the jury must have found that the cargo did not reach its destination; but certain conversations and circumstances in which Cornell, the Mining Company's manager, and Captain Timm, the master of the schooner, figured while the vessel was off the cannery is the basis for the defendant's claim that the plaintiff refused to accept delivery of the cargo.

Here again we think the conversation open to two constructions, of which it must be assumed that the jury adopted that most favorable to the plaintiff. Let it be noted that here the burden is upon the defendant. Cornell met Captain Timm at the cannery on the morning of the 27th of December. He testified positively that no time was given him in which to discharge the cargo if he had tried; that he could not have done so without the consent of the captain; that he could not have taken it off in the condition in which the schooner lay at that time, and also that he had no men at the mine whom he could have sent out to get the cargo if it could have been discharged where the schooner lay. The caps had been jettisoned, as we have seen, and could not be delivered. There are two or three versions of these events in the transcript. The captain told Mr. Cornell that he had jettisoned the caps.

The latter then said that the powder was of no use to him and he could not receive it without the caps. The captain then volunteered to get other caps. He went to Kodiak, which was only eight or ten hours' journey by launch from the cannery; but instead of returning and taking the cargo up the bay, as he and Cornell evidently expected that he would, the captain brought back a launch from Kodiak and towed the schooner to that port. That there was a misunderstanding between the two men is possible even probable; but there is no evidence here from which the jury was bound to find that Cornell refused to receive this cargo. Two letters of Cornell to the president of the Mining Company, and a letter from the latter to the agents of the underwriters, give slightly different versions of this conversation from that contained in Cornell's testimony; but the burden of proof resting upon defendant to show the refusal of the plaintiff to accept delivery was not sustained-at least we cannot say that the jury were wrong in determining that it was not.

After she had been hauled off shore the schooner was taken to Kodiak, and after survey and notice she was sold. And here we meet the next question in the case, and that is, whether the master was justified in taking her to Kodiak and making the sale.

There can be no question that the storms had greatly damaged the rigging and hull of the vessel. Her crew had abandoned her. She was, it is fair to say, in a dangerous condition. The extent of her damage was not known or ascertainable at Uyak. She could tie to no wharf there; there was no dock in which she could lie. The master was no doubt justified in concluding that his ship could not safely sail from there under her own power. Her crew refused to serve her further without a survey to ascertain the extent and character of her damage. The law requires that in such cases the master must communicate with the owners; and Captain Timm accordingly went to Kodiak, the nearest port from which such communication was possible. When there he at once wired the owners reporting the wreck and the condition of the vessel, and received the reply "to use his best judg ment and to act for all concerned." He arranged accordingly to have the vessel towed to Kodiak, where there were ship's carpenters, seamen, and others competent to make sur86 Cal. App.-18

vey of her damage, and repairs if possible. That this was the only course that the master could in reason pursue seems very clear to us. It is easy to argue what might have been the better or more economical course; but this master faced the perils of the sea in a high latitude, subject to terrific storms on a treacherous coast in the depth of winter, with a vessel which was practically a wreck. We cannot say now that he did not exercise his best judgment in doing what he did.

The right to sell as well as the right to abandon must be determined by the master in the light of the facts available at the time, and he may not await the development of subsequent facts before deciding what to do (Fuller v. Kennebec Mut. Ins. Co., 31 Me. 325); and, of course, the question of whether a sale was necessary was a fact for the jury (Delaware Ins. Co. v. Winter, 38 Pa. St. 176; Robinson v. Commonwealth Ins. Co., 3 Sumn. 220, 20 Fed. Cas. No. 11,949).

Nor does the fact that this schooner was subsequently repaired by the purchaser show that the sale was not necessary (Fuller v. Kennebec Mut. Ins. Co., supra; Hall v. Ocean Ins. Co., 37 Fed. 371; In re Sarah Ann, 2 Sumn. 206, 21 Fed. Cas. No. 12,342). And conceding that counsel's contention is correct, and that the question of necessity is one of law and not of fact (which we are not willing to hold), we think the course pursued by the master in this case was necessary.

One other matter may be briefly mentioned. It appears plainly that Cornell did not consent to the schooner being taken to Kodiak. The owners received nothing from the sale

of the ship or cargo. The storm which was encountered near the entrance to Uyak Bay was the proximate cause of its loss, as all the subsequent events depended upon and flowed from the injury to the vessel caused by that storm. These considerations entitle the plaintiff to recover.

Some criticisms are offered upon the instructions of the trial judge. We have read them with care in the light of the strictures made upon them in the briefs of the appellant, and we find no reason to quarrel with them. They were clear and definite, and presented the questions of fact upon which the jury must find very plainly to them, and the court seems to have committed no error of law of any moment in these instructions.