Opinion of the Court. There would be, in this instance, the sums of money advanced by the city, and possibly the bonds furnished by the county, as a means of ascertaining the compensation due to the city of Marshall. Other considerations, such as the length of time that the contract has been complied with, the value of this compliance to the city, the probable loss of taxable property resulting from the violation of the contract, and other elements not necessary to be enumerated now, might enter into the question of damages, if the contract has really been violated. On the other hand, the enforcement of the contract by a decree of the court requiring the company to restore in all its fulness the offices, the workshops, and whatever has been removed from the city of Marshall, and the continued and perpetual compliance with all those conditions by the company, to be enforced in the future under the eye of a court of chancery, against the public interest, and, perhaps, manifestly to the prejudice and injury of the railroad company, exercising to some extent the public function authorized by the acts of Congress or of the legislature of Texas, present difficulties far more formidable than the action at law. It If the court had rendered a decree restoring all the offices and machinery and appurtenances of the road which have been removed from Marshall to other places, it must necessarily superintend the execution of this decree. It must be making constant inquiry as to whether every one of the subjects of the contract which have been removed has been restored. It must consider whether this has been done perfectly and in good faith, or only in an evasive manner. must be liable to perpetual calls in the future for like enforcement of the contract, and it assumes, in this way, an endless duty, inappropriate to the functions of the court, which is as ill-calculated to do this as it is to supervise and enforce a contract for building a house or building a railroad, both of which have in this country been declared to be outside of its proper functions, and not within its powers of specific performance. The cases cited on this subject in the brief of counsel we think are conclusive. In Marble Company v. Ripley, 10 Wall. Opinion of the Court. 339, 358, it was said: "Another serious objection to a decree for a specific performance is found in the peculiar character of the contract itself, and in the duties which it requires of the owners of the quarries. These duties are continuous. They involve skill, personal labor and cultivated judgment. It is in effect a personal contract to deliver marble of certain kinds, in blocks of a kind that the court is incapable of determining whether they accord with the contract or not. The agreement being for a perpetual supply of marble, no decree the court can make will end the controversy. If performance be decreed, the case must remain in court forever, and the court to the end of time may be called upon to determine, not only whether the prescribed quantity of marble has been delivered, but whether every block was from the right place, whether it was sound, and whether it was of suitable size or shape or proportion." This question was very fully considered, in reference to a contract for building a railroad, in the case of Ross v. Union Pacific Railway Company, 1 Wool. C. C. 26, in which nearly all the authorities up to that time are fully considered. It was decided that the court could not enter upon the duty of compelling one party to build a railroad, and the other party to pay for it according to contract. See also Port Clinton Railroad Company v. Cleveland & Toledo Railroad Company, 13 Ohio St. 544; South Wales Railway Co. v. Wythes, 5 DeG. M. & G. 880; Powell Duffryn Steam Coal Co. v. Taff Vale Railway Company, L. R. 9 Ch. 331. Without more minute examination of the authorities on this subject, we are of opinion that the plaintiff is not entitled to any relief in a court of equity. The decree of the court granting such relief is therefore Reversed, and the case remanded to the Circuit Court with directions to dismiss the bill. As the appeal of the plaintiff therefore fails, it is to pay the costs of this court on both appeals. MR. JUSTICE BREWER dissented from both the grounds set forth in the opinion. RICHELIEU AND Statement of the Case. ONTARIO NAVIGATION COM PANY v. BOSTON MARINE INSURANCE COMPANY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MICHIGAN. No. 296. Argued April 25, 1890.- Decided May 19, 1890. 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 libelled 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 was an action upon a policy of insurance, bearing date May 1, 1883, insuring the steamer Spartan, a Canadian vessel of six hundred and seventy-eight tons burden, from April 1 to November 30, 1883. The plaintiff in error, a Canadian cor Statement of the Case. poration, 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 were 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 two o'clock in the morning of June 19. 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 lay S. E. by E. E. to White Fish Point, passing about eight miles to the southward of Car Statement of the Case. ibou Island, one hundred and thirty-two miles from Passage Island. About eight 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: "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. $ E. small. If it clears continue on your course S. E. by E. 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 forty-five pounds, her maximum pressure being forty-seven 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 were sent by the master to the insurers' 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 defend |