Statement of the Case. 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 libelled 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." Statement of the Case. 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 Argument for Plaintiff in Error. 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." Mr. F. H. Canfield for plaintiff in error. The rulings of the court below which are now presented for review, may be considered under two distinct heads: 1st. Those which relate to the cause of the loss. 2d. Those which relate to an acceptance of the abandon ment. I. In behalf of the plaintiff we submit that the stranding of the steamer at night in a fog, with a heavy sea, was prima facie a loss by a peril insured against, and we therefore insist that the court erred in not charging the jury in accordance with plaintiff's first, second and third requests, which were to the effect that the stranding of the Spartan on Caribou Island, 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. It is clear from the charge given and also from the opinion. of the court upon the motion for a new trial, that the court Argument for Plaintiff in Error. departed from the rule applicable in cases of marine insurance, which regards only the proximate cause of the loss, and according to which, if the proximate cause of the loss was a peril insured against, the underwriters would be liable, although such proximate cause may have been brought into operation by a peril not insured against; or, to state the rule in another form, if the proximate cause of the loss be a peril insured against, the underwriters will be liable, although other perils not covered by the policy may have contributed to bring about the loss. Columbia Ins. Co. v. Lawrence, 10 Pet. 507; Waters v. Merchants' Ins. Co., 11 Pet. 213; Peters v. Warren Ins. Co., 14 Pet. 99; Orient Ins. Co. v. Adams, 123 U. S. 67; General Mutual Ins. Co. v. Sherwood, 14 How. 351; Dudgeon v. Pembroke, L. R. 9 Q. B. 581; S. C. 2 App. Cas. II. L. 284; Davidson v. Burnand, L. R. 4 C. P. 117; Ionides v. Universal Ins. Co., 14 C. B. (N. S.) 259. We submit, that by the true interpretation of this policy the insurers take upon themselves all the perils of the lakes, rivers, etc., that may come to the damage of the vessel, and that they are responsible for all losses except those "consequent upon" "arising from" or "caused by" the excepted perils; and if the underwriters seek to defend upon the ground that there was "a want of ordinary care and skill" in the navigation, the burden of proof is with them to show that such want of ordinary care and skill was the proximate cause of the loss. In Union Ins. Co. v. Smith, 124 U. S. 405, the policy was identical with the one at bar, and it was there held that the defendant, having set up in its answer that the loss was occasioned by want of ordinary care in managing the vessel, it was not error to charge the jury that such want of ordinary care must be shown by a fair preponderance of proof on the part of the insurers. Again, these exceptions are to be construed most strongly against the underwriters, they being the party by whom, and for whose benefit, the exceptions were introduced into the policy. Palmer v. Ins. Co., 1 Story, 360; Ins. Co. v. Wright, 1 Wall. 456, 468; Tudor v. New Eng. Ins. Co., 12 Cush. 554. Argument for Plaintiff in Error. Even in actions of tort the negligence of the plaintiff will not defeat his recovery, unless it contributed proximately to his injury. Beach on Contributory Negligence, pp. 7, 9, 27, and cases there cited: Railroad Co. v. Stout, 17 Wall. 657. Nor is the rule applicable to common carriers who have negligently exposed the goods intrusted to their care to a peril excepted in their bill of lading, to be applied to cases of marine insurance. A carrier becomes an insurer of the safe delivery of goods, unless prevented by the act of God or the public enemy, or unless the loss results from a cause excepted in the bill of lading. But if the carrier's negligence has exposed the goods to loss from such excepted cause, he is not to be held liable, unless such negligence contributed proximately to the loss. Railroad Co. v. Reeves, 10 Wall. 176; Morrison v. Davis, 20 Penn. St. 171; Denny v. New York Cent. Railroad, 13 Gray, 481; Daniels v. Ballantine, 23 Ohio St. 532. Why should the assured in a case like this be held to a stricter rule than the one applicable to carriers under the decision in 10 Wallace above cited? The decisions of the Admiralty courts cited by the District Judge in his opinion, holding that a violation or a departure from the statutory rules intended to apply in cases of collision, is to be presumed to have contributed to the disaster, have no bearing upon the present case, for the reason that neither those rules nor the doctrine of contributory negligence has any application to the case at bar. Hoffman v. Union Ferry Co., 68 N. Y. 385. The instruction of the court is not to be sustained by reason of the Canadian statute referred to by the District Judge, being chapter 29, 43 Vict. See Grill v. Iron Screw Collier Co., L. R. 1 C. P. 600; The Pennsylvania, 19 Wall. 125. If it was intended that these statutory rules should be incorporated into this policy, why is it not so stipulated? What is ordinary care in a case like this is a question of fact for the jury, to be determined by the evidence as to the manner in which such steamers are ordinarily navigated. And whether there was a want of ordinary care in navigating the VOL. CXXXVI-27 |