Lapas attēli

Argument for Plaintiff in Error.

Spartan at her usual speed upon the broad lake — with no other vessel in the vicinity, simply because a fog prevailed, was a question for the jury.

II. The court erred in charging the jury that “under the evidence in this case the burden of proof is upon the plaintiff to show that the stranding of the steamer could not have been guarded against or prevented by the ordinary exertions of human skill and prudence.”

We claim this to be erroneous for two reasons :

(1) Because it puts the burden of proof upon the wrong party. As already shown, but for the exceptions in the policy, negligence on the part of the officers and crew would be no defence. And under the decision of this court in Union Ins. Co. v. Smith, 124 U. S. 405, already cited, the burden is with the defendant, if it seeks to bring itself within the exception of a want of ordinary care in the navigation of the vessel, “to establish negligence by a fair preponderance of proof.”

(2) There is nothing in the law of marine insurance even under such a policy as this, which relieves the insurer from liability, although the insured may have failed to use all ordinary skill and prudence to prevent disaster. Unless the want of such skill and prudence was the proximate cause of the loss, it would be no defence.

III. The defence of unseaworthiness relates wholly to the compass.

It should not be forgotten that the policy of insurance in this case was a time policy, and that there is no warranty of seaworthiness in a time policy. If the vessel was seaworthy at the time the policy was issued, no subsequent unsea worthiness would affect the liability of the insurers. Thompson v. Ilopper, 6 El. & Bl. 171; Merchants Ins. Co. v. Morrison, 62 Illinois, 242; Gibson v. Small, 4 H. L. Cas. 353; Dudgeon v. Pembroke, L. R. 9 Q. B. 581.

The record shows, beyond all question, that the steamer was seaworthy when the policy was issued. She had been navigated by the same compass during the entire season up to the time of the loss. From Lachine, on the St. Lawrence River, she had been navigated to Owen Sound. From Owen

Argument for Plaintiff in Error.

Sound she had made three trips on her regular route to Port Arthur, running as well by night as by day, encountering much fog, but experiencing no difficulty whatever from the compass. The owner of an appliance or a vessel, which has been known to operate safely and satisfactorily in a variety of circumstances, may continue to use it without subjecting himself to the charge of negligence simply because an accident occurs subsequently, he being in ignorance of its actually having become defective. This is a proposition sustained by good sense and judgment, and is recognized by the authorities. Burke v. Witherbee, 98 N. Y. 562; Loftus v. Union Ferry Co., 84 N. Y. 455; Cleveland v. New Jersey Steamboat Co., 63 N. Y. 306; Dougan v. Champlain Transportation Co., 56 N. Y. 1.

IV. The court erred in admitting the protest in evidence.

2 Arnould on Ins. 1353, says: “ The protest of the captain, so long as he is living, is in no case evidence on the one side or the other; the only use that can be made of it is to contradict his testimony if he vary from it; it cannot be adduced to disprove the grounds of the condemnation of a foreign prize court; nor will the brokers, having shown it to the underwriters with other papers relating to the loss, on demand of payment, make it evidence as against the assured.” See also Senat v. Porter, 7 T. R. 158.

That the admissions of the master, not made as part of the res gesta, are not admissible in evidence, is well established by the authorities. Packet Co. v. Clough, 20 Wall. 528; Am. Steamship Co. v. Landreth, 102 Penn. St. 131; Ins. Co. v. Mahone, 21 Wall, 152, 157; Adams v. Hannibal &c. Railroad, 74 Missouri, 553, 557, 559; Lane v. Bryant, 9 Gray, 245; Bacon v. Charlton, 7 Cush. 581; Luby v. Hludson River Railroad, 17 N. Y. 131; Randall v. N. W. Tel. Co., 54 Wisconsin, 140; Bellefontaine Railroad v. Ilunter, 33 Indiana, 335.

V. As to the acceptance of the abandonment: We claim that the evidence shows, or at least tends to show, a constructive acceptance by the underwriters. That the taking possession of a vessel, or proceeding to repair her by the underwriters after notice of abandonment, without protest or notice

Argument for Plaintiff in Error.

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of their intentions, is evidence of an acceptance, is recognized
by all the authorities. Cincinnati Ins. Co. v. Bakewell, 4 B.
Mon. 541, 557; Provincial Ins. Co. v. Le Duc, L. R. 6 P. C.
App. 224; Northwest Transportation Co. v. Continental Ine.
Co., 21 Fed. Rep. 171; Northwest Transportation Co. v.
Thames and Mersey Ins. Co., 59 Michigan, 214; Richelieu and
Ontario Navigation Co. v. Thames and Mersey Ins. Co., 40
Northwestern Rep. 758; Copeland v. Phænix Ins. Co., 1 Wool.
C. C. 278; S. C. 9 Wall. 461, sub nom. Copelin v. Ins. Co.,
Norton v. Lexington &c. Ins. Co., 16 Illinois, 235; Shepherd
v. Henderson, 7 App. Cas. 49; Reynolds v. Ocean Ins. Co., 22
Pick. 191; S. C. 1 Met. 160.

Defendant's counsel may argue that the underwriters were ignorant of the circumstances surrounding the loss, and therefore their taking possession of the steamer after notice of abandonment and getting her off, would not amount to acceptance of abandonment.

If the insurers were in fact ignorant of the circumstances surrounding the loss, (which is not conceded,) they could not go on indefinitely under the notice of abandonment. It was their duty to make inquiry. Mere ignorance on their part of the circumstances surrounding the loss would not prevent an acceptance of the abandonment, which their actions would otherwise indicate. They are to be judged by their acts.

Mr. Ilenry II. Swan for defendant in error

Mr. Joseph II. Choate for plaintiff in error.

It is impossible to sustain the general verdict which the jury found upon the several alternative propositions of law contained in the charge, which were duly excepted to. Where several distinct grounds of liability on the part of the defendant are submitted to the consideration of the jury, if either was improperly submitted, and the verdict is a general one, the judgment will be reversed, unless it appear that some one of the others was so clearly established by uncontroverted evidence as to have rendered it the duty of the court to direct

Opinion of the Court.

a verdict for plaintiff, and this for the obvious reason that it is impossible to determine upon which of the several alternative grounds which were left to them, the jury based the general verdict. Baldwin v. Burrows, 47 N. Y. 199; Maryland v. Baldwin, 112 U. S. 490, at p. 493.

The following distinct grounds of liability on the part of the defendant were submitted to the consideration of the jury:

First. If they found that there were any defects in the ompass, known or unknown, rendering it unsafe for use on Lake Superior, and the stranding was caused by such defects.

Second. If they found that the stranding occurred by the vessel's being navigated with excessive speed.

Third. If they found that the loss was occasioned by the want of a lookout.

Fourth. If it resulted from the incompetency of the master.

Fifth. If it resulted from insufficiency of the crew.

Sixth. Or if it resulted from want of ordinary care and skill in navigating the vessel.

Forasmuch, therefore, as this general verdict rests upon these six alternative propositions, and some of them certainly were improperly submitted, and it is impossible to say that the verdict was not found upon those so improperly submitted, the judgment must be reversed, and a new trial ordered.

Mr. CHIEF JUSTICE Fuller, after stating the case, delivered the opinion of the court.

In Liverpool Steam Co. y. Phenix Insurance Co., 129 U. S. 397, 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

Opinion of the Court.

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 steamship, 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 Eng. land 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, 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 non-observance 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 wilful 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.

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