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Opinion of the Court.

men, in case you shall find, as I have said before, that this lo88 was occasioned by a defective compass, the defendant is entitled to your verdict.

On the other hand, if you shall find that the lo88 occurred through peril of the sea and from no want of skill in navigation and no want of competency in the master or sufficiency of the crew and from no fault on the part of the vessel, then your verdict should be for the plaintiff.

The court also instructed the jury:

“The stranding of said steamer at a point 17 miles out of the course on which said steamer was running in navigating the distance of about 130 miles is prima facie evidence that the compass was defective, and throws the burden of proving that the compass was correct upon the plaintiff.

“I charge you, as requested by the plaintiff in his eighth request, that the jury are entitled to consider the fact that the Spartan had been successfully navigated by this compass during the season up to the time of her stranding, and that on her final trip she had made a good course from Fort William to Silver Island and from Silver Island to Passage Island, and that she was upon her usual course when she passed the Quebec, as evidence tending to show that the officers had reason for believing that the compass was a proper one, and to rebut the charge that they were negligent in using that compass.

“The steamer is presumed to have been seaworthy, and that her officers were competent to navigate and manage her, and the insurers are not entitled to a verdict on account of unseaworthiness unless they prove by a preponderance of evidence that she was unseaworthy.

“But that is to be construed in connection with the charge I gave you that the fact that she ran ashore, on a still night, upon Caribou Island, 17 miles out of her course, raises the presumption of unseaworthiness, which it devolves upon plaintiff to explain.”

The court charged that there was but one defect in connection with the defence of unseaworthiness to which attention need be called, and that was “the want of a proper compass," and, among other things, said: “It was the duty of the plaintiff to keep the Spartan in a seaworthy condition for the safe

Opinion of the Court.

navigation of the waters in which she might be run under the policy. In order to be seaworthy the steamer must have been supplied with a good and reliable compass or compasses, which must have been kept in proper repair and condition for the safe navigation of all waters described in the policy. 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 defects in the compass, the vessel was not seaworthy for Lake Superior navigation, whatever her fitness for navigation elsewhere, and the plaintiff cannot recover.To the italicized portion of this the plaintiff excepted.

The declaration before the notary by the captain, two mates and wheelsman, states that “from the course taken the steamer should have passed seventeen miles to the southward of Caribou Island." The master had the words " fogs and defective compass” inserted among the causes protested against. There was no lookout, and both that and the rate of speed were contrary to the Canadian statute. The exception of losses occasioned by unseaworthiness was in effect à warranty that a loss should not be so occasioned, and whether the fact of unseaworthiness were known or unknown would be immaterial. This is so stated by the learned District Judge in his opinion on the motion for a new trial, and the decisions referred to fully sustain the position. Work v. Leathers, 97 U. S. 379; The Glenfruin, 10 P. D. 103; Union Insurance Company v. Smith, 124 U. S. 405. But the testimony of the captain and his mates leaves but little, if any, room for doubt that the compass was known to be defective on former trips. The captain testified that he thought the loss was occasioned by a defective compass, but qualified that as merely given as a supposition; that the compass was defective more or less ; “it was running in opposite courses ;” that when the protest was signed he had the words “ fogs and defective compass ” inserted; that the loss was occasioned by a defective compass or fogs or the current; that he had experienced on previous trips no more variation than was general on iron vessels; that “another compass on that vessel

Opinion of the Court.

might be just the same and different on wooden vessels; that the stranding must be attributed to the compass or some other cause aboard the vessel; that all compasses on Lake Superior vary more or less at different points ; that he could not tell the extent of the variation; that he discovered a little difference from some other vessels in the compass on former trips; that he found the compass out in the other channel; and that every vessel he was on varied there in the same place. The first mate testified that the captain spoke to him about the defect, and said the.compass was “a little out; it was not like the compass he had on the Smith;” that the captain laid the stranding solely to the compass; and further, that the compasses “all vary up there; those that have not been adjusted, they vary more at certain points than others; a compass that is adjusted should not vary at all;" that he did not know how much the variation of the compass was; that he steered the small boat by the spirit compass after the stranding, on a S. E. by E. course, and brought up 40 miles from the point for which he steered; “the course actually run must have been south, or something like that, judging from where she fetched up.” The second mate, when asked what took them on Caribou Island, answered, “It must have been the fault of the compass." Patterson, the charterer's manager, said that there was more attraction on an iron than on a wooden vessel; that to meet and obviate this, it is usual to adjust compasses; that this compass had never been adjusted ; that the Spartan had been fitted out by the plaintiff; that the compass was a little slow in its movements; that he did not know that compasses are specially adjusted to run on Lake Superior. The evidence taken together did not fairly leave the inquiry open as to whether the compass did not vary more than vessels' compasses ordinarily did, or whether the officers, at the time the Spartan started on the voyage, believed the compasses to be reliable or had reason for such belief, any further than was covered by what the court said on that subject. And the slight inaccuracy in the reference to the protest is of no moment.

Opinion of the Court.

The eighth, ninth, tenth, eleventh and twelfth assignments of error relate to the question of abandonment. It is not contended that there was any evidence establishing an actual acceptance of abandonment, but it is argued that the evidence tended to show a constructive acceptance. If the loss was the result of a peril not insured against, there was no right to abandon, but it is insisted that if the abandonment is accepted, it is too late to recede, and that an acceptance in ignorance that the loss was occasioned by perils not insured against would be equally binding. And this was so held by the Supreme Court of Michigan, Richelieu & Ontario Navigation Co. v. Thames & Mersey Insurance Co., 72 Michigan, 571, which was an action by the present plaintiff against another of the insurers of the Spartan. But the testimony in that case in regard to the repairs was not the same as in the case in hand, as is conceded by plaintiff's counsel, and it is upon that very point of the repairs that the plaintiff chiefly relies to make out the alleged constructive acceptance.

The “sue and labor clause" of the policy was as follows: “It is agreed that the acts of the insured or insurers, or their agents, in recovering, saving and preserving the property insured, in case of disaster, shall not be considered a waiver or an acceptance of an abandonment, nor as affirming or denying any liability under this policy, but such acts shall be considered as done for the benefit of all concerned and without prejudice to the rights of either party." The bill of exceptions shows that the officers and crew of the steamer were unable to get her off, and notice was sent to the owners and charterers, and notice of the loss was also communicated to the underwriters, with a request for assistance, and the underwriters sent a wrecking expedition, under the command of Captain Swain, to rescue the steamer. The request for assistance was received June 22, and the wrecking expedition left Detroit June 23, and reached the Spartan June 25. The telegraphic notice of abandonment was sent to the underwriters on June 26. The policy provided that in case of loss or misfortune it should be lawful and necessary for the assured "to make all reasonable exertions in and about the defence, safeguard and

Opinion of the Court.

recovery of the said vessel or any part thereof, without prejudice to this insurance;” and in case of neglect or refusal on the part of the insured to adopt such measures, “then the said insurers may and are hereby authorized to interpose and recover the said vessel.” Captain Swain, who had command of the wrecking expedition, testified that he had no orders where to take the steamer when she was got off, and he and the first mate agreed in testimony that she was towed to Detroit under the orders of her master. The captain denied that he gave such orders. The survey was held by Gibson, acting for the underwriters, and Kirby, for the charterer. The superintendent of the dry dock testified that the dock was engaged by the captain, “who had something to do with ordering the repairs,” and it appeared that by direction of officers of the charterer work was done not made necessary by the stranding. The captain testified that he directed the repairs, because Gibson told him both need not be there, and that after that Crosby, the agent of the underwriters, told him to keep a strict supervision over the work; that he received no instructions from any person representing the plaintiff or the charterer.

Crosby's evidence was that he gave no orders or instructions to any person or persons as to the repairs on the steamer, nor did he assume any responsibility therefor. He did tell the captain to be careful "to keep what is in the survey separate from what is outside.” There was a dispute between the plaintiff's manager, the charterer's treasurer, the captain and Crosby about the payment of duties charged by the Canadian government on the repairs. And as late as March 24, 1884, these duties, and the fact that the repairs included work not specified in the survey, still divided the parties; nor from June 26 to the date of the proofs of loss, November 3, was there any claim of total loss made, nor did such seem to be the attitude of the parties until defendant refused to pay.

In Rich. & Ont. Nav. Co. v. Thames & M. Insurance Co., supra, the Supreme Court of Michigan, in a careful opinion, held that the company could not defend on the ground that the peril and loss were not insured against, because, as found by the

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