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U.S. Supreme Court

Richelieu & Ontario Nav. Co. v. Boston Marine Ins. Co., 136 U.S. 408 (1890)

Richelieu and Ontario Navigation Company v.

Boston Marine Insurance Company

No. 290

Argued April 25, 1890

Decided May 19, 1890

136 U.S. 408


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 libeled 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 is an action upon a policy of insurance, bearing date May 1, 1883, insuring the steamer Spartan, a Canadian vessel of 678 tons burden, from April 1 to November 30, 1883. The plaintiff in error, a Canadian corporation, chanrobles.com-red

Page 136 U. S. 409

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 are 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 2 o'clock in the morning of June 19th. 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 laid S.E. by E. 1/2 E. to White Fish Point, passing about eight miles to the southward of Caribou chanrobles.com-red

Page 136 U. S. 410

Island, 132 miles from Passage Island. About 8 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:

"Monday Evening."

"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. 1/2 E. small. If it clears, continue on your course S.E. by E. 1/4 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 45 pounds, her maximum pressure being 47 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 was sent by the master to the insurer's 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 defendants' chanrobles.com-red

Page 136 U. S. 411

agents at Buffalo, as follows: "Spartan ashore on Caribou Island, and this company beg to inform you that they abandon the boat, and claim a total loss. Please inform the underwriters."

The steamer was brought to Detroit, as alleged on the one side, by the order of her master, and there docked and repaired under his instructions, which is denied on the other. That the cost of rescuing the steamer and towing her to Detroit was $7,455.13, which was paid by the underwriters. It is in dispute as to who ordered the repairs, or claimed or exercised control over them or the steamer, or directed where she should be brought, but it is not shown that either plaintiff or defendant did. The repairs were made by the Detroit Dry-Dock Company, and completed in September at a cost of from $23,000 to $24,000. In November, plaintiff served on the insurers proofs of loss, verified November 3, 1883, in which it is stated:

"That the said vessel, in the prosecution of a voyage from Fort William, on the north shore of Lake Superior, in the province of Ontario, to Owen Sound, on Georgian Bay, in said Province of Ontario at about 2 o'clock on the morning of the 19th of June last, in a fog, ran ashore on the southwest shore of Caribou Island, and became a wreck and total loss, and was duly abandoned by her owners to her insurers, as will appear by certified copy of the protest of her master and mariners, heretofore served upon you, in consequence of which the said Richelieu and Ontario Navigation Company suffered damage, sustained loss or damage, within the perils insured against under the said policy No. 1,965, to the amount of ten thousand dollars, as will further appear by particular statement herewith."

The agents of the insurers knew nothing of the facts attending the stranding, except what the protest showed, until after March, 1884. Up to that time, plaintiff and the underwriters had been negotiating for a settlement of the loss, but could not agree upon the liability for duties upon the repairs, but after discovery of the facts, the defendant and the other insurers refused to pay. Upon the trial, the jury found a verdict for the defendant, on which judgment was entered. chanrobles.com-red

Page 136 U. S. 412

The opinion of Judge Brown, the district judge, on the motion for a new trial will be found in 26 F.5d 6.

The cause was brought to this Court by writ of error, and errors were assigned as follows: that the circuit court erred

1. In ruling that no authority was shown on the part of Captain Gibson to bind the defendant in respect to the repairs made upon the steamer Spartan.

2. In striking out all the testimony respecting the acts and statements of Gibson.

3. In excluding this question put by plaintiff's counsel to the witness Patterson: "Question. What is the custom of Canadian vessels about carrying a lookout forward?"

In refusing to instruct the jury according to the requests made by plaintiff's counsel, as follows:

4. First.

"If the jury find that the Spartan, while navigating Lake Superior on June 19, 1883, and while a dense fog prevailed, was stranded on Caribou Island, and that the insurers were promptly notified of the disaster, and that proper proofs of loss were furnished to the insurers, then the plaintiff has made a case which prima facie entitles it to a verdict in this case."

5. Second.

"The stranding of the Spartan on Caribou Island while a dense fog was prevailing was an accident which is prima facie covered by the policy, and for which the insurers are prima facie liable."

6. Third.

"If the jury find that the fog contributed proximately to the stranding of the Spartan, then the insurers are liable for the loss caused by such stranding."

7. Fourth.

"There is no evidence in the case which even tends to prove the unseaworthiness of the Spartan except in regard to her compass, and if the jury find that the compass had not varied more than vessels' compasses ordinarily do, that the steamer had been navigated by the same compass without trouble from the time she left La Chene, on the St. Lawrence River, up to the time of the disaster, and that the officers of the steamer at the time she started upon the voyage on which the stranding took place believed the compass to be reliable, and had reason for so believing, then the insurers

Page 136 U. S. 413

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 libeled 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. "

Page 136 U. S. 414

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:


"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."


"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."


"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."


"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."


"I charge you, as requested by the defendant in his seventh request, that under the evidence in this case, the

Page 136 U. S. 415

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."


"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."


"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. "

Page 136 U. S. 421


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