Melville Fuller

“ 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 unsate 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. ”

“ The Canadian statute put in evidence (1 St. Can. 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 steam-ship, 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. ”

“ 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 & O. Nav. Co. v. Thames & M. Ins. Co., 40 N. W. Rep. 758,) which was an action by the present plaintiff against another of the insurers of the Spartan. ”

“ The law of Canada provides 'that all vessels shall run in a fog at a moderate rate of speed.' Now, it strikes me-but the question is one for your determination-that a vessel is not under an obligation while navigating the open lake to slacken her speed because of a fog, unless there is some reason to apprehend collision with another vessel, or unless the vessel is so near the shore, or known to be so near the shore, that she might run upon it, unless she was navigated at a less rate of speed ”

“ The answer and the witness both seem to assume that running against a cape or a continent is one of the usual accidents and unavoidable dangers of the sea. That cannot be termed an 'accident of the sea' within the exceptions of the bill of lading, which proper foresight and skill in the commanding officer might have avoided. ”

“ That protest consists of the statement signed by the master, mates, and wheeslman, and the declaration of the notary that he protests at the request of the master, as well on his own behalf as on the behalf of the owners, freighters, officers, and crew, against all and singular the cause and causes operating as aforesaid, etc., and more especially 'against the storm and heavy winds and gales, high and dangerous seas, fogs, and defective compass, experienced on her late voyage;' all of which is certified by the notary public as being a true copy filed in his office. ”

“ Undoubtedly the protest of the captain, so long as he was living, would not be evidence on one side or the other, unless to contradict him if he varied from it; and it is said in 2 Arn. Ins. (2d Ed. by Perkins,) 1353, that it would not be made evidence as against the assured, if the brokers showed it to the underwriters with other papers relating to the loss on demand of payment. ”

“ The insurers were not parties to that suit, and the cost of the repairs and the amount of the loss were properly shown by other and competent evidence, while the sale of the vessel had no tendency to prove the acceptance of the abandonment, but rather that the underwriters did not consider themselves bound in the premises. ”

“ 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 know how much the variation of the compass was ”

“ Crosby, who was the agent of the insurance company at Buffalo, testified that he 'gave no orders or instructions to any person or persons whatsoever as to the repairs on the steamer, nor did he assume any responsibility therefor; that he sent Gibson to Detroit to act on the survey on the Spartan, and afterwards sent him to see that no more repairs were put on the steamer than were called for by the survey, as the Spartan had been damaged on previous occasions and not properly repaired;' and, further, that 'Mr. ”