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and evidence in the case “F. & P. M. No. 2.” The policy ran from noon of August 1, 1892, to noon of December 5, 1892, and insured the plaintiff in the sum of $15,000. The risks covered by the policy are thus defined in that instrument:
"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, 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, or in loading, stowing, or securing the cargo of said vessel; rottenness, inherent defects, overloading, and all other unseaworthiness, theft, barratry, or robbery; charges, damage, or loss in consequence of the seizure or detention by reason of any proceedings at law, in equity or in admiralty, or by reason of any illicit or prohibited trade or any trade in articles contraband of war; the violation of any law, ordinance, or regulation to which the said vessel may be subject.
The other provisions of the policy are such as are found in the usual form of lake hull policy, and are not material here.
The insured steamer, laden with a cargo of flour, bran, feed, and shorts, was, when stranded, on a voyage from Duluth, Minn., to Ogdensburg, N. Y. Having stopped at Amherstberg for fuel, she left that place at 12:20 p. m. of the 18th of November, 1892, the wind being then W. S. W., blowing hard, and continued so. About 12 a. m. of the 19th of November, she met with light snow, which continued until about 3 o'clock a. m., when, as the protest states"It snowed so hard we could not see more than the length of the boat. At this time we were steering E. N. E. At 3:55 o'clock we checked the vessel down so she was making from four to five miles per hour, and ran at that speed for one hour and forty minutes, when it cleared up somewhat, and we thought we saw the land, and hauled her out a point. The second mate commenced to throw the lead, and, finding no bottom, ordered her back on her course again, but continued to throw the lead. It shut in thick again, and the man at the lead sang out, '8 fathoms! We were still under check, and the master ordered the wheel hard a-starboard, and signaled the engineer to give her full speed; and, when the vessel headed N. by W., she stranded on the beach about six miles northwest of Long Point light, in Lake Erie. We made every possible effort with the vessel's own power to release her, and failed. In this condition, the vessel pounded hard, and commenced leaking.”
The protest. further recites the efforts made to release the steamer, and that her deck cargo and a large part of that in the hull were necessarily jettisoned before she could be floated.
The defendant pleaded the general issue, which, under the practice of Michigan, in actions at common law, puts in issue every fact which it is necessary for the plaintiff to establish upon the trial. Both parties expressing their readiness to proceed with a trial, a jury was impaneled, and the plaintiff submitted its evidence in support of its claim upon the policy. Some evidence was adduced by the defendant condemning the navigation of the vessel just preceding the stranding, and also to the effect that, by reason of the condition of her rudder, the steamer was unseaworthy. It appeared in the evidence of the plaintiff that, a few minutes before the strand
ing, the master of the vessel, thinking that he saw land about a point or a point and a half on the port bow, changed the steamer's course to a point to the southward, but, learning from the soundings which were made by the second mate that he could get no bottom, concluded he was mistaken, and hauled her back to her course. The lead was again cast, and eight fathoms found; and this indicating to the master, as he says, that he was too close in shore, and noting a change in the appearance of the water, the steamer's wheel was put hard a-starboard, and the engine rung up to full speed, until, when heading about N. by W., on her swing, the steamer struck the beach. The master was asked whether it was snowing at the time he put his helm hard a-starboard. He replied: “Well, it was snowing in squalls, and then it would clear up, and snow again. I cannot say it was snowing at that instant. I didn't see land when I struck the beach.” The steamer stranded in ten feet of water. Her draft was twelve feet. The distance from the point where the soundings found eight fathoms to the place of stranding the master thought to be about a mile and a half, and the wheel was starboarded, he says, because he knew he "had no business in eight fathoms of water." He also stated that the coast line at the place of stranding is about E. and W.; that to have cleared the land by porting required him to head about E. by S., his regular course being E. N. E.; and that, if he had ported and swung 3 points, he would have cleared the land, if he did not fetch up; and that, in order to clear the land under her starboard wheel, he would have to swing 13 points. The wheel was starboarded instead of ported, to clear the land on the vessel's port side, because of the condition of the vessel's rudder stock, which the mate states "was twisted up in the Portage river some two trips before that, and we had it partly straightened out at Hancock or Houghton, and, when we got to Buffalo, we had a kind of a kink put in the tiller,—that is, instead of straightening the rudder, we crooked the tiller, and they didn't get that entirely straight; and for that reason, when we put the wheel a-starboard, she would go around a great deal quicker than she would by putting it a-port. We could put the tiller over, but the rudder would not get as far over as it would by going starboard. There was quite a little difference in her swing.”
It further appeared by the plaintiff's own witnesses that at the time of the stranding, and for some time prior thereto, the only persons upon the deck forward engaged in the navigation of the vessel were the master, the second mate, and the wheelsman, who was at his post at the wheel; that the second mate was engaged in heaving the lead up to about the time of the stranding or until the order “Hard a-starboard!" was given, under which the vessel was running when she struck. There was no person forward on duty as lookout. From about 3 o'clock a. m. to the time of the stranding, it had been snowing very hard, at times lighting up, and again coming in squalls so thickly that it was impossible at times to see more than the length of the steamer. The steamer struck about 6 o'clock a. m. while running at full speed under her hard a-starboard wheel, as stated, and when she had swung only about 3 points of the 13 which were necessary to take her clear of the land.
At the conclusion of the testimony, on the motion of defendant's counsel, the court directed a verdict for the defendant, on the ground that, under the evidence in the case, the stranding of the steamer and the damage consequent thereon were caused by perils excepted from the policy. Geo. Clinton and Brennan, Donelly & Vandermark, for plaintiff. F. H. Canfield and H. D. Goulder, for defendant.
SWAN, District Judge. Three grounds are assigned in plaintiff's motion for a new trial: (1) Because the court directed a verdict for the defendant; (2) because of newly-discovered evidence; (3) that the plaintiff was taken by surprise.
In considering this motion, it is to be borne in mind that it is an appeal to the discretion of the court, and not merely to its power, and the real question for determination is whether the party apply. ing for a new trial has been wronged by the misdirection of the court in matter of law, or, without fault or laches on his part, has been disabled from fully presenting his case, and injustice would be done if the verdict were allowed to stand. The first inquiry, therefore, is whether upon this record, which comprises all the evidence in the cause, the direction by the court of a verdict for the defendant was erroneous.
In Railroad Co. v. Converse, 139 U. S. 469, 11 Sup. Ct. 569, which is a late expression of the power of the court to direct a verdict, it is said:
"It is well settled that a court may withdraw a case from them (the jury] altogether, and direct a verdict for the plaintiff or the defendant, as the one or the other may be proper, where the evidence is undisputed or is of such conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it.”
This is but one of many explicit declarations of a doctrine which has obtained in that court certainly as early as the case of Parks v. Ross, 11 How. 362.
It is still more pointedly stated in North Pennsylvania R. Co. v. Commercial Nat. Bank of Chicago, 123 U. S. 727-733, 8 Sup. Ct. 266, where it is said:
"It would be an idle proceeding to submit the evidence to the jury when they could justly find only in one way.”
The reasons for the instruction in defendant's favor in the case at bar were founded upon the undisputed facts (1) that the steamer, at and prior to the stranding, was running in a thick blinding snowstorm at full speed; (2) that, under those conditions which demanded the highest vigilance and the most circumspect navigation, no lookout was maintained on the steamer; (3) that the stranding of the steamer was also contributed to, in large part, by the defective condition of her rudder, because of which the master put his wheel hard a-starboard, swinging the vessel towards the land, preferring the chances of keeping the vessel off the land while heading for it and swinging 13 points, to the more natural and prudent maneuver of heading out into the open lake, and bringing the steamer head to the wind under a hard a-port wheel, to effect which she had to swing only 3 points.
Upon the trial, defendant offered in evidence the act of the parliament of the dominion of Canada passed in the forty-third year of Queen Victoria (2d sess. 4th parliament, c. 29, p. 236), entitled “An act to make better provision respecting the navigation of Canadian waters.” Section 2, arts. 13, 24, and section 11 of that act provide as follows:
"Art. 13. Every ship, whether a sailing ship or a steam ship shall in a fog, mist or falling snow go at a moderate speed."
"Art. 24. Nothing in these rules shall exonerate any ship or the owner, or master or crew thereof, from the consequences of any neglect to keep a proper lookout or of the neglect of any precaution which may be required by the ordinary practice of seamen or by the special circumstances of the case."
“Sec. 11. Whenever foreign ships are within Canadian waters, the rules for preventing collision prescribed by this act and all provisions of this act relating to such rules or otherwise relating to collisions shall apply to such foreign ships and in any case arising in any court of justice in Canada, concerning matters happening within Canadian waters, foreign ships shall, so far as regards such rules and provisions, be treated as if they were British or Canadian ships.”
Article 13 of the Canadian statute is identical with article 13 of the act of congress entitled "An act to adopt the revised international regulations for preventing collisions at sea," approved March 3, 1885.
Article 24 of the Canadian statute is identical with article 24 of the act of 1885. By the first section of the act of 1885, the rules and regulations thereby enacted “shall be followed in the navigation of all public and private vessels of the United States upon the high seas and in all coast waters of the United States, excepting such as are otherwise provided for."
By section 2 of the same act it is provided that: "All laws and parts of laws inconsistent with the foregoing revised international rules and regulations for the navigation of all public and private vessels of the United States upon the high seas and in all coast waters of the United States are hereby repealed, except as to the navigation of such vessels within the harbors, lakes and inland waters of the United States.
Whether this statute controlled the navigation of the Great Lakes we need not decide. The reasons for observing upon those waters the precautions it enjoins are as strong as those which led to its adoption for ocean navigation.
By rule 21, c. 5, tit. 48, "Commerce and Navigation," Rev. St. U. S. (section 4233), it is enacted that "every steam vessel shall, when in a fog, go at a moderate speed."
Whether, therefore, the F. & P. M. No. 2, at the time of her stranding, was subject to the Canadian statute, because navigating in waters of the dominion, or whether she was governed by rule 21 of section 4233, Rev. St. U. S., or by articles 13 and 24 of section 1 of the act of March 3, 1885, is immaterial. The better opinion would seem to be that the steamer was under the law of her flag. U. S. v. Rodgers, 150 U. S. 249, 14 Sup. Ct. 109. The express language of the Canadian and the later American statute, and the evident spirit of rule 21, have all a common purpose; and although the latter does not expressly enjoin moderate speed in a “mist" or "falling snow," but speaks only of a “fog," there can be no doubt that it is as mandatory of moderate speed in “mist” or “falling snow," as the other statutes where these conditions of the atmosphere are expressly mentioned, since all are equally within the reason of rule 21.
As said in Jones v. Indemnity Co., 101 U.'S. 626:
"A thing may be within a statute but not within its letter, or within the letter and yet not within the statute. The intent of the lawmaker is the law."
The intent of these navigation acts is obviously the security of life and property, and it is essential to the attainment of that object that the word “fog," in rule 21, should be held a generic term, descriptive of all conditions of the atmosphere increasing the perils of navigation, and that its meaning should not be limited to the strictly technical definition of the word. It is the obscuration, not its particular natural cause, which necessitates moderate speed, and all other precautions.
In Richelieu & O. Nav. Co. v. Boston Marine Ins. Co., 136 U. S. 408, 422, 10 Sup. Ct. 934, the court, after citing the Canadian statutes in evidence in that case, which correspond exactly with those involved here, says:
"These statutory rules correspond with those revised by an order of council in England in August, 1879, and prescribed by congress (Rev. St. $ 4233; Act March 3, 1885; 23 Stat. 438), and recognized as international rules."
In that case the court held that a Canadian vessel navigating Canadian waters was bound to comply with the laws of Canada, and applied to her positive breach of the statute in maintaining full speed in a dense fog the settled rule in collision cases declared in the case of The Pennsylvania, 19 Wall. 125, and reiterated in Belden v. Chase, 150 U. S. 674, 14 Sup. Ct. 264, and The Martello, 153 U. S. 64, 74, 14 Sup. Ct. 723, viz.:
"That the vessel must show not only that probably her fault did not contribute to the disaster, but that it could nct have done so."
An additional reason for this ruling was the fact that perils occasioned by the want of ordinary care and skill or of unseaworthiness were excepted by the policy. In that case, as in this, the rule of liability was held to attach where the steamer was stranded while thus violating the statute by her excessive speed and other breaches of the municipal law, and the owners of the vessel sought to recover from her insurers for the loss occasioned by stranding, under a pol. icy almost exactly alike in its conditions to that sued upon here. The same reasoning which enforced the Canadian statute in that case, and held the steamer subject to the law of her flag, is equally cogent here. If the F. & P. M. No. 2, because of her stranding in Canadian waters, was subject to the statute of Canada, her breach of those statutes subjects the plaintiff to the burden of proving conclusively that her transgression in no way contributed to the re