sult. If, on the other hand, the steamer is, to be regarded as controlled by the law of her flag while navigating, by right of treaty between this country and Great Britain, the waters of the Great Lakes, whether on one side or the other of the international boundary line, the same rule of evidence requires the plaintiff to show that the breach of the statute, rule 21 of section 4233, or the act of 1885, if the latter controlled lake navigation, could have had no part in producing the disaster. While, as a rule, the cause of the stranding would be a question of fact for the jury, under the stat utes enjoining moderate speed, and requiring a lookout, and the interpretation given them by the courts, there arises a preliminary question, purely of law, namely, whether, under the evidence in the cause, the jury would be warranted in finding that neither the speed of the vessel nor the absence of a lookout contributed to the stranding. If, for example, this question of fact had been submitted to the jury, and their verdict had negatived all connection between the violation of the statutes and the stranding of the vessel, would the evidence in the cause sustain this conclusion as beyond doubt? If the evidence had not that probative force, it would manifestly be the duty of the court to withdraw the case from the consideration of the jury, and direct a verdict for the defendant. There can be but one view of the evidence in this cause. It not only fails to dissociate the forbidden act and its consequences, but it establishes incontestably the relation of cause and effect between the speed and the stranding of the steamer, in that it shows that while running at her ordinary speed of 10 miles per hour in heavy snow squalls, in the general direction of the land, which her officers had reason to believe was close aboard on the port side, in darkness, with a heavy sea and wind following her, she struck hard, and remained fast at the place of grounding, in spite of every possible effort to release her; that when she took her departure from her regular course, starboarded her helm, and headed for the land, in an attempt to clear it by swinging 13 points, the distance from the shore was unknown to her officers, and the change of course itself was prompted and made necessary by the admitted fact that the soundings had demonstrated to the master that he was coming in too close to the shore, and when he admits that he "knew he had no business in 8 fathoms of water." Ordinary care and skill in navigation, independent of the statute, imperatively required, under such conditions, that the vessel's speed should be reduced to the lowest point consistent with the preservation of her steerage way. The Kestrel, 6 Prob. Div. 182. It is sought to justify the starboarding of the wheel and the speed of the steamer by the fact that her rudder stock was so twisted that it was safer to starboard than to port, because the rudder could not be thrown hard over under a hard a-port wheel; that the increase of speed was seaman-like, and justified by the exigency, because it aided the swing of the steamer in her effort to keep off from the land and head into the wind. Granting that the increase of speed was good seamanship in the emergency, the fact remains that the necessity for it was created in part, at least, by the condition of the rudder, which precluded taking the proper and natural course of heading away from the shore, and getting into deep water, and drove the master to the fatal experiment of running towards the danger to be avoided, and this, too, in a thick blinding snowstorm and the darkness of an early November morning. It also appears indubitably that no lookout was maintained on the steamer during this time, but that the person who ordinarily performed the duties of that post was engaged in heaving the lead, giving no attention to his proper duties. In extenuation of this, it is argued that the severity of the storm was such as to make it impossible for a lookout to be of any service, and that, had one been at his proper station, he would have been unable to descry the land, and hence no fault can be imputed to the steamer for his absence. There is no precaution the observance of which the courts of this country and of England have more rigorously enforced than the duty of maintaining a vigilant and competent lookout, especially under conditions of weather such as prevailed before and at the time of this stranding. These were such as had notified the master of the vessel of the necessity for the greatest care in the navigation of the vessel. Before he starboarded his wheel, and headed for the shore, he had changed his course a point to the southward, because of the indications that, instead of being five miles away from the land at that point, he was much nearer; how much nearer he did not know. All landmarks were obscured. A succession of snow squalls shut off his view ahead. The weather cleared occasionally, and again thickened. The argument that in these conditions a lookout would have been of no service proves too much, and would logically disprove the necessity of a lookout at any time. The darker the night and the thicker the weather, the greater is the necessity for using every precaution to avert disaster; and the necessity of hav ing a competent person on watch, scrutinizing the vicinity with ceaseless watchfulness in search of danger, has been recognized long anterior to the enactment of the statutes of England and America, which, by necessary implication, assume that a lookout is one of the "ordinary precautions" to insure safe navigation. In Mars. Mar. Coll. p. 339, it is said: "Many years before the rule of the road at sea was regulated by act of parliament, the practice of seamen had established rules to enable approaching ships to keep clear of each other. These rules, which are the foundation of those now in force, were well established by custom, and formed part of the general maritime law administered by the admiralty courts." At page 496 it is said: "The law as to what is proper care and skill as to navigation, and which are proper precautions required by the ordinary practice of seamen, is illustrated by numerous decisions: First, as to lookout: If a ship is proved to have been negligent in not keeping a proper lookout, she will be answerable for all the reasonable consequences of her negligence. The lookout must be vigilant and sufficient, according to the exigencies of the case. The denser the fog and the worse the weather, the greater the cause for vigilance. A ship cannot be heard to say that a lookout was of no use, because the weather was so thick that another ship could not have been seen until actually in collision." This text is, in substance, the opinion of Dr. Lushington in The Mellona, 3 W. Rob. Adm. 7, 13. See, also, The City of Washington, 92 U. S. 31. The case of The Ann (decided in 1691) Mars. Adm. Cas. 263, held the necessity of a lookout long before there was any legislation requiring that precaution. In The Farragut, 10 Wall. 334, Mr. Justice Bradley says: * * * "It is undoubtedly true that the absence of a special lookout would in many cases, perhaps in most cases, be regarded as evidence of great negligence." He quotes the provisions of the act of congress of April 29, 1864, which declares that "nothing in the rules shall exonerate any ship or the owner or master or crew thereof from the consequences of any neglect to keep a proper lookout," etc., and adds: "Thus intimating that a proper lookout is one of the ordinary precautions which a careful navigation involves." This was the view of the court in the case of Richelieu & O. Nav. Co. v. Boston Marine Ins. Co., 136 U. S. 408, 10 Sup. Ct. 934, where the case of The Farragut is approved. Decided cases go still further in enforcing compliance with the legal duty to take all the precautions for the safety of life and property which the ordinary practice of seamen requires. In the case of The Colorado, 91 U. S. 692, 698, it appeared that, while running in a fog at night on Lake Huron, the propeller Colorado came into collision with and sunk a sailing vessel. says: The court "Enough appears to show conclusively that there was but one lookout, and no other seaman to assist the wheelsman in any emergency which might arise, though the master, as well as the mate, was fully apprised that the fog was unusually dense, and both knew full well that the course of the propeller was in the much frequented pathway of commerce. Such a watch, consisting only of the mate, one wheelsman, and one lookout, could hardly be deemed sufficient for such a large propeller, even in a clear night; and, if not, it certainly cannot be regarded as one equal to the emergencies likely to arise in a dark night, when the fog was as dense as it was on the night of the collision. Ocean steamers, as remarked by this court on a former occasion, usually have, in addition to the officer on the deck, two lookouts, who are generally stationed, one on the port and one on the starboard side of the vessel, as far forward as possible. During the time they are charged with that service, they have no other duties to perform; and no reason is presented why any less precaution should be taken by first-class steamers on the lakes. Their speed is quite as great, and the navigation is no less exposed to the danger arising from the prevalence of mist and fog, or from the ordinary darkness of the night; and the owners of vessels navigating on those waters are under the same obligations to provide for the safety and security of life and property as attach to those who are engaged in navigating the seas. Chamberlain v. Ward, 21 How. 571." This case emphasizes, also, the necessity of having the lookout properly stationed and vigilant in the performance of his duty. It is idle to multiply citations to show the importance which the courts have uniformly attached to this requirement, both for the prevention of collision with other vessels, and to notify the proximity of the land and all dangers of navigation. It is, as has been said, also recognized in the statute of March 3, 1885, above quoted. By paragraph 8 of rule 5 in Supervisors' Rules and Regulations, it is provided that: "All passenger and freight steamers shall, in addition to the regular pilot on watch, have one of the crew also on watch in or near the pilot house, and this rule applies to all steamers navigating in the nighttime." It is said that there is no authority in the statute for the adoption of such a rule, except section 4463, Rev. St., which provides that no steamer carrying passengers shall depart from any port unless she shall have in her service a full complement of licensed officers and full crew, sufficient at all times to manage the vessel, including the proper number of watchmen. This, it is said, is not a requirement for the maintenance of lookouts. By section 4405, Rev. St. U. S., the board of supervising inspectors are required to “establish all necessary regulations required to carry out in the most effective manner the provisions of this title [Regulation of Steam Vessels], and such regulations, when approved by the secretary of the treasury, shall have the force of law." Whether the word "watchmen," in section 4463, supra, and in section 4477, Rev. St., should be interpreted as requiring the maintenance of lookouts for external dangers, or as referring merely to employés whose duties are limited to the care of the decks and cabins, it is not necessary to decide. The duty imposed by section 4463 of carrying "a full crew, sufficient at all times to manage the vessel," is a provision of title 52, for which, by section 4405, the supervising inspectors may establish regulations, and their regulations, when approved by the secretary of the treasury, "have the force of law." The statute does not prescribe the number of the crew, or designate the duties or station of each member, otherwise than by the requirement "a full crew, and sufficient at all times to manage the vessel"; that is, to insure her safe navigation. This means both that the crew shall be sufficient in number and also of competent skill and experience to perform their duty intelligently, under all circumstances and in all emergencies. The Washington, 3 Blatchf. 276, Fed. Cas. No. 17,220; Pars. Mar. Ins. p. 374. This is declaratory and in affirmance of the ancient law of the sea. Emerig. Ins. 300; Roc. Nav. note 62. The "ordinary practice of seamen" and careful navigation have from time immemorial exacted a competent lookout as a safeguard against collisions and other dangers of navigation, and this requirement of usage and experience may be termed a part of the common law of the sea. In every well-ordered ship each member of the crew must have his post and duties. A regulation which designates the station of so important a member of the watch as the lookout, and requires one of the crew to be assigned to that duty, is calculated "to carry out in the most effective manner" the provisions of section 4463; and for that reason paragraph 8 of rule 5 in Supervising Inspectors' Rules and Regulations harmonizes with the general object of the statute, and is authorized by Rev. St. § 4405. Independent, however, of the express terms of the law, and the rules and their necessary implications, evinced in the various statutory provisions cited, the obligation to maintain this indispensable precaution against maritime perils is so strongly entrenched in the usage and experience of navigators that it is well said upon the argument that, "if every statute in which the word 'lookout' appears should be repealed, the legal duty to maintain a lookout would still exist." This is the ground on which the case of The Ariadne, 13 Wall. 475-479, was decided. The court says: * "The duty of the lookout is of the highest importance. Upon nothing else does the safety of those concerned so much depend. A moment's negligence on his part may involve the loss of his vessel and the lives of all on board. In the performance of this duty the law requires indefatigable care and sleepless vigilance. The rigor of the requirement rises according to the power and speed of the vessel in question. * * * It is the duty of all courts charged with the administration of this branch of our jurisprudence to give it the fullest effect whenever the circumstances are such as to call for its application. Every doubt as to the performance of the duty and the effect of nonperformance should be resolved against the vessel sought to be inculpated, until she vindicates herself by testimony conclusive to the contrary." It is safe to say that nearly every decision which has condemned a vessel for the want of a lookout is rested on the inherent recklessness of such navigation and its agency, as the sole or a concurring cause of the disaster, and not upon the transgression of the statute or of the regulations it authorizes, and the rule applies as well to stranding as collision. Richelieu & O. Nav. Co. v. Boston Marine Ins. Co., 26 Fed. 596, 602; The Kestrel, 6 Prob. Div. 182. The rule applied to the evidence in this cause in directing the verdict for defendant was the inevitable corollary from the evidence whether the navigation of the vessel and the sufficiency of her crew be judged from the standpoint of the navigation laws, the rule of the supervising inspectors, or of the practice of seamen and the unwritten maritime code. The contract of insurance equally excludes recovery. The policy sued upon is not, to use Malloy's quaint phrase, "an insurance against heaven and earth," but excepts, inter alia, from the usual risks, "all losses," etc.. "consequent upon, or arising from, or caused by, incompetency of the master, or insufficiency of the crew, want of ordinary care and skill in navigation, inherent defects, and all other unseaworthiness, and the violation of any law, ordinance, or regulation to which the vessel may be subject." In the view we take of the evidence, it is scarcely too much to say that each and all of the excepted perils were factors in causing the disaster. The unexplained divergence of five miles from the proper course which led that distance from the place of stranding, the defective condition of the rudder, the immoderate speed of the steamer when in known and in constantly increasing proximity to the shore, and the failure to provide a sufficient watch for the supreme peril of her course and surroundings, remove all doubt as to the cause of the disaster, and exempt the insurer under this contract from its consequences. As in Richelieu & O. Nav. Co. v. Boston Marine Ins. Co., 136 U. S. 408, 426, 10 Sup. Ct. 934, so here, "the exceptions in this policy protect the insurer against the excepted perils as a shipper is protected under a bill of lading from * * * * |