Henry Schultz, Respondent, vs. The Pacific Insurance Co., Appellant, 14 Fla. 73

WESTCOTT, J., delivered the opinion of the .court. ■ The case presented by this record, with the exception of some objections to the law, as given to the jury by the court, and another to a matter arising upon the record, is a motion' for a new trial based upon a consideration of the entire evidence in the case.- The position is taken that an appeal 'does not lié from ah order of the Circuit Court, refusing to set aside a verdict and grant a new trial, and that the exercise of such discretion cannot be here reviewed.

It is insisted that' granting a new trial is a matter within the discretion of the Circuit Court, not of right in the party; and for that reason is not an intermediate order involving the merits and necessarily affecting the right of the party within the meaning of subdivision one of

section ten of the Code' In disposing of this question, we deem it unnecessary té' determine.whether such an order is of the character mentioned in subdivision one, in view of our conclusion' that' even if it is not such an order, yet the right of the party to have such an order reviewed is given by the first

section ©&'

chapter 521 of the laws, and the effect of the provisions off the Code is not to destroy that right but simply to regulate-the practice in its exercise. We reach this conclusion by &. consideration of all of the statutes having reference to the - subject matter. We give them a consistent construction,., and one which we conceive carries out the intention of the Legislature in enacting the Code. ' Upon an appeal from a final judgment, the act of 1.85S',..

Chapter 521, gives the p.arty the right to have such exerciseóf discretion by the Circuit Court reviewed by this court. The last clause of

section 210 of the Code prescribes the-method by which the decision of the court upon a motion:-, for a new trial is to be brought to this court upon an appeal. The Code therefore in its letter recognizes the existence off such right. The repealing clause of the Code repeals only-such statutory provisions as are inconsistent with it, and secures all rights of action given or secured by existing laws.. The intention of the Legislature in the enactment of the - .Code was to abolish the distinction between lega! and equl • table remedies, and to have uniform proceedings in all cases.-.

It was to regulate the practice but not to destroy the right.. It was-the right of the party anterior to the Code to have-such ah order reviewed, and the effect of that

section of the-Code authorizing appeals in certain cases is not to destroy right to appeal in other cases, or to limit the operation of an appeal to the cases enumerated in that section. A statute-regulating the practice and to some extent the appellate jurisdiction of the. court, which itself prescribes the practica • in the matter of appeals authorized by antecedent laws,, should not be held to repeal those laws, where the genera® purpose of the statute is not to destroy the right, but simply, to regulate the practice in such cases.

In this case there has been one trial by the court, whick resulted favorably to the defendant; one mistrial by a jury,. and this the third trial by a jury, resulting favorably to the ■piaintifF. ,, The mistrial should not benefit either party, and' the find-:i®g of the court for the defendant upon the facts, followed ■by a finding for the plaintiff by the jury upon the facts, enables us to consider the case as if it was the first trial ; «either party we think can claim any advantage by, these ¿proceedings.

The verdict of the jury here is founded on the evidence -of facts, complicated and contradictory, which required an .investigation into the character and credit of the witnesses,, whose testimony it was necessary to compare and weigh. To do this is the proper function of a jury. 1 Brevard, 150; 2 Stranges, 1,142; 2 Burr, 665; 1 Wils., 22; 1 Burr, 396, 609; Cowp., 37; 2 Wils., 249; 3 Wils., 47.

While it is true that this is the proper function and province of the jury, it is at the same time true that'in cases where there is conflict in. the testimony, it is within the province and power of the court to set aside a verdict which •does not reach a substantially just conclusion in cases where the conflicts are of such character and the circumstances of such nature as to give just ground for the belief that the Jury acted through prejudice, passion, mistake or any other -cause which should not properly control them. This power exists in the court.

In exercising it the court does not en•croacli upon the province of the jury, for the reason that it does not conclusively settle facts in the form of a verdict, but only gives another jury the opportunity of so doing, •and of correcting what appears to be a mistake. If,this is •not properly within the power of the court, then the result is that the first twelve men that happen to constitute a jury in a given case are by law the final arbiters of the facts in that case. There is no such principle of law. . This is a conservative and justly prized power of the court; like all powers it may be abused.

It is much better, however, that exceptional eases of its improper exercise should be endured than that the security which it affords should be withdrawn.

The rule which should govern a court in the exercise of this power should be a fair view of the justice of the particular case, the character of the conflicting testimony, and the surrounding circumstances, rather than an extraordinary degree of respect for the maxim ad questionem faoti non respondent judioes ad questionem legis non respondent jwratores — and wherever it appears to the court that there is difficulty in reconciling the verdict with the justice of the case, and the manifest weight of evidence, there the court should not, from a too great respect for this wise and venerable maxim, withhold its power.

This is the rule which should govern the judge of the court presiding: at the trial, who has the same opportunity as the jury to observe what occurs in the trial. In all cases of appeal the presumption is that he exercised this discretion properly, and the case is not presented to this court as it was to him, because this additional presumption is added to the verdict. Where he has. declined to disturb the verdict of the jury, a very clear and strong case must be made out before this court would feel justified in reversing his action.

It should be a very plain case to justify an appellate court in setting-aside this concurrent conclusion of both court and jury, upon the ground that their action was contrary to the evidence or weight of evidence. With this statement of the rule which should govern us in the consideration of cases involving conflicts in testimony where a new trial has been refused, we proceed to apply it to such, portions of this testimony as are contradictory, and to determine wdiat is the condition of this case in that respect.

There are manifest conflicts in the testimony of the mate, and that of Grant the cook, and the two seamen,. .Brown and Hitchings.

The mate testifies that there were tén or fifteen hours of dark and cloudy weather on the 20th, during which the wind was blowing fresh, and there was a. heavy sea, the ship laboring very heavy; that during like-weather on the 21st the ship was found to be leaking, and that there was about six feet of water in the‘hold; that sixteen pieces of heavy timber were thrown overboard, and that the men were kept at the pumps at one time three hours, or during their watch, half the crew; that the bark became free of water on the morning of the 23d, after which,' and up to the time of her loss, she made about eight or tea inches of water in twenty-four hours.

Grant, the cook, testifies that the depth of water in the' bark was seven feet on the morning of the 21st. In one place he says that after the pumps were first tried, the men were kept constantly at the pumps night and day. In another place he says that after throwing over a portion of the deck load the pumps sucked; that there was an intermission of twelve hours, when the water had gained five or six inches. He says, also, that the water got. to be eight feet, and that the weather was fine and the wind fair up to four o’clock on the 26th.

Brown, one of the seamen, testifies 'that upon trying the pumps first there was two feet water in the pump-well; that on the second day out, the 21st, there was three feet of water in the pump-well.

In one place he says that this was preceded by a squall and rain, and in another that from the time he left Pensacola to the afternoon of the 25th, the weather “ was variable and light, with rain; ” that the bark required to be pumped every fifteen minutes; that it took three-fourths of an hour spells to free her after' standing fifteen minutes; that the-bark was at times during the voyage free from water, when all the ship’s company was employed and the weather was light; that after sucking the pumps, in about ten minutes therp would be sixteen inches of water in the pump-well, and it would take four men three-fourths of an hour to suck the pumps after standing ten minutes ; that the bark had to bp pumped about every hour in the twenty-four, and that whep the crew kept steady at the pumps, and the wind was light aixl the sea- smooth, they would suck about two or three times'in-twerity-four’hours, and that she was not seaworthy.

Hitckings, one of the seamen,'testifies that when twenty-four hours out the bark sprung a leak.

In one place he states 'five feet of water was found in the pump-well at this time, in another that six feet was foundthat after this, and up to the time she got ashore, the pump-well averaged eight feet; that on the third day out the master called the crew, himself among the number, aft, and asked what was best to do, when he replied that they ought to return for repairs • that the captain said, we will throw the deck load overboard, and the crew must not be alarmed, as he was going to hug the land, and that on Friday, the sixth day out, half of the deck load was thrown overboard.

This witness makes six feet water in the pump-well on Monday at eight or ten ■o’clock. This is inconsistent with the testimony of every other witness. lie also has the jettison of the timber to occur when six days out, when it happened on the third day out. He makes an average of eight feet water in the hold, when the testimony of Grant "and* Brown -is that the men were constantly at the pumps. If what they say is true, there could be no such average. In this conflict the jury believed the mate and disbelieved the seamen, and we think the reas'on for .their so doing is found in the record.

The witnesses, Grant and Brown, on the 30th December, 1869, when all of the facts connected with this matter must have been fresh in their minds, joined in the protest of the captain and then swore “that on the 21st day of December, the bark suddenly made, more water than usual, and at one time during that day had five feet of water in her; that the leak was supposed to be somewhere in her topsides, and therefore sixteen pieces of heavy timber were thrown over from deck, after which the bark was freed from water, the Leaked ceased, and the ship was dry ; tha,t when they left Pensacola the bark was tight, staunch and strong; ” that the loss was owing immediately to adverse winds, heavy, squally and foggy weather, and a strong, adverse current,' which sometimes sets in across the Florida reefs from the Gulf stream, and was not the result of neglect or failure to perform their duty by either officers or crew.

It would certainly be improper either for this or the Circuit Court to set aside a verdict of a jury by giving credence to anything sworn to by persons thus plainly guilty of false swearing. What they swear to in this protest, and what they swear to in this trial, is entirely inconsistent,'and-for this reason the jury was entirely justified in giving no weight to their testimony in any particular. This- leaves the conflict in the testimony to the statements of the máte and the seaman Hitchings.

The only inconsistency wo can discover in the testimony of the mate is in respect to the-weather on the night of the 26th, and about that there is sufficient other testimony to have enabled the jury to form a conclusion. In respect to'the testimony of Hitchings, an examination of it will disclose that he makes six feet of water in the puinpwell on Monday at eight or ten o’clock, which is inconsistent with the testimony of every other witness. He has the jettison of the timber to occur when: six days out,; it happened on the third.

He makes an average- of eight feet water in the hold during the voyage, when, if what Grant -and Brown say (that the men were constantly at the pumps, •etc.,) is true, there could not have been such an average. Upon most material questions the testimony pf the mate is corroborated by the affidavit of'James Davis, the boatswain, who joined in the protest of .the Captaim. - This is a circumstance which the jury had a right to consider. It was necessary in this case to compare and weigh the .testimony of these witnesses.

The Circuit Court could not say, under these circumstances, that the jury erred in giving credit to the mate thus corroborated by the boatswain, rather than to two witnesses who had sworn falsely with reference to the incidents of this identical voyage, and to one whose statements bore internal evidence, of incorrectness, in several particulars.

Even if the testimony of the one witness had been entirely consistent, we cannot see that such a case would be presented as would have required the court below to discredit the action of the jury in believing the mate rather than him, and certainly no case is presented here requiring us to set aside the action of both court and jury. What we determine in this case is this precise proposition.

Where there is a conflict between one witness for the plaintiff and three for the defendant, and the record discloses that two of the witnesses for the defendant had sworn falsely in the precise matter being investigated, and that many of the circumstances which appeared to be true were inconsistent with material facts to which the third swore, and the testimony of the one witness for the plaintiff is unimpeached in any essential particular, and is corroborated by the affidavit of another person, the court should not grant a new trial in case of a verdict for the plaintiff, unless the case presented by the testimony of the one witness for the plaintiff and the other testimony entitled to consideration is such as authorizes such action.

This, therefore, is the inquiry, which disposes of the matter of a new trial, so far as it involves a consideration of the facts of the case. .The first point made by the defendant which we consider is, that in an insurance upon the freight the vessel must be seaworthy for the destined voyage when she sailed, that the evidence discloses that such was not the case, that it is established that this vessel, shortly after sailing, and without encountering any stress of weather, accident or any peril insured against, was found in a condition from which a presumption arises that she was unseaworthy for the voyage when she sailed, that this presumption is not rebutted .by the plaintiff, and that for this reason the verdict should have been for the defendant.

In what condition was this ship at the time refered to, and what was the cause of such condition, is, therefore, the-first question which arises upon the testimony. The testimony of the mate, so far as it .discloses these facts, must make the case to be considered. According to his testimony, the bark left Pensacola on the morning of the 19th of’ December ; she did not leak before she crossed the bar; she crossed the bar at eight o’clock. The weather continued fair until next day, the 20th. The bark commenced to leak on the 21st in the morning.

On the morning of the 21st he sounded the pumps, and found about six feet water in heir hold. On the 21st the wind was blowing fresh, weather dark and cloudy, the vessel laboring very heavy; cannot give the exact time the weather described continued — it was between ten and fifteen hours — this was on the 20th. The weather was stated in the log. On the morning of the 21sfi the crew were called aft by the Captain. He stated the condition of the vessel, and their answer was that they looked to the Captain as their father, and expected he would d® the best for all concerned.

The men were kept at the prunes at one time three hours, or during their watch, half of the crew. A part of the deck load, sixteen pieces of heavy timber, was thrown overboard. She became free of water on the* 23d in the morning. After the 23d, and up to the time of the loss, she made about eight or ten inches water in twenty-four hours. This witness says nothing as to the character of the weather on the 22d, 23d, and 24th. On the 25th hs says there was a fresh breeze. At 12 M. on the 26th he saya the weather was fair. At four o’clock there was no breeze, and had no steerage way on the bark from four to six.

The weather continued calm until near six o’clock. From six t© eight he was below, but the weather was rainy and squally. The weather from eight until she went ashore was rainy auJ. stormy. About ten o’clock the sea was running high,-the squalls came on often ; they were very heavy, sometimes had to lower the tops down and clew everything up. The niglit was dark, the sea at the time we went aground was very heavy. Henry, Eilor, of Key West, examined for plaintiff, says he has been on- board the bark since she was wrecked ; her top works were staunch, strong and solid. Her bottom was out.

In speaking of the weather on the night of the 26th, he says it was a heavy gale of wind; a heavy, dark night, raining heavily; wind variable and squally. James Peat, for defendant, says the wind on that night blew heavily in squalls. Courtland P. "Williams, for defendant, says: when the bark ran- ashore the wind was very fresh and squally, a heavy sea heaving in. In the squalls it blew very heavy. Graham J. Lister, for defendant, says : the wind, on the night of the 26th December, was blowing heavy, with violent squalls, a heavy sea, and the night very dark. F.

Filor says the weather was stormy, and, wrecking vessels were out. Considerable repairs were made on the ship while in port; and the artizans employed in Pensacola in making, these re: pairs on the bark swear that, in their opinion, she was seaworthy for the voyage ; that her timbers, so far as they 'examined them, and to the extent they saw them, were strong and solid. They say, however, upon cross examination, that they made no examination below the waterline.

An expert swears that he has noticed the drainage from sticks of timber such as were put on the bark, and that he has seen seven feet of water in vessels the size of Schultz, which had slashed into the bow' port and from drainage ; and that the timbei', with which the bark appeared to be loaded, appeared to have been in the water some time. This, we think, is substantially the testimony in this record, which relates to the subject of seaworthiness, embracing her appearance in port, and extending from- the day the bark sailed to the night of her loss. It does not include any statement of Brown and Grant.

Do these facts make such a clear case of nnseaworthiness that we should reverse the action of the judge of the court below, in refusing to set aside a verdict of the jury finding the contrary ? We have before stated the rule which we think should have controlled the exercise of his discretion in this respect, and the presumption is that he exercised his discretion properly. The question of seaworthiness is one of fact, the consideration of which is peculiarly within the province of the jury; the effect of a want of it upon a contract of insurance is one of law.

Therefore, in stating what we think is a rule of natural presumption as to the fact of seaworthiness, and a rule which should govern a jury in reaching a conclusion upon the subject, we do not wish to be understood as stating a rule of law, except in so far as the law enforces all natural presumptions, and authorizes a court to set aside verdicts contrary to them. The fact here, from which a presumption of unseaworthiness at the time the bark sailed- was sought to be generated in the minds of the jury, was the leaky condition of the ship about fifty hours after the vessel sailed.

The condition was occasioned by a leak. The simple springing a leak in ordinary weather, shortly after sailing, independent of its effects and character, should not create a presumption of nnseaworthiness when the ship sailed.

In all cases, however, where the proximate cause of a leak discovered shortly after sailing, and which results in a loss of the ship, or renders her incapable of proceeding on her voyagq, cannot be traced to a peril insured against, or ascribed to stress of weather or some accident on the voyage, then g. presumption of unseaworthiness, when the vessel sailed, should be generated in the minds of the jury, and unless that natural presumption is overcome by the assured, the insurer should be discharged.

In order to create this presumption, the burden of proof of all these facts lies upon the insurer, for in the absence of testimony the ship is presumed to be seaworthy.

We do not intend by thus stating what should be a natural presumption in a case where-the leak resulted in a loss of the ship, or made it necessary for her to discontinue the voyage, to say that it is not possible for the evidence to disclose such a state and condition of the ship shortly after sailing as would justify and require the jury to conclude that there was unseaworthiness when she sailed, although the condition thus disclosed was not the proximate cause either ©f a loss of the ship or of her failure to make the intended voyage.

The question is as to the fact: Does the evidence disclose such facts as establish the conclusion that the vessel when, she sailed was not in a condition to encounter the ordinary dangers of the voyage, the dangers not insured against ? The bark not having been prevented from pursuing her voyage, and not having been lost through this leak, as the proximate cause of the disaster, those ca'ses which decide feat from such circumstances a presumption of unseaworthiaess arises, are not strictly applicable to this case.

It may lie admitted that the effect of such facts is as defendant contends, and it does not affect this case. The question here is : ’What is the effect of the facts which the jury had a right to infer, or which the testimony tended to prove ? Yiewed in .tins light, what was the character of the leak in this case? We have no subsequent examination disclosing its locality in the ship. We do not know the exact time feat it commenced. The bark did notleak before she crossed fee bar; she crossed the bar about nine o’clock Sunday morning, and the leak was not discovered until Tuesday morning.

We do not know the proportion in which the volume of water'going into the ship ■ increased or decreased-' during this period. When the leak was discovered there was six feet water,in the vessel; she could have been talking in this water from Sunday at eight or nine .o’clock until Tuesday morning, say forty hours; during this time fee leakage, which some experts declare often happens in the-best of vessels at the commencement of the voyage, and’ that which was incident to the drainage of the cargo — timber saturated with water — happened.

In addition to this, and before the leak is discovered, the vessel encounters fifteen hours of weather, described by one witness as weather during which the wind was blowing fresh, the weather dark and cloudy, with a heavy sea, causing the vessel to labor-very heavily ; and by another — and a witness for the. defendant — as a squall and wind. When the leak is discovered, the men are called to the pumps; at one time, on Tuesday, they are kept at the pumps three hours, or during their watch. In addition to this, sixteen pieces of heavy timber are thrown overboard.

On the next day she becomes free of water, and up to the time of her loss, five days thereafter, she made about eight or ten inches -water in twenty-foiir hours.

During a portion of the last twenty-four hours.of the voyage she encountered weather described by one witness for the plaintiff as a heavy gale of wind, by one of defendant’s witnesses, as “squally weather, blowing heavily in the squalls” ; by another, as “ fresh and squally, a heavy •sea heaving in, the wind about a reefed topsail breeze for a ¡ship going to windward, in the squalls blowing very heavily.’-’ In addition to the use of the pumps, the evidence discloses that sixteen pieces of heavy timber were thrown overboard -on Tuesday, the 21st.

This may be thought to be evidence of an overloading of the ship, by which we mean a load beyond her tonnage or capacity ; but here we are met by the direct and positive testimony of the stevedore, who supervised the loading, that she was not overloaded, and that in this respect everything was proper. Our attention in this’ •connection has been called to the remark of Mr. Justice Radcliff, in Abbott vs.

Broome, 1 Caines, 302, to the effect that “ a vessel is not seaworthy unless she be in a condition to early a full cargo.” The question there was not a general question of seaworthiness, and the remark should be limitéd to the particular subject under consideration, “ the question being whether the vessel was seaworthy for the purpose of carrying to New York a cargo brought from India.

It is a compliance, with, this warranty if the ship is in a suitable condition to carry the' cargo put on board or intended to be' so, it being sufficient if the vessel is fit for the service in-which she is employed.” 1 Phillips on Ins., 114. We have searched in vain to find a case of this character, a serious leak remedied by the action of the pumps and by a jettison of a small portion of the cargo.

We are clear that a leak, which is remedied by the action, of the pumps, is not sufficient to rebut the ordinary presumption of seaworthiness in a case where all the direct and positive testimony is to-the effect that the vessel was seaworthy. In this case repairs were made while in port; all the artisans employed on the ship testify that her timbers, to the extent of their examination, were sound and solid.

It is. true that no repairs were made below the water-line, and they are unable to speak as to the condition of her garboard streaks and like matters; but if, in a general examination of her upper works and of the timbers immediately connected with the repairs made, they find them firm and solid, the conclusion that those below the water-line were in like condition cannot be called an inference in no degree sanctioned by the testimony-.- In addition to this is the testimony of one witness, who visited her after the -wreck, to the effect that her upper works were sound and solid. As to the matter of the jettison.

A ship having on board nothing more than a cargo corresponding to her capacity, should be able to encounter ordinary weather without a jettison of her cargo — certainly without a jettison of any considerable portion of it. Seaworthiness implies an ability and sufficiency to carry the intended cargo to the port of destination. If this is true where the insurance is as fo the ship, it should unquestionably be true as to freight to be earned, by carrying the cargo, which is this case.

A necessary jettison shortly after sailing with a proper load, without encountering any peril insured against, is a fact tending to generate a presumption of unseaworthiness when the ship sailed. We have seen that no peril insured against was encountered. What was the jettison here ? It was sixteen pieces of heavy timber. The bill of lading shows the cargo to have consisted of-1208 pieces of timber, The term “ heavy” is very indefinite, and the only facts disclosed by which any comparison can be made is the number of pieces throw» overboard and the number constituting the entire cargo.

Hi' it be considered that they were of the average weight, well ave a jettison of less than one-seventieth of the cargo; but there is not a'particlé of evidence by which we can estimate accurately the weight of the pieces jettisoned or of -any of the other pieces, and we cannot say with any reasonable certainty what its weight was.

Even if the weight was-given, in the absence of testimony of an expert, any state-: ment by the court as to its effect in elevating the topside of the ship, or its effect upon the leak, would be a judicial assumption of knowledge in matters of nautical science. . ■ Was this a necessary jettison ? for an unnecessary jettison-cannot be evidence of an incapacity to carry the cargo'o» board.

We are unable to determine this question with such: satisfaction and clearness as should exist to justify us in controlling the discretion of 'the court below in the matter of granting a new trial.- The evidence is wanting in that certainty which would enable even an expert to form or' express an opinion. Could he determine with any reasonable certainty .that a jettison was necessary, without having some definite idea as to the amount jettisoned, in a case where the leak is remedied, not by the jettison alone, but by it and the combined action of the pumps ?

The capacity of the pumps, a definite knowledge of the history of the decrease-of the leak, the weight of the cargo jettisoned, and many-other matters, would constitute elements in the formation of any clear judgment upon, this subject.

These facts are not'disclosed, and the burden of proof is upon, the defendant as to all of them. lie must prove the necessity of the jettison, or it must appear from plaintiff’s evidence; here two of-his witnesses are entitled to no belief, at, all, and the other does not detail the facts, and to the extent; that he relates ■facts, and his statement is in conflict with.that, of the mate, we cannot say to the jury, under the circumstances, that ■they should have believed him rather than the mate. Here we have one effect produced by two causes, either cause being oí a nature to produce the effect.

In a-case where the evidence as to one of the causes of the jettison is of the character here indicated, can we- say with reasonable certainty, against a verdict of a jury and the action of the court, that the existence of this cause was necessary to produce the effect ? "While we cannot say that we are entirely satisfied with the verdict, yet we can not set it aside for this cause, under these circumstances. The plaintiff in this case was the master of the bark, and two-thirds owner thereof.

In addition to the matter of unSQaworthiness, the insurer plead that the loss was occasioned, not by a peril insured against, but by the unskillful navigation and gross negligence of the assured- himself. He also plead .that the master designedly cast away, the bark. It is insisted that the evidence establishes bqth. or one of' these pleas, and that the verdict of tbe jury should have been set aside by the Circuit Court for that reason.

The direct and proximate cause of- the, loss of the bark was stranding on the American shoals during a gale, and in waters in which exists a current, the course and velocity of which varies. This is a peril of the sea. The general rule where barratry is excepted from the risks,-which is this case, is that if the immediate cause of the loss is a peril insured •against, it is no defense that the loss, was remotely caused by gross negligence of the agent of the insured not amounting to barratry.

This is the law as settled repeatedly by the Supreme Court of the United States as well as by the Court of King’s Bench. 3 Pet., 222; 10 Pet., 507; 11 Pet., 213; 3 Sum., 276; 5 Barn. 3 Ala., 171. The pleas here are, however,.that the efficient cause of the-stranding was either the gross negligence or design of the assured himself. The underwriter is not liable to indemnify the assured for losses by the perils insured against directly incurred through the frauds or gross misconduct of the assured.

Where a loss by the perils insured against may have been remotely occasioned by the fault, or negligence, or want of the greatest degree of vigilance, prudence and forecast of the assured, and yet, without his being at all aware of such consequence, there are not wanting authorities establishing the liability of the underwriters to make indemnity. This liability undoubtedly does not extend .'beyond the bona fide acts of the assured, nor does it extend, to all” bona fide acts. This is the language of Mr. Phillips upon this subject. 1 Phil. on Ins., 3d ed., 589. Mr.

Arnauld; in his work .on Insurance, 2 Arn., 777, says it is not. every mis-' take in judgment on the part of the assured that will ’discharge the underwriter, although such mistake may have immediately brought about the loss. If the assured acted,though erroneously, yet with reasonable prudence, and a bona fide desire to do the best for all concerned, -the insurer will still be liable. The following is a condensed statement of the-evidence.' applicable to these pleas, and we must analyze it to determine the character of the act established by it: Mate. — From six to twelve A.

M. of Dee. 26th, we wercsteeriug in an easterly direction about E. to E. by N., went' about thirteen to fifteen miles in four hours, from 8 to 12, allowing one and a half knots-for current in an' easterly direction. At 12 our latitude was 21 degrees 8 minutes; our ’ longitude 81 degrees some minutes, about forty-five miles" from the Florida coast. [From 12 to 1 neither this nor any -, other witness gives the course of the vessel, and her course can only be determined by taking her position at 12 and 4 ' o’clock..] At four o’clock I saw a light which bore due north, the vessel then heading N. by W.

It was an iron screw structure painted red, the lighthouse being red and the top white. It was about ten miles off. Did not notice land inside of-the light. Had no wind at four, the weather was hazy and thick, there was a squall coming in an easterly direction. [The mate does not speak with great accuracy as to circumstances between four and six.] What he says is that before six, vessel was heading N. N. E., was then on port tack, went about at six; the weather continued calm from four to six. What wind there was was from southward and westward.

Had no steerage way on bark from four to six: At six he says a breeze sprung up with a squall from eástward, and that he saw a light about thirteen miles distant bearing'N. N. W. one-half N., which he took to be Sombrero light. The vessel ■ was heading N. E. by N. From about six to eight I was below. The weather during that time was raining and squally. Came on deck at eight, saw no light then. The vessel was heading at eight o’clock E. N. E., she was then on the port tack. After she came about, her course was N. E. by E. The wind was about S. S. E.

The vessel was on the wind going about two knots an hour, after she went about, she was now on the starboard tack, she continued at that rate about three-fourths of an hour about quarter, to nine o’clock. The wind then shifted more to eastward and the sails fell back. I then put her on the port tack. The weather was squally, the wind so variable that I could not tell the exact course ; thought it about N. E. This continued about one or one and one-half hours. She made about three or four miles from eight to ten ; judged the course to be a north-easterly direction. My watch was from eight to twelve.

I changed her course very often during my watch. She was sometimes to eastward, sometimes to north, according to direction of the wind. Between eight and twelve, the wind was from all directions, from N. E. to S. E. in general, and from eight until she went ashore was rainy and stormy. At ten a steady breeze sprung up from N. by W. Between ten and until she struck, wind sometimes N. N. W., sometimes N. one-half W. At ten she was on the port tack heading N. E. by E. The sea was running high from northward and eastward. Bark went about four and one-half or five knots per hour from ten until she struck.

Towards ten I saw a light, while up in the mizzen, with a glass, thought it the same light seen at six; from the bearing, took it to be Sombrero light; it bore W. by S. It was only visible at times ; this time I could not estimate the distance, as the weather was thick. It was a bright light and appeared to be fixed, took it for a fixed light. The vessel struck near twelve o’clock at night. When she grounded was on the port tack, course N. E. — another place N. E. one-half N. Went about four or five knots per hour from ten to twelve. Wind about N. by W. or N. N. W., with a-heavy sea from N. E.

Hitchings. — This witness says that during the day, on the 26th, the wind and weather was fair. Does not know the course of the vessel. That between seven and eight o’clock a light was discovered. At nine another light was seen; one was a revolving, the other a fixed light. Thomas Brown. first saw the light. Heard the Captain call their names when he got ashore. Can’t say how they bore, the course of the vessel, or how far the lights were off. He says the weather at night was squally. Bark struck at about quarter to twelve o’clock at night.. Brown. — Land was seen just before dark.

Weather was variable and light, with rain all the voyage, up to when lights were seen. Light was seen about “ dawn of evening — about dark.” Was not on deck when lights first seen ; lights bore on the weather bow when first seen. About a quarter to eight I saw two lights, one revolving, the other fixed. This was about three and three-quarter hours before bark went ashore. Captain told me the names. When I first saw them they were abeam of the ship on the weather bow, and when going out of sight, about one and three-fourths hours before bark went ashore, were upon the port quarter.

Course of vessel at quarter to eight was N. N. E. [In two other places says ■it was N. E.] Wind, when bark passed revolving light, was •N. N. W. Saw the lights up to quarter to ten. Wind, when passing the lights, was S. W. Vessel struck between half after eleven and twelve. Grant. — The wind was fair and the weather light up to seeing light houses. Park struck about twenty-five minutes to eleven. Saw a revolving light about five hours before, about twenty-five minutes to six. It bore to westward and northward pretty much ahead of the bark about ten miles off. It was Sand-Key light. Course of vessel about S.

E. at the time. In another place, when lights first seen, bark -heading N. W. Heard the Captain' give the course S. E. to the man at the wheel. Wind while the lights in sight about S. W. A squall was making ahead. Captain first discovered the lights. Both Sand-Key and Key West lights in sight about four hours before she struck. Key West light bore about N. W. about thirteen miles off. The night was very dark. No moon, weather cloudy and squally. Vessel struck about 'twenty-five minutes to eleven. Her course then about S. E. Wind from S. W. She was close hauled and on port tack when she struck.

Protest sworn to by master, mate, boatswain, aud the two Beamen, Grant and Brown : “ That the loss of the bark was owing-immediately to adverse winds, heavy, squally and foggy weather, and a strong, adverse current, which it is said sometimes sets in across the Florida Reef from the Gulf Stream.” .

Evidence as to Weather. — One Witness for the defendant says the wind- blew heavily in squalls; another that the wind was very-fresh and squally, a heavy sea heaving in; ..another -that the wind was blowing heavy, with violent squalls, a-heavy sea, and the night-dark, that the. wind was about a reef-topsail breeze for a ship on the wind, but in the squalls it was much heavier. The mate says that from sis to eight the weather was rainy and squally, and that fro'iSj eight until she went ashore was rainy and stormy.

About ten o’clock the sea was running high; the squalls came often ; they were' very heavy; sometimes had to lower the. tops down and clew everything up. Another witness says the weather on that night was-a. heavy gale of wind, a heavy dark night, raing heavily; wind variable and squally. Another that the weather was stormy, and wrecking vessels were out. -i Eilor. — I have navigated the waters in which the bark was lost nineteen years.

The velocity of the curx-ent, which exists in these waters, varies; thei’e is no man living there, who can give a correct account of the currant; it varies from the eastward to the northwax’d, northwax-d and westward»;, sometimes no current at all, at others about five knots. Upon being asked to state the course of the curx’ent on the night of the loss of the bark, with the wind in the direction it was, he answers : It-is beyond my knowledge, and could not be told by any one raised thex’e; it is beyond any man’s knowledge to tell anything about the cux’rent; in. general it is a subject of dispute. E.

Eilor. — Sombrero light can be seen seaward from eighteen to twenty miles, Key-West light about fourteen, aná that Sand-Key light may be seen from ten to fifteen miles in bad and thick weather. The reflection from Sombrero and Sand-Key might be seen on a very clear night from the American Shoals. There is also in evidence a chart of tly Stx’aits of Florida.

If the mate’s testimony gives the bearing of the light seen at ten, as well as the course of- the ship and the direction of the wind at that hour, it follows that, if the light seen was Key-West light, a bearing of west by south would place, the ship inside, the reef at that time. If it was Sand-Key light, then the ship, -if she was ten or fifteen miles from the light, with a northeast by east course, would be on a course which4 >if continued a few miles, would carry her on the reef at a point in' the vicinity of American Shoals. .If it was the light <5ii.

Sombrero Key, which the mate says, he thought it was, then, a northeast by east course would not have carried her -en. the reef, and would not have placed her where she .grounded, unless instead of going forward in a northeast by ■east course ten- miles as he supposed, she went backward in a west by south course about forty miles around or through fcke reefs in two kours.

Tke result of tkis is that, if any light was seen at ten o’clock, and there was no mistake in .the bearing, it was impossible that the' light seen could have feeen either Key-West light or the light on Sombrero Key, ■-and that it was probably Sand-Key light. • What Hitchiügs says in' this connection amounts to little. He knows nothing of the course of the vessel, the winds or .bearings of the lights. Erom Grant’s testimony no very satisfactory conclusion •can be drawn.

He says the bark’s course at six or seven o!elock,‘ while both lights were in sight, was southeast,, and the wind southwest, and that when she ran ashore, about four hours afterwards, according to bis estimate, her course and the direction of wind were the same. He says nothing about the course of the vessel or -wind during the four hours.

AH that can be said of tbis testimony is that if this vessel had a southeast course and a southwest wind for any considerable time before slie went ashore, her going ashore could not be attributed either to neglect of the master in taking proper precautions to keep her off the shore, or to any design to place her there. She must have gone to the northward under these circumstances to get ashore, and unless there were some very extraordinary current operating, her going in that direction, under such circumstances,.would be impossible.

The testimony of Brown is that the lights went out of isight about one and three-quarter hours before, the bark went ashore; that when going out of sight they were upon the port quarter. Tlie lights seen, he says, were Key West and Sand Key lights. The difficulty in this testimony is that the course of the vessel is not given for such a length •of time as to enable you to make any safe calculation. The point at which the lights went out of sight is not readily fixed, and the precise course of the vessel is given only at .quarter to eight o’clock, which was N. N. E.

There are .some legitimate inferences to be made, however, from Brown’s entire testimony. If the lights went out of sight ■on the port quarter, the bark’s course ought to have been somewhere between east, northeast, and north by east. Now a north by east course would, in all probability, have caused her to strike the reef, but an east, northeast, or northeast by ■east course would not have put her on the reef where she struck.

An east northeast course would have been a course about parallel with the reef.' A -northeast by east course would have been a course for Sombrero light, and the bark must have come in sight of this light before striking the -reef, thus enabling her to shape her course with certainty. Again, if we consider the mate’s and Brown’s testimony together upon the hypothesis that the light seen was Sand Key light. The mate testifies that at eight, when he came on dock, the vessel was on the port tack heading about east northeast. That about eight she came about and her course was northeast by east.

Now the course given by Brown, at a quarter to eight, corresponds to some extent with the course given by the mate when he came on deck at eight. If the ship’s course is continued by the mate upon the hypothesis that the Sand Key light was seen at eight, we find this: That at eight the bark came about and went for three-quarters of an hour on that course, at the rate of two knots. Erom this testimony her position, would be at this time about eighteen miles east by south of Sand Key, and about ten or twelve, miles to the southward of American shoals.

The mate says that the wind at this, time shifted to the east ward, that he then put her on the port tack, that the weather was so squally and the wind so variable that he could not tell her course for sometime. He thought it, however, about northeast. This course would have her heading toward Sombrero Key, about twenty-five miles distant. This, he says, continued about one and a half hours, but that he made only three or four miles from eight to ten o’clock. With this he could never have seen Sombrero light at ten with a bearing of west by south, nor could he have seen Sand Key light at ten with this bearing.

It'is not a violent inference from the testimony of Brown and the mate, viewed in this aspect, to place the vessel at ten at a point southwest by west of Sombrero Key about twenty miles, and about east of Sand Key twenty-four miles. ’ At ten the mate has the bark heading northeast by east. This course would hot have put her on the shoal from this point, but would have carried her a few miles to the southward of Sombrero Key. The mate says she was on a northeast course when she struck. We cannot see how this course, with a wind north northwest, or north half west, could have placed her on the shoal.

With either of them, lie must have soon come'in sight of Sombrero Key light, and thus been able to fix his position with some certainty. These inferences are based upon the course of the ship, bearings of the lights, and the distances made as given by the testimony; calculations which any one with a chart can readily make. No estimate of the influence of the current or the .effects of the adverse winds prevailing is made, and we cannot from this testimony form any definite opinion' upon these subjects.

The defense is negligence of the master, and a different rule of law is applicable to his negligence than would be applicable to negligence of the other officers or crew, which the master could not be expected to prevent with ordinary prudence and care.

Now it is not established by this testimony that the master had anything to do with the changes made in the course of the vessel between the hours of eight ' and twelve, an’d while the general presumption is that the master of a ship directs her course, and it is his duty so t® do, yet in this case there are facts in the testimony which indicate a change of course by the mate between eight and ten o’clock without his sanction. The master was below when the vessel struck, and the jury had a right to infer that he was below during the mate’s watch, as there was n© evidence of his being on deck.

The master may have left the deck at eight with an east northeast course, which was a course about parallel with the reef. She soon came about, and her course was then northeast by east, according to, the mate, which was a course not calculated to place her upon the reef from her then position. If the current was to the eastwai’d, its usual course, then its tendency would have been to carry her from the shoal, and such also would have been the tendency of a northwest wind.

Now all that can be said of this testimony is that, giving it the most reasonable construction that can be given, the shoaling of the ship does riot appear to be a natural result' following from it This negatives any idea of design. But it is said that as the courses thus given do not account for the ship’s shoaling, therefore there must have been gross negligence in the navigation ; if the courses did not place her there, then we have gross, negligence established; if they did, then there was design. . The proposition is too broad; you must prove some act of negligence.

There are some statements of the seamen to the effect that the captain, after the stranding, expressed a desire that the bark might break in two, and one of them states that he heard the captain, on the night of the shoaling, at about 8 o’clock, say to the mate, “ Here is my course, but I will put her in here.” This is all he appears to have heard of the conversation. If the jury came to a conclusion in this case based upon a general view of the facts of the case, either rejecting this evidence or giving it a favorable construction. their aetion iu this respect affords no ground for setting aside the verdict.

This matter must be solved by the application of the rules of evidence to this testimony. Where the assured establishes a loss and shows that the direct and proximate cause of it is a peril insured against, then the insurer can relieve himself by showing that the efficient and direct causes of encountering the peril was the failure on the part of the assured to act in good faith toward the insurer, or to exercise ordinary prudence in the management, navigation and care of. the vessel. The insurance here is upon the freight.

The insurer engages that fortuitous dangers shall not prevent the voyage and earning of this freight, provided due means are ¡.'used by the assured to attain that end. When this duty and this due means are neglected, the assured discharges the insurer from the direct consequences of such neglect, and takes upon himself the risk incident to his negligence or misconduct. Judge Story, in delivering the opinion of the court in Columbia Insurance Co. vs.

Lawrence, 10 Pet., 507, remarks that a loss by fire, occasioned by the mere fault and negligence of the assured, or his servants or agents, and without fzraud or design, is a loss within the policy. This doctrine was also announced by the Supreme Court of New York, in 16 Barbour, 127. These are both cases of insurance against fire on land. Our examination of the case in the Supreme Court of the United States does not disclose that the neglect of the assured himself was set up as a defense in that case.

However this may be as to fire insurance upon land, the elementary writers, Phillips and Arnauld, upon the subject of marine insurance state the rules as we have quoted them. This seems to be the view of Lord Mansfield in the case in 1 Burr, 341, where he states the general rule as to risks taken by the insurer. It is the view of Lord Ellenborough, as expressed in 1 Camp., 436, and it is the rule announced in 20 Wend., 303, and 26 Wend., 581. Chief Justice Marshall, in the same ease where Mr.

Justice Story announced the rule above stated, says: “ Generally speaking, insurances against fire are made in the confidence that the assured will use all the precautions to avoid the calamity insured against which would be suggested by his interest.” 2 Pet., 49. Certainly an assured’s interest, as a general rule, would suggest ordinary care and prudence. See also Chan. Kent’s views in 1 Caines’ Cases in Error, 11; also 3 Kent’s Com., 300; 5 Hammond, 435. In addition to these authorities, the rule we announce is the only one consistent with the general principles incident to the contract in other respects.

The implied warranty of seaworthiness requires at the hands of the assured such a degree of care in the selection of his officers and crew as is. necessary to obtain competent persons, and the principle extends to many other matters embraced in the contract. There is no doubt that the burden of proof is here upon the underwriters. This negligence must appear from the plaintiff’s case, or defendant must prove it. The presumption is with the assured, after proof of loss. 4 Mason, 441; 12 Wheat., 383; 45 R., 37; 4 Camp., 234; 1 Burr, 347. In this -view, what is the present case ?

Unless we are prepared to say that so shaping the course of the vessel upon this voyage as to come in sight of the lights in the Straits of Florida establishes such neglect, want of care, or bad faith upon the part of the assured as excuses the insurer, we cannot disturb the verdict. This we cannot say. The lights are placed there to be seen, and as points of departure for the voyage up the Atlantic. The evidence shows the existence of adverse winds and stormy weather upon the night of the shoaling, as well as the existence in these waters of a current whose velocity and course varies.

In the absence of any satisfactory proof showing negligence or design as the direct cause of the shoaling, we Cannot disturb the verdict. ' The questions of seawofthiness and care in the navigation. of . this ship just disposed of are, in the language of Mr. Justice Story, “questions of fact, dependent upon.nautical testimony, and' are incapable of being solved by a court without assuming to itself the province of a jury,.and judi•sially relying upon its own skill in maritime affairs.” McLanahan vs. the Universal Ins. Co., 1 Peters, 184.

The Supreme Court of the United States will not control the discretion of the court in the matter of refusing new trials hr such cases, and is thus relieved of the responsibility of considering conclusions reached by juries in such matters. Here the statute makes it our duty to do so. We refer to the- remark of Judge Story to indicate to counsel the very great propriety of settling questions of nautical science by the testimony of experts in that science. Their opinions are, -certainly, more satisfactory than the opinions of persons not thus skilled.

When parties upon either side neglect to produce such testimony, all unfavorable consequences resulting from its absence must be attributed to their own acts. The next point arising upon the testimony which wO consider is, that the evidence discloses that at the time the eon tract of insurance was entered into, a large part of the .freight to be earned had been paid to the plaintiff — that the amount of freight at risk was less than that covered by the policy, and that the verdict for the full sum is erroneous.

Under the terms of the charter party, as well as the.contract endorsed on the bill of lading, the moneys paid to the master were advanced against the freight, and were to be deducted therefrom. This is also a valued policy. The general rule is, that the insurable interest of the owner of the- vessel extends to the - whole amount of the freights 4o be earned by the voyage; and when its value is fixed by agreement, that is conclusive in the absence of fraud. Does the fact that he has pledged it to a third-party as a fund from which to redeem a loan, giving him a lien upon it, change the rule?

Under such a contract equities as to- the freight arise in favor of the party making the advanees, and he may have an insurable interest to the extent of his loan, but it does not follow that the insurable interest of the owner is diminished to the extent the freight is pledged. One who has pledged or mortgaged his interest in the ship, even to the extent of - its full value, has still an insurable interest to the full value. 1 Phillips, 41; 2 Pick., 258. In this case there is a pledge of freight to be earned.

The same rule which permits a mortgagor of the ship to insure for its full value, must permit a party receiving a loan or advance against the freight to insure that freight. The effect of this pledge of the. freight is not relief from the debt, in case the- freight is not earned, in the absence of a stipulation to that effect.

Whatever doubt may have existed in England upon that subject, the doctrine in this country is that “if freight is paid in advance, and the goods be not carried by reason of any event not imputable to the shipper, it is to be repaid, unless there be a special agreement to the contrary.” 3 Pick., 20; 11 Mar., 360; 3 Kent’s Com., 227; 3 Sumner, 66. We have no doubt of the ownex*’s insurable intex’est to the full amount of the freight, notwithstanding an advance to be chai-ged against it. .It is alleged that there was concealment iix reference to the condition of the ship at the time'the policy was applied for.

This is a matter to which the implied warranty of seaworthiness extends, and the assured is not obliged to communicate any fact as to which there is a warx-an-ty express or implied, unless information upon the sxxbject is particularly called for iix the first instance. 20 John., 214; 4 East., 590; Annesly on Ins., 143; 12 Maryland, 343. The Judge charged the jury in this ease as follows: “If you find, from the evidence, that the master of the Mutter Schultz designedly cast away and destroyed his vessel, you mxxst of course find for the defendant.

In determining this question yon must be satisfied beyond a reasonable doubt that the master did designedly cast the vessel away before you can -find against him on this point.” This charge was excepted to, and is assigned here as error. This defense involves a serious charge affecting the character of the master. It is a crime. It is not denied that, this would be the rule if this was a prosecution of a criminal character.

Does the fact that in this case the question arises simply as a defense in a matter of civil contract vary the rule as to the degree of proof which should be required % Now, the fact to be proved, whether its proof be in a civil or criminal case, is the same — the casting away of the ship by design — and the rule is that the .sanie,-amount of proof which exists in one case must exist in the other — that is t© say, the conclusion to be established cannot be inferred from one state of facts in a civil case, and another state of facts in a criminal case.

The reason why strict proof is .required is not that the one case or the other is civil or criminal, but because the nature of the conclusion to be reached in each case is óf such character as the law requires strict proof to establish it. The rules of evidence are the .same in civil and criminal cases. Green. Ev., 10 ed., par. 65; Abbott, J., in 2 Starkie, 116. “A fact must be established.by, the same evidence, whether it is to be followed by: a civil or criminal consequence.” 2 Russell on Crimes, 589. The cases upon this precise point d^ not entirely coincide. In Thurtell vs.

Beaumont, 1 Bing., 339, the defense was that the property insured was wilfully burnt, by, the plaintiff' himself. The Judge directed the jury that “ before they gave a verdict against the plaintiff, it was their duty to be satisfied that the crime of wilfully setting fire to the premises was as clearly brought home to him in this action as would warrant their finding him guilty of the capital offense, if he had been tried before them on a criminal charge.” Mr. Justice Slidell, in 1 La.

Ann., 219, speaking for the Supreme Court of Louisiana, says: “We think that the jury should not have been instructed to require the same full proof to discharge an insurer as would -be necessary to convict the assured.

The position of the claimant in the one case and the prisoner in the other are not identical.” The same court,, however, in a subsequent action upon a policy of insurance, held that “ where a criminal charge is to be proved, the proof ought to be not only consistent with the prisoner’s guilt, but inconsistent with any other rational conclusion and although it was a civil proceeding pending, the court applied this rule.

The decisions upon the precise point, therefore, establish the rule to be, that the character’ of the fact to he proved, and not the position of the party, determines the degree of proof to he required. There was. no error in this direction of the court. The only error assigned remaining to be considered is-, that the court entered judgment upon a verdict which wars illegal and insufficient.

The verdict was in these words: “¥e, the jury, find for the plaintiff’, and assess the damages at six thousand dollars, with interest from the commencement of this suit at legal rate.” There is no difficulty in the clerk’s calculating the interest from the date of the commencement of the suit to the date of the verdict; the periods are fixed by the verdict. There is no difficulty as to the rate. There were no issues in respect to interest, and interpreting the verdict with reference to the issues, the necessary conclusion is that the interest is at' the rate prevailing in the jurisdiction of the Court.

The general rule is, that a verdict must convoy on its face a definite and precise meaning, and must show just what the jury intended. If there had been issue hero as to the rate'of interest, or any question of this character, such an issue would not have been determined by the verdict, and in such a caso there might have been doubt as to the intention of the jury. In this case we think there is none, and that their conclusion is expressed with sufficient certainty to justify a judgment? thereon.

In leaving the matter discussed in this appeal, we remark that among other things wanted, the ease stated is not signed •or verified by the judge. This is a fatal defect. The only thing which gives verity to the correction and settlement of a case in this Court is the signature of the judge. 32 Rule of Practice Circuit Courts. The judgment is affirmed with costs.