
    WILLIAM HAYS, Respondent v. THE PHENIX INSURANCE COMPANY, Appellant.
    
      Perils of the sea, when a loss occurring through an omission of the captain and a failure of the mate to act is covered by.—When there is evidence on both sides as to whether the captain is responsible for his omission and whether the failure of the mate was negligent, those questions are properly submitted to the jury.
    
    Although a vessel is lost by reason of the omission of the master to take certain precautionary measures, which a careful and prudent captain would ' have taken under the same circumstances, and the failure of the mate to take charge of the vessel in time to prevent her loss, yet if the omission of the captain was due to his sickness, for which he was not to hlame, and the condition of the captain could not under the circumstances be ascertained by a reasonable and careful man in time to enable him to prevent the loss, then the loss is covered by a policy insuring against the perils of the sea, and the insurer is liable therefor.
    Where there is evidence, pro and con, as to whether the master’s omission was due to his sickness for which he was not to blame, and as to whether the mate should have ascertained the master’s condition and taken charge of the vessel in time to prevent her loss, those questions are properly submitted to the jury. •
    
      Before Sedgwick, Ch. J., Freedman and Truax, JJ.
    
      Decided June 28, 1889.
    Appeal by defendant from a judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s motion upon the minutes for a new trial. The facts sufficiently appear in the opinion.
    
      George A. Black, attorney and of counsel for appellant, on the questions considered in the opinion, argued:
    I. The loss of the “ Sheldon ” is directly attributable to the gross negligence and misconduct of the master (the assured), for which the defendant is not liable. Lowndes on Marine Insurance, p. 114; Thompson v. Hopper, 6 El. & Bl. 937; Emerigon on Insurance (Meredith), p. 337; Phillips on Insurance, § 636.
    II. It was conceded by the plaintiff on the trial, and the judge charged the jury that if the condition of the master was due to the use of liquor, he could not recover, and the court allowed the jury to pass upon the question as to the condition of the plaintiff. .The verdict of the jury under this ruling was clearly contrary to the weight of the evidence and should be set aside.
    III. While the underwriter is liable for loss by perils insured against—though in consequence of the negligence of the insured himself, when such negligence amounts to gross negligence or wilful misconduct, the rule does not apply. Johnson v. Berkshire Mut. F. Ins. Co., 4 Allen, 388; Sturm v. Atlantic Mut. Ins. Co., 63 N. Y. 86; 2 Phillips on Insurance, §§ 1049, 1096. Such misconduct need not consist of malfeasance, non-feasance is enough. Chandler v. Worcester Mut. F. Ins. Co., 3 Cush. 328; Patapsco Ins. Co. v. Coulter, 3 Peters, 222; Lawton v. Sun Mut. Ins. Co., 2 Cush. 200.
    
      IV. If the story of the plaintiff’s witnesses is to be believed, the circumstances were such that the mate must have taken notice of the condition of the captain.
    
      Goodrich, Beady & Goodrich, attorneys, and William W. Goodrich, of counsel, for respondent, on the questions considered in the opinion, argued :
    I. The underwriter is not discharged from liability by reason of the sickness of the captain. The law upon this subject is well laid down in the following case: “A vessel which is insured on a voyage out and home, and which departs with officers and a crew competent for the voyage, does not become unseaworthy by reason of the master’s becoming incompetent at the foreign port, to command the vessel; and if the vessel sails from such port under his command, and is lost on the homeward passage, the underwriters are not discharged, although the loss may have been caused by the master’s incapacity. And although, in such case of the master’s incompetency, it is the duty of the mate to take command of the vessel, and although he has a right to resort to all lawful means to establish himself in the command; yet, if, from want of judgment, or even from culpable negligence, he omits so to do, and the vessel sails under the master’s command, and is stranded, the underwriters are not discharged.” Copeland v. Marine Ins. Co., 2 Metcalfs Reports, 432.
    II. The underwriter is not discharged because the mate did not assume command of the ship. He did not know the condition of the captain, and while he saw that something was the matter with him, between the time he came on deck and the loss of the ship, he did not have such positive knowledge as would have justified him in taking the command of the ship from the captain, which, unless entirely and clearly justifiable, would have been a mutinous act. It will appear,' by examination of the testimony of the expert witnesses on both sides of the case, that even physicians differ as to what was the real trouble with the captain and, also, as to the effects of malaria and the administration of quinine as a remedy for such sickness. • The question whether the mate acted in good faith was one of the questions which was submitted to the jury under the charge of the learned judge.
    III. There were disputed questions of fact as to the causes of the disaster, as to the causes of the condition of the captain, as to whether the mate should have assumed the command of the vessel, all of which were submitted to the jury, and their verdict will not be disturbed.
   By the Court.—Freedman, J.

This action was brought on a policy of marine insurance, insuring Parsons & Loud, on account of whom it may concern, in the sum of $1,500 on the body, tackle, apparel and other furniture of the brig “ Emily T. Sheldon,” for one year from July 14,1885, and covering among other risks, perils of the sea and barratry of the master and mariners.

The plaintiff was the owner of three - sixteenths of said brig; was the master of the vessel and in command of her at the time of her loss. He was sailing the vessel on shares, furnished and paid the crew; and the provisions on board, which at the time of the loss were of the value of $130, belonged to him. The policy was taken out for the account of the plaintiff.

The brig sailed from Boothbay, Maine, with a cargo of ice on March 18,1886, bound for Annapolis, Md., and went ashore at Peaked Hill Bars, near Provincetown on Cape Cod, on March 22, 1886. She thereafter became a total loss and was stripped and sold. The net proceeds of said sale were $756.22, of which the plaintiff received three - sixteenths.

As the plaintiff was master and part-owner, and in command at the time of the loss, no claim can arise for loss by barratry, and to recover, the plaintiff must show a loss arising from the perils of the sea. These perils, as defined by Kent, denote natural accidents peculiar to the sea, which do not happen by intervention of man, nor are to be prevented by human prudence. Another definition of sea peril is, “ a sea damage occurring at sea and nobody’s fault.”

At the trial it was made to appear that the brig was lost by reason of the omission of the plaintiff as master to take certain precautionary measures which a careful and prudent captain would have taken under the same circumstances, and the real substantial issue litigated was whether such precautionary measures were not taken in consequence of plaintiffs’ intoxication or in consequence of plaintiffs’ sickness for which he was not to blame. Upon this issue there was quite a conflict of evidence.which could only be determined by the jury, and the whole case was submitted to the jury under a charge which carefully guarded every right which the defendant could rea-' sonably claim.

The defendant could not rightfully claim, upon all the facts disclosed, that, as matter of law, the mate should have ascertained the plaintiffs’ condition and taken charge of the vessel in time to prevent her loss, and that, having failed to do so, it was such negligence on the part of the mate as relieved the defendant from liability. The question of negligence on the part of the mate presented under all the circumstances a question of fact, and as such it was fairly submitted, to the jury. Upon this point the trial judge charged the jury, that if the captain was incapable of performing his duties, the duty devolved upon the mate to act in his place, but that the mate could not be expected to ascertain the captain’s condition any sooner than that condition could be ascertained by a reasonable and careful man under the circumstances.

A careful examination of the whole case shows that there is no merit in any of the exceptions taken.

The .judgment and order should be affirmed with costs.

Sedgwick, Oh. J., and Truax, J., concurred.  