
    Natchez Insurance Company vs. Stanton, Buckner & Co.
    where a loss has happened to insured property, and a correspondence ensued between the insured and insurers, as to the extent of loss, and the mode by which it shall be ascertained and adjusted, and the insurers, in a letter, state to the insured “ that the Company (the insurers) are to indemnify S., B. & Co. (the insured) all damages sustained by a peril of the river,” and the parties cannot agree on a settlement: Held, upon a suit for the damages to the injured property, that the parties are remitted to their original legal rights, unalfecled by the negotiations for settlement.
    In marine policies of insurance, which apply also to the navigation of rivers, the assured impliedly warrants seaworthiness, proper documentation, irpt to dfc, viate, and that the goods shall be properly stowed, all of which extend to the owner of the goods, except proper documentation.
    
      y Any voluntary deviation from the contract of insurance, by the assured, even though the risk be not increased thereby, discharges the underwriters.
    A steamboat, insured against the adventures and perils of the river, of fire and all other perils, losses and misfortunes, that might happen in the navigation from port to poi l, took a brig in tow : Held, that the taking the brig in tow was a deviation from the policy of insurance, there being nothing in the policy which expressly authorized it.
    Where the insurance is upon the cargo only, and the boat deviates from the contract of insurance, the underwriters are discharged; the officers and crew of the boat being, prior to the loss, the agents of the assured, after abandonment of the insurers.
    The principle, that the underwriters are liable for a loss, the proximate cause of which is one of the enumerated risks, though the remote cause may be traced to the masters and mariners, has never been extended to a case of voluntary deviation.
    The insurers are not liable for any loss for which the owners of the ship are answerable to the shippers — sed quere ?
    
    Barratry is an oifence which can only be committed against the owners of the vessel, and is not covered by the ordinary provisions of a policy of insurance.
    An advertisement, that an insurance company would insure goods upon certain enumerated boats, is, at most, but a waiver of the implied warranty of seaworthiness.
    The usages of the insurance offices at New Orleans, La., cannot affect the insurance offices at Natchez, Miss.
    The usage of towing boats upon the Mississippi river, by steamboats, unless shown to be so general and so well known, that it was fair to presume the parties contracted with reference to it, will not, in an action upon a policy of insurance against the underwriters, affect their liability.
    
      This cause, for the third time', comes into this court by writ of error to the circuit court of Adams county.
    The action was in covenant, upon a policy of insurance, made by the plaintiffs in error, who were defendants below, to insure the defendants in error, the plaintiffs below, against loss upon, goods to be shipped to New-Orleans; the terms of the policy were as follows: “Upon all kinds of goods and merchandise, laden or to be laden on board any good steamboats, by whatsoever name the said vessel or master thereof might be named or called, beginning the adventure upon the said lawful goods and merchandise, from and immediately following the loading thereof on board said vessels at the landing aforesaid, .(Grand Gulf, Miss.) and so shall continue and endure until the said goods and merchandise shall safely be fanded at New Orleans, aforesaid. And it shall and may be lawful for the said vessel, in her voyage, to proceed to and touch at any port or places, usual on said voyage, without prejudice to this insurance. Touching the adventures and perils, which we the as-surers are contented to bear, and take upon us in this voyage, they are of the rivers and fire, and all other perils, losses, and misfortunes, that have or-shall come to the hurt, detriment, or damage of the said goods and merchandise, or any part thereof.”
    The remainder of the policy consisted of stipulations in case of loss, as to the duty of the assured ; of the terms of the insurance ; the character of goods to be shipped; the rate of loss in' case of prior insurance, and other items, which it is not requisite, to the proper understanding of the opinion of the court, to notice, either particularly or in full.
    "The declaration, after reciting the -policy, averred, that “on the 6th day of December, 1836, the good steamboat Fort. Adams was in good safety, to wit: at Natchez aforesaid, and was then' and there laden with divers goods and merchandise, and that heretofore, to wit, on the 7th day of December, 1836, the said steamboat Fort Adams was in good safety at Fort Adams, to wit, in the county aforesaid, and was then and there laden with divers other goods, wares and merchandise, to be carried on board said steamboat; the said port of Fort Adams, being an intermediate landing between Natchez and New Orleans aforesaid, usual and common for steamboats to touch at.” After stating the value of the goods shipped on the boat by the plaintiffs below, the departure of the boat, and her progress in the voyage to New Orleans, the declaration continued“ And afterwards, and when said steamboat, with the said goods and merchandise, so laden and being on board thereof, as aforesaid, was proceeding on her said voyage, and before her arrival at New Orleans, was by and through the perils and dangers of the river greatly damaged, and opened in her seams, and between her planks rendered leaky and greatly filled with water, and the said goods and merchandise, and cotton thereby, then and there in said voyage, wetted, damaged, injured, wasted and spoiled.” And after averring a compliance with the conditions precedent to the liability of the insurance company, the declaration concluded with-an averment of damages, to the extent of thirty thousand dollars.
    Various pleas were filed to the declaration, denying the performance by the plaintiffs below of the conditions precedent to their recovery, the shipment of the cotton, the amount of loss, and payment of the damages, upon all of which issues were tendered and taken.
    In July, 1838, a verdict was rendered in favor of the plaintiffs below, for $10,226 39, and judgment given accordingly, which the high court of errors and appeals reversed; the decision is reported in 4 Howard, 63.
    Before a second trial, the defendants below filed other pleas, by leave of the court, denying that the loss happened to the steamboat, by reason of the perils insured against, and denying also the insurance of the goods; under these and the other pleas the counsel on both sides agreed, that all “admissible testimony” should be given.
    In May, 1840, a second trial took place, and verdict-and judgment given again in favor of the plaintiffs below for $7722 10, which the high court of errors and appeals again reversed, and their opinion is reported in 5 Howard, 574.
    
      And on the 14th of December, 1841, a third trial was had, and verdict and judgment rendered for the plaintiffs, for $16,212 56.
    At this last trial, a great deal of testimony was introduced, as to the amount of cotton shipped, its value, and other points, which are not set out in this statement of the case, because they are not required to explain the opinion of the court.
    The proof of the sinking of the boat, by which the goods on board were lost, is to be found in the following protest; which .was, by agreement of counsel admitted as evidence before the jury.
    “ State of Louisiana. City of Neto Orleans.
    
    “ By this public act of protest, be it known that, on the twenty-sixth day of December, eighteen hundred and thirty-six, before me, Carlisle Pollock, a notary public, in and for-this city of New Orleans, duly commissioned, personally came and appeared, Laurent Palmer, master of the steamboat called the Fort Adams, of Fort Adams, together with Charles Stewart, mate, John W. Bennett, pilot, William Fleming and John Burnes, engineers, and Lucius Smith, carpenter, all of and belonging unto said steamboat, who having been duly sworn to declare the truth, deposed that said steamboat being tight and strong, well manned, fitted and provided, and partially laden with cotton, they departed with her from Coles Creek, on the Mississippi, bound for this place, on the sixth instant, on the same day reached Natchez, where they took in tow the brig Augusta, bound for this place, and again proceeded. On the 7th, they reached Fort Adams, where the steamboat completed her loading, and the brig also took in some cotton. On the 8th, the steamboat being in perfect order, and in fair running trim, they started from Fort Adams, to continue their intended voyage, with the brig lashed to their starboard side, towards the latter part of the day, it came on to blow heavy, with considerable sea on the river. At 7 P. M. stopped at the wood-yard opposite to Tunica Island, to replenish their fuel. During this time the wind and swell increasing, and the night setting in dark, with every appearance of a storm, the master determined to lay by until morning. On the 9th, at 4 A. M., the weather moderating, they got under way; but at day-light, it again came on to blow heavy, wind up stream, gradually increased to a gale, causing a laborsome chopping sea against the current, which made both the steamboat and the brig pitch and strain excessively. At half past eight, found the boat was leaking, and examination being immediately made, they discovered that the hold was rapidly filling; in this emergency the master caused her to be steered for the shore, directing, at the sa'me time, the crew of the brig, to prepare to cast off; this was not however done, until they came very near; when the brig unlashed and came to anchor, and the boat shooting ahead, took the ground on Port Hudson bar, a little above Thompson’s Creek, with her head onshore, and touching abaft; lines were immediately carried out, and the boat so secured as to prevent her from sliding off the bank; a stage was next rigged forward, and to prevent further damage, if not total loss, they commenced, without further delay, to land the cargo from the deck; in the meanwhile the clerk was despatched to Bayon Sara, to bring the steamboat Huntsville to their assistance, a'nd the carpenters were set to work to close up the hatches, to enable them, if possible, to raise the boat, when sufficiently lightened ; at about 4 P. M. they had got the greater part of the cargo landed from the decks, when the Huntsville came along side, took off what remained on the decks, and such portions as she could carry of the cargo that had been landed, and departed during the night; on the 10th, the boat was lying in the same state, her hold full of water, up to, and over the greater part of the deck, her bow on the bank, and aground abaft, and having about seventeen feet of water at midships; in this dangerous situation, in peril every instant of breaking up, the master deemed it necessary, for the interests of all concerned, to proceed to this place for assistance, and accordingly departed in the afternoon ; during the day, and the days following, the mate and crew, in pursuance of the instructions left by the master, employed themselves without discontinuance, in saving the cargo from the hold, and in freeing the boat from the weight of the engine, having first made an ineffectual attempt to pump her out by means of the latter; on the 14th, the master returned to the boat, when it being evident that but little hope could be entertained of saving her, it was determined to reduce the loss as much as could be, by stripping her of her machinery' and such other articles and materials as might be saved ; this course was also resorted to because the boat being thereby so much the more lightened, would be less liable to break asunder, and easier to raise, if circumstances should become more favorable. On the 15th, got a flat boat, and discharged into her a considerable part of the machinery, and materials of the boat; on the 18th May, had got out the greater part of the engine; on the 19th, the boat being much disencumbered, they endeavored to get at the cargo in the hold, but the place being full of water, they could not accomplish their purpose, until they had cut up the deck fore and aft; this having been done, on the 21st May, shipped by the steamboat Baton Rouge, a part of the damaged cotton, and of the machinery; on the 22d, got'out from the hold the remainder of the cargo; on the 23d, manned the flat, and started her for New Orleans, and on the same day shipped the balance of the cargo and materials saved, on board the steamboat Huntsville, and abandoned the wreck, it being impracticable to save from her anything more, nor to do anything further towards raising her; and further said appearers declared, that of the whole cargo, which, consisting of one thousand and eight bales of cotton, upwards of one half has been more or less damaged; and that se'veral bales have been totally lost, supposed to have floated off during the discharge.
    “ And thereupon these appearers, and especially the said master, did protest, and with him, at his request, I, notary, do by these presents, most publicly and solemnly protest against the heavy weather experienced by said boat, as afore detailed, and against the seas and currents of the Mississippi, as the causes of all the loss and damage suffered and sustained by said boat, and her cargo, and that no fault, negligence, nor mismanagement ought to be imputed to these appearers, nor to any others of said boat’s company.
    “ Done and protested at New Orleans, on the day, month, and year, herein first above written, the protestors hereunto signing their names, with me, notary.
    “ Signed, Laurent Palmer, master, Charles Stewart, John W. Bennett, William M. Fleming, John Burnes, Lucius Smith.
    “ CARLISLE PollocK, Notary Public.”
    
    Robert Spedden testified, that, after the Fort Adams was raised, and before any repairs were put upon her, he examined her, and could perceive no injury to her, in consequence of her having been sunk. That he particularly and carefully examined, and found no strain or breach about her, which could have caused her sinking.
    James-Stockton, Richard L. Robertson, and F. C. Gillett, testified to the same effect. The latter also stated, that he visited the Fort Adams before she was raised, and found her filled with water and"sand ; that after getting out the sand, and pumping out the water, she floated, and that he could not, upon examination, find where she had received any injury at all.
    After the -loss, a correspondence took place, between the plaintiffs and defendants, which was read to the jury.
    The plaintiffs below, after submitting their account to the company, which they refused to pay, opened the negotiation, and proposed to submit the question of the amount of loss to be borne by'the company to some practical merchant, for arbitration; The company passed resolutions, setting forth what they understood to be their liability, in which they state, “ That the company are to indemnify Stanton, Buckner & Co. all damages sustained by a peril of the river, upon each lot of ten bales, consisting from one to ten, as the bales are marked; provided the'deterioration of the ten bales amounts to ten per cent, loss, (fcc.-.&c.; ” and proposed to submit the legal questions, as to what they were liable for, to legal gentlemen, and then the extent of their liability, to merchants, and that they were unwilling to compromise on other terms. The correspondence continued, the company adhered to its determination, and the suit was brought.
    
      It is not necessary to set out the proof on the point of usage; it went to prove a custom existing among the insurance offices in Louisiana; and the defendants below were an incorporated company of Mississippi, and their office was at Natchez.
    The court' below instructed the jury, on the point of the effect of taking the brig in tow, at the request of the defendants below, as follows:
    “ If the jury believe the risk of the insurers was increased by taking the brig in tow, and that the consent of the defendants was not obtained thereto, defendants were discharged.
    “ If the jury believe that the boat was sunk, by having the brig in tow, in the storm which sunk her, defendants are discharged, in the absence of all proof that defendants assented to take the boat in tow.”
    The court to these added also the following charge; “That there must be proof, by the plaintiffs, that the defendants expressly gave their consent to take the brig in tow, before the loss pi the boat, or they must believe, from the evidence, that defendants, after the loss, acquiesced in it,” to which last charge defendants below excepted.
    At the instance of the plaintiffs below, the court instructed the- jury, as follows :
    “ 1. That if the jury believe that the proximate cause of the loss was a peril insured against, the defendants are not discharged in consequence of the loss having been remotely occasioned by the negligence, or improper conduct of the captain or crew.
    
      “ 2. That if the fact of the boat having the brig in tow, was only the remote, and not the proximate cause of the loss, this fact does not discharge the defendants from liability on their policy.
    “ 3. That if the jury believe, from the policy and testimony, that the loss of this cotton was caused by accidents, or misfortunes insured against, and find that loss was sustained, they should find for the plaintiffs.
    “ 4. That if the jury find that the master of the Fort Adams was the agent of the insurance company, or that the said company had, by advertisement or otherwise, appointed said vessel as a suitable one for transporting cotton, and the plaintiffs were not instrumental, and did not assent to the taking of said brig in tow, then the defendants are not, by said act of the captain, discharged from liability.”
    The defendants below excepted to each charge, as it was given. They afterwards moved for a new trial, which was overruled, and a writ of error prosecuted.
    The arguments of counsel upon the point of the excessive damages awarded, are not inserted, the decision of the court being based entirely on the question of liability at all.
    
      George Winchester, for plaintiffs in error.
    Plaintiffs rely upon two general grounds for a reversal of the judgment below.
    1. Admitting it should appear, that the plaintiffs below are entitled to damages, for a loss occasioned by the perils insured against, yet we say the damages given in this case are excessive, and the amount given by the verdict is more than the law and evidence of the case will justify or allow; and for this general cause the motion for a new trial should have been sustained.
    2. Plaintiffs below were not entitled to any verdict, because the loss was sustained by a departure from the terms of the policy, in taking a brig in tow, increasing the risk of the insurers, without any proof of their consent, whereby the underwriters were discharged.
    The court erred in the charges it gave the jury, for the plaintiff below, upon this question in the controversy; and the verdict of the jury is contrary both to the law and evidence thereon.
    Upon the second point.
    2. The policy in this case was vacated and the underwriters discharged by the taking the brig in tow, which occasioned the sinking of the steamboat.
    In a case upon an insurance at New Orleans, for the loss of -this very boat, it was decided, by the supreme court of Louisiana, by all the judges, that the bare taking the brig in tow, discharged .the underwriters, because it varied the contract of insurance, by increasing the risks insured against.
    In that case, it did not appear in evidence that the steamboat, after the loss, was raised, and found wholly uninjured, and taken to New Orleans without any repairs, and that she must have been sunk by having the brig lashed to her in the storm. But the court were unanimously of opinion that the danger of the boat’s sinking in the storm, was increased by having the brig in tow, and that therefore the underwriters were discharged. This decision is in conformity to the whole current of decisions upon a deviation from the course of the voyage or an unauthorized delay of the voyage which discharge the underwriters, because it varies the contract of insurance by increasing the risks insured against. And in such cases it is unnecessary for the underwriters to prove that the loss-actually happened by reason of the increased risk, but it is sufficient “that the risk is increased, by such variation from the terms of the policy,” to discharge the underwriters. Hermann, Briggs & Co. v. Western Marine Insurance Company, 15 Louisiana Rep. 516.
    But in this case, it is manifest the steamboat was sunk by having the boat lashed to her in the storm, and that if the brig had not been in tow, the storm would not have sunk her.
    The danger the captain-thought the boat in, from the brig, is manifest in his protest, from the anxious orders he gave to un-lash the brig, which was his first plan of saving his boat from sinking in the storm.
    How could it be otherwise but that the heaving and tossing of a heavy brig, loaded with cotton upon the stormy waves of the river, should strain and open every seam of the lighter built steamboat to which the brig was lashed; so as to cause her to fill with water, when upon being unloosed her seams were immediately closed, and she became as tight a boat as any on the river. The evidence also is that she was a sound and new boat and every way seaworthy.
    The court below charged for the defendants upon this point as requested, but added a charge of its own, qualifying the charges asked by defendants. In finding a verdict for the plaintiffs upon the evidence under the law of this case, the jury erred, and were undoubtedly led into the error by the qualifications which the court below gave to the charges asked by defendants, as also by the charges given at the instance of plaintiff’s counsel.
    Admitting all the charges given by the court to be correct, as mere abstract questions of law, yet there is not a fact proved, or of which there is any evidence, having a tendency to prove it, which would warrant the jury to find, that the underwriters were not discharged by the taking the brig in tow, and having her lashed to the boat in the storm, in which she was sunk. So that their verdict is clearly against law and evidence ; and the court below erred in refusing to grant the new trial upon the motion of the defendants below.
    But as it is believed the charges of the court, which are excepted to by defendant’s counsel, misled the jury, and are both erroneous as abstract questions of law, and unauthorized by any evidence in the cause, it is important the law should be settled and these questions decided, to prevent another return of the case into this court, and that defendants may have some chance of justice with the jury, who are not familiar with cases upon insurance. Defendants excepted to four charges given by the court below, on request of plaintiff’s counsel.
    1. That if the proximate cause of the loss was a peril insured against, defendants are not discharged in consequence of the loss having been remotely occasioned by the negligence or improper conduct of the captain or crew.
    2. That if taking the brig in tow, was only the remote, and not the proximate cause of the loss, the underwriters are not thereby discharged.
    3. That if the jury believe, from file policy and testimony, the loss was caused by an accident or misfortune insured against, and find that loss was sustained, they should find for plaintiff.
    4. That if the jury find, that the master of the Fort Adams was the agent of the insurance company; or, that the said company, by advertisement or otherwise, appointed said vessel as a suitable one for transporting cotton : and these plaintiffs were not instrumental, and did not assent to the taking the brig in tow, then defendants are not, by said act of the captain, discharged from liability.
    'Where there has been no deviation, and a loss happens by a peril insured against, which is remotely occasioned by the misconduct or negligence of the captain and crew, and not proximately so occasioned, the law is in a painful slate of uncertainty from conflicting decisions of great respectability, says Kent, in his Commentaries, whether such misconduct or negligence being the remote cause of the loss, will discharge , the underwriters or not. 3 Kent, 294.
    ■ But in the case at bar,,no such question arose, and it was merely an abstract charge, by which the jury were misled, by supposing and understanding it to be applicable to the taking the brig in tow, especially when connecting this charge with the other three charges, and especially the concluding words of the last charge. Whatever opinion this court might form on this abstract question, whether the court below has correctly or incorrectly decided, where Judge Story and Kent thought it prudent to avoid an opinion, it was clearly an improper charge in this case, and injurious to the defendant. 3 Kent, 294. 8 Mass. 308. Contra, 5 B. & A. 171.
    The next charge that “ if taking the brig in tow was only the remote, and not the proximate cause of the loss,” the underwriters are not discharged, is clearly not law.
    It is wholly immaterial, whether the loss be occasioned remotely, approximately, or not at all, by a deviation. The law is,.that where there is a deviation from the terms of the policy, by- which the risks of the insurers are increased, such deviation is itself a-discharge from the policy, and the underwriters are not liable for any loss which may happen after the deviation, whatever may be the cause of such loss.
    This point is expressly so decided'in relation to this boat taking the brig in tow, in the case of Herman, Briggs & Co. v. 
      Marine Insurance Company, 15 Louisiana Rep. 516. It is so decided in Lawrence v. Scabolham, 6 East, 52, 53, where merely slackening sail to convoy a prize, was declared a deviation which canceled the policy. It is so decided in every case of a departure from the course, or of an unnecessary delay of the voyage, amounting to a deviation from the contract of insurance, by increasing the risks.
    The next charge, “ that if the loss was occasioned by an accident or misfortune insured against, the jury must find for plaintiff,” is not law, if taking the brig in tow discharged the policy. It is the same charge with the next preceding, only more broad. It assumes that if the loss was occasioned by a peril of the river, the underwriters are liable, even though the having the brig in tow were the proximate cause of her being sunk in the storm. It was indirectly charging the jury, that taking the brig in tow, did not in this case, discharge the policy. The last charge is also clearly erroneous and improper.
    1. In the conclusion it charges the jury with a matter of fact, to wit, that the taking the brig in tow, was the act of the captain ; and taken in connection with the first charge, ihe jury understood it to be the misconduct which is there charged, not to be a discharge of the policy, if only the remote cause of the loss.
    2. It leaves it to the jury to find that the captain was the agent of the insurance company, when there is no proof in the cause tending to show that fact, and when it appeared in fact, that the captain was the agent of the plaintiffs, being their carrier and responsible to them as such, for any loss which might happen by his misconduct as carrier.
    3. The charge is in the alternative.
    1. That if the captain was the agent of defendants, then his act in taking the boat in tow does not discharge the underwriters.
    '2. Or if the defendants, by advertisement or otherwise, appointed her as a suitable boat for transporting cotton, then the act of the captain in taking the boat in tow, does not discharge the underwriters.
    
      As to the first alternative, there is no pretence that the defendants were the owners of the boat, and the captain their agent, or that the relation of principal and agent existed between them in any sense, no proofs tending to show such relation. The charge, therefore, was wholly abstract, and intended for no purpose but to embarrass or mislead the jury. If the captain had been the agent of the defendants, and the defendants the owners of the boat, and the captain, acting within the scope of his agency, had taken the boat in tow, in that case it might be true that the owners, being also the underwriters in the policy, as insurers could not set up the taking the boat in tow as a deviation.
    But as a general proposition of law, it is not true that if the captain was an agent for th'e defendants, and took the boat in tow, without their knowledge or consent, that as insurers they would still be liable. But this alternative of the charge is erroneous, because it is a mere abstract charge, and because it charges as a matter of fact, that it was the act of the captain, (the taking the brig in tow.)
    As to the second alternative, the proof in the record is, the admission of the defendants that the Fort Adams was among the list of boats advertised by the insurance companies, at New Orleans, as suitable for transporting cotton, or rather such as were seaworthy, and they were willing to insure upon. The defendants not only admitted this, but they were at the expense and trouble of proving that she was a sound, new boat, every way seaworthy, and therefore very unlikely to have been sunk in the storm, but for having the brig attached to her.
    It will be recollected the policy is a policy upon all seaworthy steamboats, and not a policy upon any one particular boat, or upon the Fort Adams. How advertising, or otherwise admitting a list of vessels to be seaworthy, and such as insurance companies are willing to insure upon without proof of seaworthiness, can have the effect to allow a deviation from the policy, is difficult to comprehend. If, after the Fort Adams had started on her voyage from Natchez to.New Orleans, with her load of cotton, she had left her course, and ascended the river to Louisville, and been lost reluming, between 'Vicksburg and New Orleans, would the advertisement that she was a suitable boat for transporting cotton have excused the deviation because it was the act of the captain ?
    As a principle of law, because the captain is an agent of insurers, or because his boat is appointed by insurers as suitable to transport goods, a deviation by the captain will not be excused on any such ground. This charge being in the alternative, if either alternative is erroneous, the charge is bad. 3 Kent, 252.
    On the part of the defendants, the court were requested to charge,
    2. If the jury believe, the steamboat on which the cotton was shipped and insured, delayed at Fort Adams to take in cotton on board a brig taken in tow, without proof of the consent of the defendants thereto, defendants were discharged.
    3. If the jury believe, . the risk of the insurers was increased by taking'the brig in tow, and that the consent of the defendants was not obtained thereto, defendants were discharged.
    4. If the jury believe, that the boat was sunk by having the brig in tow, in the storm which sunk her, defendants are discharged in the absence of all proof that defendants assented to take the boat in tow.
    These charges were given, but the court added thereto the following charge:
    “ That there must be proof by the plaintiffs that the defendants expressly gave their consent to take the brig in tow, or they must believe, from the evidence, that defendants, after the loss, acquiesced in it.”
    This modification of defendants’ charges by the judge is excepted to by defendants.
    It leaves it to the jury to find, from the evidence in the cause, that, after the loss, the defendants acquiesced in the taking the brig in tow; in other words, that if the jury should find, from the evidence, such an acquiescence after the loss, it would be the same as if there were proof by the plaintiff, that the defendants expressly gave their consent to take the brig in tow before the loss.
    It is difficult to discover upon what proof of acquiescence after the loss, the court based this modification of the charges asked by the defendants, unless it be upon the correspondence between plaintiffs and defendants for an arbitration or adjustment of the loss. And surely there is nothing in this correspondence, which tends to prove that the defendants, after the loss, acquiesced in the taking the brig in tow, much less is there anything which estops the defendants from setting up the defence, that they were discharged by the taking the brig in tow.
    It does not even appear, from the correspondence, or otherwise, that defendants knew or had discovered that the brig was taken in tow until after the suit was commenced. The captain’s protest is the only evidence which disclosed this fact to the company, and in the written agreement by which defendants’ counsel consented to permit the protest to be read in evidence as one of the preliminary proofs, there is a waiver of all objection to the plaintiffs’ failure to furnish this document to the board as one of the preliminary proofs sixty days before suit commenced.
    The correspondence consists of an application by plaintiffs to defendants, to submit the loss to arbitrators; an offer of the defendants to submit it, upon a legal rule of adjusting the loss, and a refusal of plaintiffs to accede to the offer. .Even if the defendants, at this time, had known the fact that the brig was taken in tow, an unsuccessful attempt to submit to arbitration the adjustment of a loss, is no proof of acquiescence in the taking a brig in tow.
    But even admitting there is proof of such acquiescence ;
    Does simple acquiescence in a deviation, by which a policy is discharged by the -underwriters, after their discharge, revive the policy, and make them liable for losses which happen after the deviation 1
    
    If so, what constitutes such acquiescence, what is its legal definition, what are the facts necessary to be proved, to establish such an acquiescence?
    In cases of a discharge from liability, as indorser upon a bill or note, for want of notice of dishonor, a subsequent promise, made with a knowledge of all the facts discharging the indorser, will either as an admission of notice, or as a waiver of the want of notice, revive the liability, but even in these cases, it was never yet said, that acquiescence after the discharge, in the failure of the holder to give notice of the dishonor, and that, too, proved by an offer to submit his liability to arbitration, which offer is rejected, would revive the liability of the indorser.
    There certainly is no case to be found, upon policies of insurances, where it has been decided that the liability of an underwriter, for a loss which happens after the policy is discharged by a deviation, will be revived, even by a subsequent promise, much less by a simple acquiescence in the act of deviation after the loss.
    In Lawrence v. Scabothem, 6 East, 52, where the under- * writers were discharged by the mere slackening of sail of the vessel insured, in order to convoy a prize she had taken, under a permission in the policy, “ to chase, capture, and man prizes;, ” suppose the court had been asked to charge, that an acquiescence after the loss, in the delay of the insured vessel to convoy her prize, evidenced by an offer to arbitrate the loss, would still render the underwriters liable, would such charge have been given ?
    If there is any such law, it is important that acquiescence should be defined, in order that underwriters may understand what. acts will amount to an acquiescence. 1 Phillips on Ins. 572. 3 Johns. Cases, 142.
    In conclusion, it appears to me clear, beyond all controversy, upon numerous cases in the books, that the taking the brig in tow, and delaying at Fort Adams to load her with cotton, were both of them acts of deviation, increasing the risks insured against by the policy, which discharged the policy.
    
      And it is equally clear, that the underwriters being discharged by tliese deviations, there is no fact set up in the charges given for the plaintiffs below, or in the modification of defendant’s charges by the court, which will excuse these deviations, or make the underwriters liable, notwithstanding the brig was» taken in tow without their consent.
    Nay, that the case here is stronger than any in the books, because it appears that the having the brig in tow was the immediate and proximate cause of the sinking of the boat in the storm. 1 Phillips on Ins. 480, 571, 572.
    If the risks insured against are increased by ,the assured or his agent, the captain or carrier, beyond the fair intention of the' policy, whether such increased risk arises from misrepresentation or concealment of facts by the insured; or by protracting the time or length of the voyage, as by a departure from the usual and customary track, or by unnecessarily delaying on the voyage, or by any act of retardation; any such increase of the risks is a variation from the terms of the policy, which discharges the insurers so soon as it happens.
    1. Concealment or misrepresentation is not excused, though attributable to the fraud or neglect of an agent. 1 T. R. 12. 14 Louisiana, 489. Or in no way referred to the subsequent cause of loss. 2 Strange, 1183. 3 Taunt. 37. 14 East, 494. Or was not concealed with fraudulent design. 3 Burrow, 1905. 1 Term Rep. 12.
    2. Protracting the length or time of the voyage; a deviation from the proper course of the voyage, discharges from the time of deviation. 2 Raymond, 840. Salk. 444. Lee v. Gray, 7 Mass. 349. Doug. 277. 2 Selwyn, N. P. 209. Retardation, 7 Cranch, 30. 12 Wheat. 383. 4 B. & A. 72. 5 B. & A. 45. 4 Camp. 150. Bea. 315. Park, 454. 3 Camp. 469, 503. 7 T. R. 162. 7 Bro. P. C. 470. 5 B. & C. 219. 4 Taunt, 511. 3 Camp. 437. 1 Peters, 104. 3 Wheat. 159. 7.Cranch, 26. 5 Durnf. & East, 580. 9 East, 199. 5 T. R. 581. Lawrence v. Sidebotham, 6 East, 52, 53. Herman, Briggs, & Co. v. Western Ins. Co. 15 Lou. Rep. 516. Hughes on Ins. 140, [184.] 189, [250.]
    
      2. Whether the risks are thus increased by the assured themselves, or whether it be by their agent, the captain, and with or without the knowledge and consent of the assured, the insurers are equally discharged.
    The captain is the agent of the assured, and they have their remedy against him as a carrier. 1 T. R. 12. 3 Kent’s Com. 252. J. M. Gilmore, et al. v. J. L. Carman, Opinion Book, B. p. 413. 2 Selwyn, 209. All tire cases above referred to of deviation from the course of the voyage, or retardation by the captain.
    / ' 3. And the insurers are discharged from the time of the act, which increases the risks, whether the act be misrepresentation, concealment, departure from the voyage, or delay on the voyage, and whether the act be the immediate or the remote cause of the loss, or not the cause at all. 2 Selwyn, 209. 2 Raymond, 840. Lee v. Gray, 7 Mass. Rep. 349. Salkeld, 444. 2 Strange, 1183. 3 Taunt. 37. 14 East, 494.
    '■ 4. Where the remote cause of the immediate peril which occasions a loss, is the negligence or misconduct of the master or crew, not amounting to barratry, even then the insurers are discharged. Cleveland v. Union Insurance Company, 8 Mass. 308. 2 Selwyn, 162. 6 Mass. 117. 1 T. R. 323.
    5. It is not pretended there was any act of barratry in this case, nor have plaintiffs alleged any breach of the policy by barratry. See 6 East, 52. ■ Hughes, 189, 250. 2 Selwyn, 162. 14 Mass. 1. 3 Peters, 222. 1 Nott & McCord, 155.
    
      fudge Winchester, afterwards added the following brief.
    1. The contract of insurance in this case, is to indemnify for losses on cotton shipped on any steamboat, whoever’may be master, on any voyage between Grand Gulf and New Orleans, happening by all perils on the river during the voyage— the 'assured warranting the seaworthiness of the boat on which the cotton is shipped — paying the premiums, and indorsing, on the policy once a month, the number of bales he has shipped,— and furnishing proofs of loss to the insurers before adjustment. 1 Phillips, p. 1 chap. 1, a contract uberimce fidei, p. 213.
    
      2. The extent and nature of the perils insured against, the portion of space over which, and the period of time during which, the underwriters insure against the perils, depend upon the intention of the parties upon a just and fair interpretation of the terms in which the contract is expressed. If a latent ambiguity exists, parol evidence may be resorted to, to explain the meaning of the terms, and show the true intent of the parties, but not to alter the intent by varying, adding to, or contradicting the plain sense of the contract. I Phillips on Ins. 43, sec. 10. Mumford v. Hallett, 1 John. Rep. 439. 7 T. R. 419. The Schooner Reaside, 2 Sum. Rep. 56. 1 Emer. 663, ch. 12, sec. 45. Turney v. Wilson, 7 Yerg. Rep. 540. Stover v. Whitman, lessee, 6 Biun. Rep. 516. ' 4 East, 135. 3 Cranch. Turner v. Burrows, 5 Wend. 541, 547. Parsons v. Miller, 15 Wend. 562. Adams v. Rockwell, 16 Wend. 285.
    Where usage is resorted to, to explain the terms of a policy, either as to the perils, the portion of space, or the period of time of such insurance, or any other terms in policy, it must appear to be so well settled, so uniformly acted upon, and of so long a continuance, as to raise a fair presumption, that it was known to both contracting parties, and that they contracted in reference to, and in conformity with it. Eager v. Altanlic Ins. Co. 14 Pick. 143-4. Snowden v. Warder, 3 Rawle, 101-7. Smith v. Wright, 1 Caines’s Rep. 44. Tanner v. Pacard, 2 Peters’s Rep. 148. Boring v. Gurney, 5 Pick. Rep. 16. Renner v. Bank of Columbia, 9 Wheaton, 5S1. Laiorence v. McGregort 1 Wright’s Rep. 192. Kendall v. Russell, 5 Dana', 501. Lawrence v. Stonington, 6 Conn. Rep. 529. Barber v. Brace, 3 Conn. Rep. 9. Pauli v. Leioin, 4 Watts Rep. 402. Thomas v. O'Hara, 1 Rep. Const. Ct. So. Car. 308. Callings v. Hope, 3 Washington C, C. Rep. 149. Hayward v. Middleton, 3 McCord’s Rep. 121. Brown v. Jackson, 2 Washington C. O. Rep. 24. 2 Washington C. C. Rep. 9. .1 Nott & McCord, 517. 22 Pick. 114.
    In the present case there is no evidence of any usage by which insured steamboats are allowed to take brigs in tow upon the river by the insurance offices at Natchez, or that the; contract was made in reference to any such custom. 14 Louis. Rep. 490, 491.
    As to the perils insured against in the policy. The clause which relates to perils, does not extend to such losses by perils of the river, as may be caused immediately by the negligence or misconduct of the captain or crew.
    1 Phillips, 576, ch. 13, sec. 1, the whole chapter; and it is doubtful whether they extend to such losses as are caused remotely by such misconduct or negligence. 3 Mason, 26. 3 Kent. Com. 415.
    But the court in Louisiana thought that there was in this case not only a variation of the risks insured against by protracting the time'; but also that the boat was sunk by a peril of the river caused immediately, and not remotely, by the negligence of the captain in not laying too in the storm, or at least unlashing the boat from the brig, which would have prevented the loss. Herman, et al. v. Western Marine Ins. Co. 15 Lou. Rep. 516. ,
    But the taking the brig in tow was a deviation increasing the risks, and which had discharged the underwriters previous to the loss, and that too, whether the loss was occasioned by it immediately, remotely, or not at all, it being impossible to say what agency it had.
    If it did not add to the policy a new and different peril from those intended by a fair interpretation of the contract, which means by “ all other perils,” all other perils of the river, yet it increased and varied the risks from those perils by protracting the time, and delaying the voyage. 1 T. R. 12. 2 Strange, 1183. 3 Burr. 1905. 5 T. R. 580. Lawrence v. Sidebotkam, 6 East, 45. 1 Douglas, 291. 2 Raymond, 840. Sel. 444. 4 Taunt. 511. 1 Phillips on Ins. 571, 688. As to the general words, 1 Phillips, 688 to 690.
    The owners of the boat and the captain of the boat, as common-carriers, are agents of the shippers as to the goods shipped, as will appear by the bills of lading.
    In this case the captain is the owner so far as appears from the evidence. 1 Phillips on insurance, 308, sec. 2. 3 Kent, 252. Opinion Book, B. p. 413.
    
      Advertising that the company would not insure on certain boats, did not discharge owners, freighters or shippers from the implied warranty of seaworthiness, as to all other steamboats; nor was it even evidence to be submitted to a jury “of an appointment of all other boats, as suitable for transporting cotton,” or “ of the captains and crews of all other boats being thereby made the agents of the company,” instead of agents of owners, freighters, and shippers. So far as the captain, as a common-carrier might be answerable for negligence to the shipper for losses happening to the goods, by the negligence of the carrier, or his agents, when such negligence should be the immediate cause of a loss by a peril insured against. 3 Kent, 252.
    If variation of the risks, and a loss by a peril caused by the negligence or misconduct of the captain, be one and the same thing, then under a marine policy in Great Britain and the United States, underwriters never can be discharged by any departure from the course of the voyage, or delay in pursuing the voyage, unless such variation is proved to be the immediate cause of the loss from the peril insured against.
    And if barely refusing to insure on certain boats makes the insurers insure against negligence or misconduct of the captain or crew, when the immediate cause of the loss is by a peril insured against, then under our policy the underwriters could never be discharged for any cause.
    
      Quitman and McMurran, for defendants in error.
    This cause comes up on a writ of error to the decision of the court below, in refusing a new trial under the statute.
    A bill of exceptions was taken by the plaintiffs in error during the progress of the trial in the circuit court, which upon the motion for a new trial, was by consent, referred to as containing the facts in the case, and is thus made a part of this record.
    Proposing in the conclusion to examine the effect of a motion for a new trial after a bill o'f exceptions has been taken, we will, for the present, consider the case as if it had come up on exceptions to the charges of the court.
    The substance of the charges seems to us more favorable to the plaintiffs in error than is warranted by law. The questions that arise from these charges^involve the construction of the contract or policy of insurance.
    In whatever view we regard it, it will be found of the broadest and most comprehensive character. It is in its terms an indemnity or guaranty against all risks. These are expressed in the policy. “Of the rivers, and fire, and all other perils, losses and misfortunes, that have or shall come to the hurt, detriment, or damage of said goods and merchandise, or any part thereof.”
    This language covers losses of every description which are not brought about by the acts of the assured or their agents. 1 Caines Cas. 337. 1 Phil, on Ins. 481. ' 2 Caines Cas. 77. 3 Kent’s Com. 291.
    It must be borne in mind that this was an insurance upon cotton, shipped in a boat publicly recommended by the underwriters. By publishing a list of rejected boats, the officers on the Mississippi gave credit to all other steamers not rejected. There is a difference between the responsibility of underwriters in the insurance of the ship or steamboat, and that of goods shipped. Abbot on Ship. 90, et passim.
    The master and crew are justly regarded as the agents of the owner of the vessel who appoints them, but not of the shipper of the goods. 3 T. R. 451. The insurers may therefore be held liable in the one case and discharged in the other, for the same act of the master of the vessel. 8 Cranch, 39. -
    If then the loss in this casejoccurred, no matter in what manner, without the agency of the assured or their agents, the plaintiffs in error are liable by the terms of this contract.
    If these were even doubtful, it is a settled principle that policies should be coustrued largely and liberally for the assured, and the advantage of trade. 2 Bin. R. 373. 6 Cranch, 274. 8 Wend. 160. 3 Kent’s Com. 291.
    
      The usages and course -of trade are implied parts of the contract, and underwriters cannot.plead ignorance of them. 1 Pet. R. 159. 4 Wend. 33. 9 Wheat. 588. 3 Burr. 1707. 1 Phil, on Ins. 489. 4 B. & C. 538.. 10 Eng. Com. Law Rep.
    It is shown, by the testimony of every witness who spoke to this point, that it was a part of the usual business of steamboats, to tow vessels up and down the Mississippi river. Even if the terms of the contract did not, as they clearly do, cover all losses not occasioned by the assured or their agents, this privilege of towing vessels, according to the course and usages of trade' would be implied in the contract. Not admitting that the opinion of the supreme court of Louisiana, Herman, Briggs & Co. v. Western Marine and Fire Insurance Company, to be founded-either upon principle or authority, we think it is not applicable to the present case.
    That was a case of policy upon the boat, taken out by the owners. It was considered that the master, the agent of the owners, and appointed by them, had by his act increased the risk of the voyage; and although it was shown in that case that it was usual for steamboats plying on the Mississippi, to tow vessels, yet Judge Eustis, who delivered the opinion of the court, expressly says, it was not shown, as it is in this case, that such usage was acquiesced in by the insurance companies.
    But we submit that this isolated case is not law, and should not be recognized as such by this court. It has been seen that the usages of trade form a part of such contracts, and is it possible, that, even when insurance is taken on a steamboat, that the policy would be forfeited by doing her customary aqd usual business'] Would the policy be avoided by towing a disabled steamboat, a flat boat, or a skiff, for a few miles, when it is well known to all the parties making the contract, that such constitutes á part of the usual business of steamboats'? Might it not be said that rounding to, for the purpose of taking in a passenger, increased the risk, and therefore discharged the underwriters'? It may be the interest and policy of Louisiana, to discourage the towage of sea vessels above their great market "town, but it would be in our opinion destructivó of the commercial interests of the other stales, bordering on the Mississippi river, to declare that steamboats can take no craft in tow without increasing a forfeiture of their policies. Would such result tend to the advantage of trade?
    It is however contended, by the opposite counsel, that this was a deviation. Nothing can be a deviation that is expressly, or by implication, within the contract.
    A deviation is defined to be any act of the assured or their agents, which increases the risk. 1 Phill. on Ins. 481.
    A deviation is sometimes defined to be a departure from the express or implied terms of the contract.
    The contract here, expressly covers all possible risk which it was competent to assume, and it has been shown, it was competent by the underwriters to guarantee against every kind of loss, except the acts of the' assured. But if not, certainly the ordinary and usual business of boats navigating the river, is impliedly contained in the contract. The underwriters will not be permitted to plead ignorance that such business was usual. Is it not implied in the terms of the policy, that the steamer Fort Adams, might perform the usual business of boats navigating the river? If so, there could be no deviation. 4 B. & C. 538, in 10 Eng. Com. L. Rep.
    The common sense of the country would be shocked by a rule that insurers of cotton, on steamboats, recommended by advertisement, are not liable, if the master should take in tow a barge, boat, or other vessel, or round to for a passenger, or perform other ordinary duties in the usual course of trade.
    The true question is, did the assured impliedly warrant against towing vessels? If they did not, the underwriters can only be discharged by showing that the risk was increased, or the loss occasioned by the acts of the assured. The court did not err in this case, in giving the first and third instructions asked for by the plaintiffs below. II Pet. R. 213. 3 Pet. 237. 1 Wash. C. C. R. 198. 5 B. & A. 171, in 7 Eng. Com. L. Rep.
    We have thus far examined this case upon the strict points of law, involved in the bill of exceptions. It should, however, be viewed in a more liberal sense.
    
      After the exceptions had been taken on the trial, the defendants below, not choosing to rely upon their exceptions, moved for a new trial.
    This, according to the well established rules of practice, was a waiver of the exceptions. ' The statute allowing an appeal or'writ of error to the decision of the’ court, in granting or overruling a motion for a new trial, does not change the effect of this settled rule of practice.
    The reasons are obvious. He who brings up his case on exceptions taken on the trial, rests his case upon the mere technical legality of his exceptions.
    But when he prefers to move for a new trial and address himself to the legal discretion of the court, he consents to throw his whole case upon the broadest principles of general justice, equity and’ law, before the court. It is an abandonment of technical rights, and an appeal to justice upon the whole merits of the cause.
    In the former case, if a technical error be found, the case must be reversed. In the latter, the court will inquire whether the justice of the case has bfien reached, notwithstanding erroneous decisions.
    This court has now under consideration the motion for a new trial. It must act upon this view of the case in the same manner as if the motion had been here made in the first instance.
    A new trial should not be granted.
    1. Because the record shows there have been three verdicts in this case for the plaintiffs below.
    
      2.- Because, in the rejected evidence of the plaintiffs below, it appears that the usage proven was acquiesced in by the insurance offices, and that in several similar cases, the loss had been promptly paid.
    3. Because it appears, from the letters and resolutions of the insurance company, that they acquiesced in their liability for loss, and promised to repair it upon the same principles upon which this recovery is had.
    
      4. Because the defence of deviation is not covered by their pleas.
    6.Because it appears by the pleadings, that it was not until after two verdicts, that the defence of deviation was attempted to be set up.
    6. Because it is for the interest of trade, and in favor of sound, policy, that- shippers of produce should be promptly compensated for losses occasioned by no act against which they could, protect themselves.
    7. Because a verdict, although it may have been against the charge of the court, will not be set aside, as against the weight of evidence, unless it be clearly so. Astor v. Insurance Co., 7 Cowen, 202, a strong case.
    8. Because the evidence clearly, shows, that the cause of the loss was the severity of the gale, (vide protest, admitted as evidence,) and it does not appear, from the testimony of any witness, that the ship was the proximate, or even remote cause of the loss.
    
      Montgomery and Boyd, for plaintiffs in error, in reply :
    Judge WinchesteR having fully discussed the points arising under the exceptions taken to the instructions of the court, and considering the true merits of the case involved in the motion for a new trial, I will confine my remarks, principally, to the discussion of that branch of the cause, after-noticing briefly the points made by defendants.
    We know the distinction, between a cause, on exceptions to the ruling of the court during the trial, and on motion for new trial; but do not admit, that under our practice or statute, a motion for a new trial amounts to a waiver of the exceptions taken during the trial. On the contrary, we consider the privilege of excepting to the decision of the court, on motion for a new trial, and assigning the same as error, is a cumulative remedy given the parties, to correct errors of the court below, . and relieving the case from the rules contended for by defendant’s counsel.
    If the instructions were favorable to the plaintiffs in error, as was asserted, and the verdict is contrary to the evidence and instruction, and such instruction stated the law correctly, we are entitled to a new trial of right. And we concede, that if the instructions in our favor were not law, and the jury disregarded them, as they had a right to do, the court should not grant the.new trial.
    What was the contract between the parties? Judge Quit-man contended, that the phrase used in the policy, “ Touching the adventures and perils which we, the assurers, are contented to bear and take upon us, in the voyage, they are of the river and fire, and all other perils, losses, and misfortunes, that have or shall come to the hurt, detriment, or damage of the said goods or merchandise, or any part thereof,” amounts to an agreement to indemnify the assured against all losses, &c., except such as arise from the fraud of the assured. The authorities quoted by him, to sustain the position, are too general and indefinite, and do not apply to this case. 1 Caines’s Cases, 337. 2 Johns. Cases, 77.
    From a careful review of all the authorities, Phillips says, these general terms, taken “in connexion with, and in reference to, the other parts, it is understood to cover merely perils similar to those specified, although they may not come precisely within them.” But we concede it does' embrace all perils, which can be legally covered. When we apply the rule to this case, the broad construction contehded for will not aid the defendants. For we expect to show, that the loss was not occasioned by a peril stipulated for in the policy.
    To sum up the testimony, it appears to be established, that the steamboat, at Natchez, took a brig in tow, and continued with it in tow, until the accident happened, which occasioned the loss. And Gillet testifies, “ that in bad weather, a loaded steamboat, having a brig in tow, would be more likely to strain, so as to cause her to leak, than without one.”
    We contend, that under such circumstances, taking the brig in tow was a departure from the contract, and discharged the underwriters. It was an increase of risk, not contemplated by the parties at the time of the contract. To this it is answered, that it was customary for steamboats to take sea vessels in tow ; and the nature of the contract embraces every customary course of trade, without being specially stipulated. We admit the rule, but deny that the facts were made out. The evidence offered related to a custom at New Orleans, and the opinions of the officers of the- insurance companies at that place, as to the liability of insurers for losses, under such circumstances. These depositions were not admitted, and for the reason which we think conclusive, that they could not adopt a custom at New Orleans to affect the rights, or explain the contracts of the people of Natchez. <
    There was no effort to prove a custom for steamboats, under-insurance in Natchez, engaging in the business of towing vessels, with the knowlege and acquiescence of the officers of the insurance companies. There may be good reasons for the acquiescence of the insurance companies of New Orleans, which cannot apply to the companies of Natchez; and as they contract with reference to such custom, they graduate their premiums accordingly.
    Another answer to this is, that the taking the brig in tow was. the act of the master, and not of the defendants in error, and that the master was not their agent, nor are they responsible for any act of his, which may have been the remote or proximate cause of the loss. We reply, that the owner of the vessel is the agent of the shipper, and if the owner be not the captain, then the captain is the agent of the owner, and, therefore, the sub-agent of the shipper. 1 Phillips on Insurance, 586.
    Again, the assured is under an implied warranty, that the vessel in which he ships goods is seaworthy. The term seaworthy includes not only the condition of the vessel, but the commander and crew. “And the implied warranty is the same, on the question respecting goods and freight, as it is respecting the vessel.” 3 Mass. Rep. 331.
    A vessel was not considered seaworthy, the captain of which, from ignorance of the coast, mistook Barcelona for Tarragona, 14 East R. 48L
    
      The assured must employ a captain of skill, and good moral character. 12 J. R. 133.
    When it is customary to employ a pilot, the insurers will be discharged if there be no pilot on board. 1 Phillips Ins. 315.
    We admit the intention of the parties to the contract to be collected from the language used, the course of trade, and other circumstances which the parties are reasonably presumed to have had in contemplation at the time of contracting, must control the construction. But, without proof, we do not think it the province of the court to consider that the accidental occurrences of towing vessels constituted a part of the risk intended to be embraced in this policy. The court is not presumed to know these facts ; and the statement in the record of evidence by which such a custom might have been proved, should not be considered as part of the case. 14 La. R. 490. 15 La. R. 516. 1 Phillips Ins. 481-9.
    The true objection- to a deviation is that the party contracting has voluntarily substituted another voyage for that -which-has been insured. Ibid. 485.
    We have not contended that the insured are responsible for remote causes of loss growing out of the carelessness, or misconduct of the officers or crew of the boat, unless it be from want of skill, &c. such as is included in the warranty of seaworthiness.
    We have never made this defence until the last trial, because we were always ready and- willing to settle on fair and liberal terms, as is perfectly evident from the correspondence before suit, and the company were content with, and would have paid the second-verdict,-if the defendants in error had submitted to it. But the defendants in error having shown from the beginning, a determination' to exact every cent they, could by skill and.ingenuity recover, we felt constrained, in self-defence, to make every legal defence the case admitted. The credit of the company was sufficient inducement to waive this defence, as she could, when in good credit, with a character for submitting to losses without relying on nice rules of law, have made more than the loss sustained in this case within the time it would require to litigate it. But the defendants in error have, by the rigorous prosecution of this suit, broken down the character of the company, and put it out of their power to recover from the loss.
    The defendants in 'error complain that the defence as to deviation should be urged against them at this late day, after three verdicts in their favor, and insist that we acquiesced in their claim for loss, and should not now be heard to deny that we were liable to some extent at least. And in the same argument they contend they are not bound by the preliminary proof of extent of damage laid before the company, when they discover other available proof which will enhance their demand. Now we humbly conceive that the gentlemen are as much bound by their conduct during the correspondence for adjustment previous to suit as the company. Yet, on the last trial in this court, they contended, and produced authority to prove, and this court decided that they were not bound by the preliminary proof, but might mend their hold if they could; which we do not contest, but desire to make available.
    But we contend that the company was discharged by the conduct of the commander’s taking the brig in tow. And the objections urged against this defence are not tenable. The voluntary neglect of the company to plead this defence on former trials does not deprive them of the right to rely on it at any time before final judgment. It was a matter of discretion in the court to allow the amendment, and, right or wrong, this court cannot correct it now. Besides, there is no evidence that the company knew that the steamboat was uninjured by sinking. And that there was good reason to believe the loss was attributable to having the brig in tow. It is never too late to obtain leave to amend pleadings before verdict. And a voluntary neglect to insist on a defence without explanation, is no evidence of a waiver of such defence; and does not, in the remotest degree, preclude the party from urging such defence, when it is convenient for them to prove it. We now urge the defence as a complete bar to the action, and insist on the decision of the point.
    
      
      Winchester, in reply to Quitman and McMurran.
    
    1. Mr. Quitman says, the writ of error is confined solely to the refusal of the court below to grant a new trial, and if that refusal is not erroneous, this court could not reverse for errors excepted to, eith.er in the charges of the court to the jury, or in erroneously admitting or rejecting evidence on any other error in the record.
    Not conceding that the court are not bound to reverse for any error in the record, when a motion for a new trial has been overruled, which would be a good cause for reversing if no motion for a new trial, yet even admitting such a position, it is not easy to conceive a case where improper evidence had been admitted or rejected, or charges to the jury had been erroneously given or rejected, in which such errors would not themselves make the refusal to grant a new trial erroneous, unless where it could be made to appear certain, that the verdict of the jury could not in any way have been influenced by such errors in the charges given or refused.
    But in this case, if the taking the brig in tow was a variation of the policy, then the verdict of the jury was clearly against the law and evidence in the case, and the erroneous charges given by the court, and excepted to by the insurance company were directly calculated to mislead, and plainly did mislead the jury.
    2. As to this defence not being set up until the third trial, under the statute of the state, defendants were entitled to amend their pleadings so as to let in a meritorious defence at any time before a final trial of their cause, and it cannot be assigned for error that the court below allowed such amendment.
    This was decided by this court in the case of Ruffin v. Riley, in which case, after three trials in the circuit court, and one in the supreme court, the court below allowed the defendant to plead non est factum, although it was even repugnant to the pleas in the former trials, which had admitted the execution of the bond, yet this court decided the amendment was properly allowed by the court below.
    3. Mr. Quitman says the general clause against all other perils, embraces all perils not arising from the fraud of the captain, but that it covers perils arising from the misconduct or negligence of the captain and crew. Phillips on Insurance, in his chapter upon the perils insured against, lays down a directly opposite doctrine,' and shows that the general expressions only mean perils of a like nature and kind with those previously specified.
    4. Mr. Quitman insists, that the better authorities are, that when a peril insured against is the proximate cause of a loss, but the remote cause of the loss by such peril is the misconduct of the captain and crew, there the underwriters are not discharged. Admitting this to be true, yet it will be seen, in the case in 15 Louisiana Reports, that the supreme court in Louisiana, not only decided the. taking the brig in tow was a variation from the policy, and discharged the policy before any loss happened ; but they also decided the negligence of the captain in proceeding on the voyage during the storm, with the brig lashed to the boat, was the immediate and not the remote cause of the loss by the peril insured against; and according to all the authorities, English and American, also discharged the underwriters.
    5. As to usage, the only evidence offered was properly ruled out, and plaintiffs were so well satisfied of its inadmissibility that they took no exceptions. No such general and universally known established usage was attempted to be shown, as is required by the authorities; nor, as a local usage, was there any proof offered to show it was known to and acquiesced in by the Natchez Insurance Company. See brief on the character of the usage admissible in proof to explain the intention of the parties to a contract of insurance. See case in 14 Louisiana Rep. in reference.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action upon a policy of insurance, instituted to recover damages for a loss sustained on three hundred and forty-one bales of cotton, shipped upon the steamboat Fort Adams. The policy was in the usual form, and extended to all kinds of goods and merchandise, laden or to be laden on board any good steamboats, the adventure to begin immediately upon the loading thereof, and to continue until such goods and merchandise shall be safely landed at New Orleans; the insurance to extend from Grand Gulf, in Mississippi, to New Orleans, with privilege to touch at any port or place usual on said voyage. The insurers agreed to bear the adventures and perils of the river, of fire, and all other perils, losses, and misfortunes that had, or should come to the hurt, detrimentor damage of said goods and merchandise, or any part thereof. And in case of any loss, or misfortune, it should be lawful to and for the assured, their factors, servants, and assigns, to labor for the defence, safeguard and recovery of the goods, and the assured engaged to do so, at the expense of the insurers, without prejudice to the insurance.

The steamer Fort Adams, in the month of December, 1836, being partly loaded with cotton, left the mouth of Cole’s Creek, proceeded to Natchez, there took in tow the brig Auguste, went on to Fort Adams, and remained there'about twenty-four hours, during which, more cotton was received both on the brig and the boat. She then proceeded on her way to New Orleans, but met with a heavy storm, which compelled her to lie by one night. The next morning, the storm having somewhat abated, she again got under way ; but the storm increased in violence, the brig and boat both pitched and labored excessively, when it was discovered that the boat was leaking, and the. hold rapidly filling with water. In this emergency they prepared to make for the shore, directing the crew of the brig to prepare to cast off. This, however, to use the language of the protest, “ was not done until they came very near the shore, when the brig unlashed and came to anchor, and the boat shooting ahead took the ground,” and afterwards sunk.

A correspondence took place between the insured and the insurers, relative to the adjustment of the loss, but failing to come to any agreement, this suit was brought. The cause has already been twice to this court, and was each time reversed and remanded. On the first occasion, the rule by which the damages should be estimated constituted the point of inquiry; on the second, the criterion by which the damage under that rule was to be ascertained, was the question to be determined. 4 How. 63. 5 How. 744. '

Upon neither of these occasions were the points discussed, which are now submitted for consideration. Then it seems to have been taken for granted, that the defendants were to some extent liable; now, however, it is insisted that they are not at all responsible.

Questions of insurance are with us of rare occurrence, and the principles which govern them are not familiar to those whose minds are given to other branches of the law. Hence it is probable, that the views of counsel have become more extended, as they have proceeded in the investigation, and they have ascertained the application of principles, which in the beginning they did not perceive. And hence the case assumes, in their view, an entirely new aspect.

It is insisted by tire counsel of the defendants in error, that this view of the case is excluded, by the correspondence between the parties, before the commencement of the suit, that the plaintiffs in error then admitted their liability, and they should be holden bound by that admission.

The correspondence contains various offers of adjustment, propositions were submitted by the one to the other, but no one which met the concurrence of both parties. In the letter of the 28th March, 1837, from the plaintiffs in error, it is stated that the company are tp indemnify Stanton, Buckner & Co. all damages sustained by a peril of the river,” when proof of a specified description is afforded. .In the whole correspondence the idea is held out, that they are willing to settle upon certain terms, and certain principles, which were rejected by the defendants in error. Upon the failure of the negotiations for an amicable adjustment, the parties, in our opinion, were remitted to their original legal rights, and we are bound to make our decision upou that basis.

The defence now set up is that the taking the brig in tow, was a deviation from the terms of the contract of insurance, which so varied and increased the hazard as to discharge the underwriters.

Policies of insurance create reciprocal rights and obligations, they form a class of contracts in which the utmost good faith, uberrima fides, is requisite on both sides. Each party is bound to fulfil the warranties, either expressly entered into, or implied by the law. On the part of the assured, certain warranties are implied, which- enter into and form part of the contract, and by which he is as much bound as if they were expressed. Of these are seaworthiness, proper documentation, not to deviate, and that the goods shall be properly stowed. 1 Kinne, 505, 536. Sherman’s Digest of Marine Insurance, 193. 1 Phillips on Ins. 306. Ibid. 21.

The warranty as to proper documentation does not extend to the owner of goods, but this seems to be the only exception in his favor. 1 Kinne, 508. On the subject of seaworthiness, some remarks may be made in a subsequent part of this opinion; at present we are dealing only with the question of deviation. Phillips, in the passage just referred to, says, “the doctrine of deviation is founded on an implied understanding and agreement between the parties, arising on the fact of making the assurance, that the adventure is to be pursued in the usual manner, or that the risk shall be such as vessels are usually subject to, and not voluntarily varied by the assured or those who represent him.” And the doctrine applies as well to the navigation of rivers, as of the ocean. 1 Phillips, 571. Gazzam v. Ohio Ins. Co., 1 Wright, 262.

Any voluntary deviation is a change of the risk, it forms a departure from the contract, and an attempt to substitute another. It is not necessary that the risk should thereby be increased, it is sufficient if it be changed. Lord Mansfield laid down the rule, “ that the true objection to a deviation is not the increase of the risk; it is, that the party contracting has voluntarily submitted another voyage, for that which has been insured.” Lavabre v. Wilson, 1 Doug. 291. In 7 Cranch, 30, the supreme court of the United States says, “that the discharge of the underwriters from their liability in such cases, depends not upon any supposed increase of risk, but wholly on the departure of the insured, from the contract of insurance.” The effect of a deviation is the discharge of the underwriters. But by his breach of this implied warranty against deviation, the owner of the ship becomes liable to the owner of the goods for their loss. 1 Phillips, 485. 12 Conn. Rep. 410.

It thus becomes necessary to decide whether taking the brig in tow amounted to a deviation, there being nothing in the policy which expressly authorized it. In our opinion it did. Mere delay — taking on board more cargo than is permitted by the policy — shortening sail to keep company with a prize, are all instances which have been bolden to amount to a deviation. 7 Cranch, 26, 487. 1 Kinne, 539. 1 Phillips, 546. Any act which changes the risk, produces that result. “ The shortness of the time or of the distance of the deviation, makes no difference as to its effect upon the contract; if voluntary and without necessity, it is the substitution of another risk, and determines the contract.” 3 Kent, 313. 9 Mass. 449. This point, in a nearly parallel case, was recently decided in the supreme court of Tennessee. It was there holden, that “ to lash a flat-boat descending the Mississippi, laden with produce, to a steamboat, to be towed, is a.departure from, and a violation of, the contract of insurance.” Stewart v. Tennessee Marine and Fire Insurance Co., 1 Humph. 242. The only difference between that case and this is, that there the boat'insured, was attached toa steamboat, here the steamboat insured took- a brig in tow. In principle there is no distinction.

But the case of Herman, Briggs & Co. v. The Western Marine and Fire Insurance Co., 15 Curry’s La. Rep. 516, is still more directly in point. That was an action upon a policy of insurance, upon this very boat, the Fort Adams, instituted to recover for the loss of the boat, at the same time at which this suit is brought, to recover for the goods. Of course, the prominent facts are the same. That court held.the underwriters to bé discharged, upon the ground that there had been a deviation.

It was attempted, in argument, to weaken the authority of this case, by showing that it was founded upon the peculiar laws, and peculiar views of policy of that state. In this we cannot concur. It is true, that the civil code of Louisiana is cited, in support of a single principle in the case, in reference to usage ; but as to the question of deviation, it is made to rest upon general principles, recognized in the common law authorities, and regarded as of general, if not universal, application. Moreover, a' late learned and highly valuable writer, who has indulged very liberally in criticism, of the cases which, in his view, have departed from the true principles of the law of insurance, has cited this case, with seeming approbation, and without calling in question its authority, or its conformity to the rules of the common law. 1 Phillips on Insurance, 571. We do not, therefore, feel at liberty to disregard it, and are inclined to give it the weight to which we think it justly entitled.

It is not attempted to elude the force of this decision, and, consequently, of the general doctrine which it affirms, by drawing a distinction between an insurance upon a vessel, and an insurance upon the cargo. In the former instance, it is said, the master and mariners are the agents of the assured, the owners of the vessel; but in the latter, they are not the agents of the owners of the goods. No authority was.cited in support of the position, except Abbot on Shipping, p. 90, et passim. In that author it is very broadly laid down, that the master and crew are the agents or servants of the owners of the vessel; and this is no doubt true. But it by no means follows, that they are not likewise, the agents of the assured.

The objection is novel, and we have been at much pains to ascertain to what extent it is well founded. Almost numberless actions have been brought upon policies on goods, in which deviation has been set up as a defence, yet we have seen no case, in which there was an attempt to defeat the defence, upon this ground. See Columbia Insurance Company v. Catlett, 12 Whea. 383. Brown v. Girard, 4 Yeates, 115. 7 Term Rep. 501. 1 Maul. & Sel. 46. This list might be greatly extended, and we have examined many other cases on the point of deviation, in none of which has the distinction been taken. This, though a strong, is not a conclusive argument against it.

In Lodowicks v. Ohio Insurance Company, 5 Ham. 274, a cas.e which arose under an insurance of com upon a flat-boat, the rule as to the agency is very clearly stated. It is said, that the owner ,is the agent of the shipper, for transporting the goods, and employs, in the management of the business, other agents, the master and mariners, for whose conduct, in that employment, he is accountable to the shipper. Marsh. Ins. 225. “ The captain and mariners, navigating vessels in which insured property is laden, are, in legal contemplation, the agents of the; assured, in reference to the goods, insured.” The rule is laid down by Phillips, “ that after abandonment, the assured becomes the agent of the underwriters;” or, as it is stated in another passage, “ the assured, by the abandonment, becomes the immediate agent of the insurers, and the captain the sub-agent of the assured.” Yol! 2, p. 439, 449. The same rule is laid down in 7 Johns. 514. In Scheifflin v. New York Insurance Company, 9 Johns. 21, the court says, “ The master is the agent of the assured, until an actual and valid* abandonment, and they ought to bear the consequence of his neglect.” The same, principle is re-asserted, in Grim v. Phoenix Insurance Company, 13 Johns. 451. The supreme court of the United States, in substance, says, “ By abandonment, the underwriters aje substituted for the assured, and the master, although the agent of the owners until the loss occurs, becomes, by abandonment, the agent of the underwriters. The interest in the salvage is transferred to them, and the agency is transferred with the subject; and the agent becomes responsible to the underwriters, for the faithful discharge of his trust. No action could b.e. sustained, against him by the assured, for the proceeds, or a,ny misconduct in the management thereof.” Columbian Insurance Company v. Ashby, et al., 4 Peters, 139. 2 Phill. 442. These, except the last, were all cases of insurance upon the cargo.

The principle upon which they rest is very obvious. The master, and mariners are intrusted with the goods, and are the agents of the owners. The assured are the owners until a valid abandonment, the insurers become, so after that event.

The special clause in the policy, that in case of loss, the assured and their servants shall labor for the defenfce, safeguard and recovery of the goods,” is introduced expressly with a view to this rule. Without this clause-, the duties of the assured would cease with the abandonment; with it his efforts are still to be exerted, but those exertions are not to be construed to his prejudice. 4 Peters, 139. It is the practice in some policies, where it is desired to secure the distinction, the existence of which is contended for in this case, to insert a clause by which the conduct of the agents, in reference to the cargo, is insured against, but not in reference to the ship. 1 Phil. 578.

It would seem to be unnecessary to pursue this inquiry farther. But there is a class of cases which seems to extend the limits of the liability of insurers, for the acts of masters and mariners. They go to fix this principle, that when a loss occurs, the proximate cause of which is a peril insured against, the insurers will be liable, though the remote cause be the act of the agent of the assured, or arise from his negligence and misconduct. In Bishop v. Pentland, 7 B. & C. 219, the rule is thus stated, “ the underwriters are liable for a loss, the proximate cause of which is one of the enumerated risks, though the remote cause may be traced to the master and mariners.” See 2 Barn. & Ald. 73. 5 Barn. & Ald. 171. Patapsco Insurance Company v. Coulton, 3 Peters, 222. Waters v. Merchants Louisville Insurance Company, 11 Peters, 213. But this doctrine has never been extended to a case of voluntary deviation, and seems to be in its nature inapplicable to cases of that kind.

Phillips concludes his remarks on this class of cases, in these words. “But the application of these principles to particular cases, does not seem to have been very definitely settled. It is plain that the master is the agent of the owners, both of the ship and the cargo, to more purposes than the mariners. ■ Chief Justice Gibbs has also glanced at a distinction in this respect, between the owners of the ship and the owners of the cargo. Speaking of a loss by the misconduct of the master and mariners, he says, “ It is extremely hard that the owner of goods should be responsible for a loss, occasioned by an act in which he did not concur, and by which he was alone the sufferer.” Soares v. Thornton, 1 Moore, 385. Reported also in 7 Taunt. 627. Sir William Scott also notices the same distinction. The Adonis, 5 Rob. 286. But upon what principles, and to what extent, such a distinction is to be made, has not as yet been definitely determined. The owners of the ship are the agents of the shipper, for transporting the goods, for which purpose they employ other agents, namely, the masters and mariners, for whose conduct in this employment, they are no doubt answerable, in a greater or less degree, to the shipper. And it seems to be more generally implied, that, in respect to the acts of the agents, for which the owners of the ship are answerable to the shippers, the insurers of the goods are not answerable.” Cleveland v. Union Insurance Company, 8 Mass. 321. 1 Phil, on Ins. 225. The concluding paragraph excludes the idea that the principle can extend to a case of deviation, when it is voluntary. There not only the remote, but the sole cause, is the act of the master and mariners. It is also clear that for such an act of deviation, the owner of the ship would be liable to the owner of the goods. Norton v. Hobard, 8 Pick. 159. 1 Phil. 485. According to many of the cases, this last principle may be propounded in more comprehensive terms. That the insurer is only liable for extraordinary perils, unless by express stipulation, and not for such as proceed from the negligence, un,skil-fulness, or misconduct of the master and crew. 8 Mass. 322. 5 Ham. Ohio Rep. 276. 1 Phil. 625. For these last the shipowner is responsible, as a carrier, and the liability of the insurer does not commence, until that of the carrier ceases. But this I regard as the debatable land, and in cases of this description the doctrine of losses, from proximate or from remote causes, seems to vibrate and hang in suspense.

The point of voluntary deviation, however, is exempt from any such perplexing refinements and distinctions. 1 Humph. Ten. Rep. 248.

In regard to the remarks stated in the above extract, to have fallen from Chief Justice Gibbs, upon the distinction under consideration, there are, it seems, two reports of the case. The one in 7 Taunt. 627, is the only one I have been able to find. It was an action on a policy of insurance, covering barratry expressly, and the declaration averred a loss by barratry; the action was by the owner of the goods. The vessel was under a charter of affreightment, and the party wh.o chartered her was on board; the general owner was likewise on board. On one occasion the owner took the command of the vessel, and the captain assenting, wilfully ran her ashore, and the goods were lost to the plaintiffs. The material question was, whether this was a loss by barratry. The chief justice says, “Barratry is an act of fraud, not directed against the owner of the goods, which are lost, but a fraud against the owner of the ship; and however innocent may be the owner of the goods, who seeks to recover against the underwriter, yet if the owner of the ship concur in the act which caused the loss, it takes from it the character of barratry; for the very definition of barratry is, a fraud by the master and mariners against the owner of the ship.’' But it was holden that the freighter was for the time the owner of the vessel, and that as he did not consent to the act of fraud, or concur in it, the act of the orignal owner and master together, was a complete act of barratry. It fell,’therefore, within the peril insured against. In conclusion, the judge remarked, “we cannot regret this result, for it is a very hard thing, when a person has insured his goods, to find himself exposed to a loss, to which he supposed his indemnity would extend, but in which he is frustrated.” The whole case clearly shows, that if it had been holden not to be barratry, the plaintiff would not have been permitted to recover. It therefore attempts as there reported, to introduce no distinction in this particular, but it lets the law remain undisturbed, as previously settled.

But if intended by the learned judge to introduce a distinction, it goes no farther than the case of barratry. That according to the late English cases, and to most of the American cases, is an offence wjaich can only be committed against the owners of the vessel, though the New York cases extend it likewise to the owner of the cargo. Cook v. Cour. Insurance Company, 11 Johns. 40. 1 Phill. on Ins. 603, et seq. 7 Taunt. 627. 11 Peters, 220. Barratry is not covered by the ordinary provisions of a policy; it requires an express stipulation to comprehend it, and without such stipulation the underwriters are not hound. •13 Peters, 421. 3 Kent, 304. 1 Kinne, 542. In such case where the owners of the vessel lose their claim to indemnity, under the policy, the hardship of making the owners of the goods likewise lose their insurance, does appear to plead strongly for a relaxation of the rule in their favor. But under even those circumstances, it seems to us belter to require the introduction of an express clause into the policy of insurance against barratry, or of protection of the owners of the goods, when no room would be left for doubt, and the insurer, by an increase of premium, would be compensated for the increase of risk. 1 Phil. 618. But we have nothing farther to do with this point, than to distinguish it from the case before us.

After this examination of the general doctrines involved in the case, it is not necessary to enter upon a close consideration of the charges given by the court below. It will be easy to perceive in what they differ from the principles here laid down, and upon any future trial, they must be made to conform to them.

The advertisement referred to in argument, that the company would insure goods upon certain enumerated boats, could at most only amount to a waiver of the implied warranty of seaworthiness. We do not see, therefore, that it can have any influence in the cause.

In regard to the question of usage, there is no proof of any usage on this subject, at Natchez, where the defendants reside, and where the contract was made. • The usage of the insurance offices, at New Orleans, could not affect them, neither could the usage of towing boats upon the river by steamboats, unless it was shown to be so general, and so well known, that it was fair to presume the parties contracted with reference to it. 2 Wash. C. C’. Rep. 257. 1 Gal. 444. Law Reporter, Yol. 6, No. 3, p. 117. 1 Phil, on Ins. 54.

The judgment is reversed, and a new trial awarded.  