
    Cincinnati Mutual Insurance Company v. James May. Firemen’s Mutual Insurance Company v. James May.
    If a steamboat or other vessel be overloaded or unduly laden, she is unseaworthy. But whether or not unduly laden depends upon the capacity of the boat or vessel, not upon the depth of water upon the shoals and bars in the river upon which she is being navigated.
    The capacity of the craft, not the capacity of the river, is to control in deciding a question of this character.
    If a boat or vessel insured meets with a disaster, the captain and crew ara bound diligently to labor for the recovery of the property; but the insertion of a clause in the policy requiring such labor and effort, does not impose any additional duty upon the assured.
    It is not proper, as a general rule, to inquire of a witness upon the stand, who has heard the testimony in a case, his opinion, from the knowledge he derives from the testimony, as to a particular fact, which is material in the determination of the issue in the case.
    Error to the superior court of Cincinnati.
    The original suits in these two cases were commenced on the same day, by James May, against the defendants in error, in the superior court of Cincinnati. The writs bear date July 24, 1647, returnable forthwith, to the June term of the court, which seems to have been continued until after the date and service of the writs.
    *In the first case a declaration was filed on August 27,1847, in assumpsit, upon a policy of insurance, bearing date February 20, 1846, by which the company caused to be insured upon the steamboat Olive Branch, $3,000, continuing the adventure from twelve o’clock of said 20th day of February until noon of February 20, 1847. It was charged that the said boat was lost by the perils insured against, on August 7, 1846.
    A similar declaration was filed on the same day in the case against the Firemen’s Mutual Insurance Company, upon a policy bearing date December 2, 1845, whereby the sum of $3,000 was insured upon the same boat, the risk to commence at noon on November 28, 1845, and to continue until noon of November 28, 1846.
    In each case it is stated that the boat was to navigate the usual western waters, with certain exceptions stated in the respective policies.
    A plea of the general issue was filed in each case, with notice of set-off, etc.
    At the January term of the court, 1850, the cases were submitted to separate juries, and in each case the jury returned a verdict for the defendant in error. TJpon the return of each verdict, a motion was made for a new trial, and the reasons assigned were:
    “1. That the court erred in its rulings on the trial, as to the admission and rejection of testimony.
    “ 2. That the court erred in its charge to the jury.
    “ 3. That the verdict is against the evidence.”
    These motions were overruled by the court, and judgments entered upon the verdicts.
    ■Whereupon the plaintiffs in error excepted to the several rulings of the court, and their bills of exception were allowed, sealed, and made part of the record.
    These bills of exceptions, with the papers and depositions, are extremely voluminous, and it would be useless to insert *them at length, as it is believed that enough appears in the opinion of the court to lead to a correct understanding of the points decided. The errors assigned in each case are, in substance, that the superior court erred in overruling testimony offered by the plaintiffs in error: in refusing to charge the jury as requested; in the charge actually given; and in overruling the motions for a new trial.
    Coffin & Mitchell, for plaintiffs in error.
    I. The question propounded to Ross was proper, and the court erred in sustaining the objections. Ross was an expert in the true sense of the term. 1 Smith’s L. C. 286, 287; 1 G-reenl. on Ev., 5 ed. 555, n. 1; Steamboat Clipper v. Logan, 18 Ohio, 394, 396.
    II. The policy in each case contains this clause:
    
      “And in case of loss or misfortune, as aforesaid, it shall bo the duty of the assured, his agents or assigns, to uso every practicable effort for the safeguard and recovery of the said steamboat; apd if recovered, to cause the same to be forthwith repaired; and in case of neglect or refusal on the part of the assured, his agents or assigns, to adopt prompt and efficient measures for the safeguard and recovery thereof; then the said insurers are hereby authorized to interfere and recover the said steamboat, and cause the samo to be repaired for account of the assured ; to the charges of which the said insurance company will contribute in proportion as the sum herein insured bears to the agreed value in this policy, but in no case whatever shall the assured have the right to abandon, until it shall be ascertained that the recovery and repairs of the said steamboat are impracticable, nor sell the wreck, or any part thereof, without the consent of this company.”
    The court charged that this clause “rendered the insured no more and no less responsible for the negligence of the officers and crew of the boat, in saving the boat after the disaster, than he would have been if no such clause had been inserted.”
    *In this we think the court erred.
    The testimony justified the defendants in fairly raising on the trial, to the court and jury, under the above clause in the policy, these three questions:
    1. Whether the insured, by his agent, did use every practicable effort for the safeguard and recovery of the vessel.
    2. Whether, if he had adopted prompt and efficient measures for that purpose, she could not have been saved with but a partial loss; and,
    3. Whether, if he did not adopt those measures, he could recover for a total loss,
    The verdict in each case was for a total loss. 1 Marsh. 334; Mitchell v. Eddie, 1 Term, 613.
    2 Arnould on Insurance, 773, 1086. Upon abandonment, the master becomes the agent of the underwriters, from the moment of the loss, and is responsible to them. Until abandonment he is tho agent of the assured. 1 Arnould, 197; Jumel v. The Marine Insurance Co., 7 Johns. 423, and note (a) and authorities there cited, and 519; 2 Phillips, 439; Smith v. Marine Insurance Co., 7 Met. 453.
    Independent of this clause in our policies, the assured, upon meeting with a loss, not absolutely total, but only highly probable, may, by abandonment, make it in effect total. 2 Arnould, 997, 998; Lord Ellenborough, in Wellish v. Andrews, 15 East, 16; the same learned judge, in Bainbridge v. Neilson, 10 East, 341; 2 Arnould, 1086, 1114, 1181 (sec.409), 1196, 1197; 7 Johns. 519, 520.
    III. Tho policy provides that the insurers shall not be liable for any partial loss, except in case of general average, unless said loss amounts to five per cent, on the agreed value in the policy, exclusive of all expenses of ascertaining and proving the same; “ nor for damage or loss from, or caused by, the said steamboat being’ unduly laden during the continuance of this policy.” It is evident that she was too deeply laden for the water.
    Wo asked the-court in both cases to charge the jury:
    *1. That, “if the Olive Branch, at the time she left St. Louis, was loaded so as to draw more water than there was in the river, such overloading made her unsoaworthy; and if such overloading contributed to her loss, the plaintiff can noL recover.
    
      “2. That if the jury shall find she was so overloaded, she was, in tho language of tho policy, unduly laden, and the plaintiff can not recover for a loss arising therefrom.”
    : Which the court refused to charge, but charged that, “ if tho boat was laden deeper than her capacity would safely allow, then she would be unsoaworthy and unduly laden, and not otherwise.” And the court also charged, “that if tho Olive Branch was so loaded as to draw more water than there was in the river, such act of overloading was one of carelessness on the part of the officers and crew, and any loss consequent thereupon was within the risks insured against (see 2 Arnould, 772, sec. 287), and covered by the policy; but if the boat had been loaded beyond her capacity, or so as to sink her below her guards, she would thereby have been rendered unsoaworthy.”
    We claim that tho court erred in refusing to charge as requested, and in the instructions given. 1 Arnould, 679, sec. 251; Weir v. Aberdeen, 2 B. & Ald. 320; Chase v. Eagle Insurance Co., 5 Pick. 53; Abbott, 346, 347; 1 Arnould on Ins. 697; Perrin v. Protection Insurance Co., 11 Ohio, 147; 5 Pick. 53; Bush v. Tho Royal Exchange Assurance Co., 2 B. & Ald., was decided in 1818, and Walker v. Maitland, 5 B. & Ald. 171, in 1821; Waters v. M. L. Insurance Co., 11 Pet. 213; Walker v. Maitland, and Bishop v. Pentland, 2 B. & C. 219. In Walker v. Maitland, the case of Bush 
      v. Royal Exchange Assurance Company is relied upon; and in Bishop v. Pentland the same case of Bush v. Royal Exchange Assurance Company, and the case of Walker v. Maitland, arc the authorities cited. Not the least information-is given that anything which was said in Weir v. Aberdeen conflicted with the views expressed in the later cases.
    *In Arnould on Insurance it is said, if the ship is so heavily or so improperly loaded, when she sails on the voyage insured, as to be incapable of encountering the voyage, that is unseaworthiness; and the case of Weir v. Aberdeen is cited with approbation. 1 Arnould, 679, and 2 Ib. 5, 1, 086, and 772, 773.
    Bates & Scarborough, for plaintiff in error:
    I. The question propounded to Ross was competent, and tended to prove the defense. Steamboat Clipper v. Logan, 18 Ohio, 375.
    II. The chai’ge in relation to seaworthiness of boat. 1 Phil. on Ins. 308; 1 Arnould, 652; 11 Pick. 227; 2 Met. 432; 1 Whart 399; 5 Pick. 58.
    III. The clause in policy requiring assm’ed to use efforts for recovery of the steamboat. 1 Arnould, 577-583, inclusive; 1 Phil. on Ins., 346, 351; Wood v. Hartford Fire Ins. Co., 13 Conn. 553; 1 Marsh. 248, 250 ; Park. on Ins. 318.
    The assured were bound to use these efforts to entitle them to a l’ccovery. The question whether they were or wore not used should have been submitted to the jury.
    Fox & French, for defendant in error :
    I. The court properly ruled out the questions propounded to Ross.
    II. The charge that the policy rendered the'assured no more or less responsible for the negligence of the officers in saving the boat after the disaster, was correct. Nor did the court err in refusing the charge asked.
    The defendants contend that the boat, when she leaves port, must, at her peril, know that there is sufficient water to enable her to go from St. Louis to New Orleans without stopping. This is the substance of the charge asked.
    *Tke loss was not occasioned by running on a sand-bar, or on shallow places, but by running on a ledge of logs, and then, breaking in two; and that there was water enough to navigate, is evidenced by the fact that she was navigated to the place of disaster.
    
      Again, the position assumed by the defendants below, is contrary to another well-settled principle in insurance law. That is, that the insurer is always liable for any increased risks during the voyage. 1 Phil. Ins. 630.
    The counsel for plaintiffs in error are under a mistake, in supposing there is any warranty in the policy that the boat shall not be loaded deeper than the depth of water on the bars. 16 Pick. 303; 15 Wend. 532, 535; 12 Pick. 232; 5 Pick. 51.
    But a warranty, if not complied with, will defeat a recovery, although the breach of warranty did not contribute to the loss, and as is said, even if the subject matter of the warranty is immaterial to the risk. Park on Ins. 318; 1 Marsh. on Ins. 347.
    But even this position is doubted in the late English cases. 2 Barn. & Aid. 73; 5 Barn. & Ald. 171; 7 Adol. & Ellis, 40; 5 Mees. & Welsh. 405; 2 Met. 448.
    III. The next question arises under the clause providing for what shall be done in order to preserve the vessel from loss in case of accident met with'in the course of the voyage.
    This clause in the policy, so far as the insured is concerned, was originally inserted in policies for the benefit of the insured, so as to enable him to use his best exertions to save the vessel, “ without prejudice to his right to abandon.” 2 Condy’s Marsh. 614, ch. 13, sec. 5; 1 Ib. 324, ch. 8, sec. 3. The meaning of it is, that till the insured has been “informed of what happened, no act of the captain shall prejudice their right to abandon.” 2 Marsh: 614, 591; 1 Term, 608; 2 Marsh. on Ins. 592, ch. 13, sec. 2; 1 Term, 608; Mitchell v. Edie, 2 Marsh. ch. 13, see. 5, p. 614; 1 Johns. 367; 7 Johns. 423. Whatever a master would have a right to do, if the ship and cargo wore his own, the underwriter
    %nust answer for. 2 Phil. Ins. 268, 294; 2 Marsh. Ins. 580, 615. Acting for the benefit of all concerned, means with a view to that benefit, and not what the consequence of the act may prove. 2 Phil. Ins. 269; 1 Phil. Ins. 514; 3 Mass. 417.
    But it -is 'claimed, as we understand, that the insertion of the words, “ it shall be the duty of the assured, or his agents, to use everj practicable effort for the safeguard and recovery of the said steamboat,” means not only that the master shall make use of all ordinary efforts which skillful men would make use of, but if any one effort remained which others could have made use of, that effort must have been made use of, or the insured can not recover. Ve contend no such meaning can be attached to the clause. Gardere v. Col. Ins. Co., 7 Johns. 519; 2 Phil. on Ins. 443; 3 Mason, 82.
    Taft & Mallon, for plaintiff in error, in reply:
    We claim the superior court ei’red: 1. In excluding competent evidence to prove the unseaworthiness of the boat. 2. In charging that the steamboat could not be “unduly laden,” within the meaning of the policy, unless she were laden too deep for her capacity. 3. In charging that the clause in the policy, “that in case of loss or misfortune, it should be the duty of the assured, his agents or assigns, to use every practicable effort for the safeguard and recovery of the said steamboat, etc., did not affect the responsibilities of the parties to the policy, in any manner.
    
      First. It was claimed by the defendants below, that the Olive Branch was unseaworthy, because she had an incompetent pilot. Seaworthiness is a fact; and its existence is to be proved by evidence of facts, rather than by opinions. 1 Arnould’s Ins. 653.
    Wo claim, therefore, that the ineompefccncy may be proven by instances of bad piloting. Upon this principle those questions were put to the .witness Ross, which called for his opinion *of this, as an instance of good or bad piloting. 1 Arnould’s Ins. 675, 678.
    
      Secondly. 1. We claim that the court below erred in refusing to charge that a steamboat was “ unduly laden,” within the meaning of the policy, which was laden too deeply for the navigation of the river at the time when she left port. The provision in the policy is, that the company “ should not be liable for damage or loss caused by the said steamboat being unduly laden, during the continuance of the said policy.” The court charged the jury that this provision had reference only to the capacity of the vessel, and not at all to the depth of the water she was to navigate.
    2. But we claim that, independent of the clause in the policy, to which we have last referred, a boat which starts out from a home port, laden too deep for the depth of the water in the river, is not river-worthy. The vessel is to be equipped and loaded in proper manner for the navigable water in which she is to run.
    
      Thirdly. But the error upon which we most confidently rely, is in that portion of the charge which asserts that the clause in the policy requiring the assured, “in case of loss or misfortune, to use every practicable effort for the safeguard and recovery of the said steamboat,” “renders the insured no more and no less responsible for the negligence of the officers and crew of the boat, in saving the boat after the disaster, than they would have been if no such clause had been inserted.” This instruction, we insist, is erroneous. We claim that this clause means precisely what it says. It is an express warranty or condition in the policy, a compliance with which is a condition precedent to any cause of action. It has been settled by this court, following the Supreme Court of the United States, and the English courts, that negligence in the management of a ship or vessel, even of the insured himself, is no excuse for the insurer, where there is no express provision in the policy on the subject.
    1 Arnould on Ins. 577, sec. 213, pp. 578, 585; De Hahn *v. Hartley, 1 Term, 345, 346; Hibbert v. Pigon, Marsh. on Ins. 395 ; 1 Arnould, 347.
   Hitchcock, C. J.

These cases are alike in substance, and were argued and submitted by counsel as involving the same principles. The policies of insurance are alike, although of different dates. They were effected upon the same boat, and for the benefit of the same individual. The same testimony was offered in each case, the same points were made, and ruled substantially alike in each case, and in each the verdict of the jury was in favor of the insured.

There is some difference, however, in the charge of the court, upon one particular point in the two cases, and perhaps a slight difference in the ruling as to the testimony. Whether this difference is such as to require of this court to decide the cases differently, is a question to be considered; This difference is not adverted to by counsel, if it has been even perceived by them.

The general facts of the cases are these; The risks upon the “ Olive Branch” were taken at the times, and for the amounts stated in the declarations. This is apparent from the policies, which arc made part of the bills of exceptions. The bills further show that the boat left St. Louis on a voyage to New Orleans, about August 7, 1846, with a cargo on board ; that her draft, with the cargo on board, when she left St. Louis, was about six to six and a half feet. At the time, the water was low in the river, and with the cargo on board, the boat could not pass some of the bars, and in order to get over them, the captain and crew were compelled to lighten her by taking out portions of the cargo. She-•was detained at Turkey Island some three days, at'which point a part of the cargo, consisting of lead, was taken out, and, by so lightening, her draft was reduced to from five and a half to six feet. Subsequent to this, she rubbed upon some of the bars, and ■occasionally upon logs. Her progress was slow, and she did not arrive at the place where lost until somewhere from the 15th to the 17th of August; at *which time, at about eleven o’clock at night, she was run upon a reef of stumps and logs, opposite the mouth of the Bordeaux chute, and was lost. The testimony as to the depth of water upon the bars is not very definite. The captain ■of the boat states the water was very low in the upper Mississippi; that below the mouth of the Ohio there was seven feet in the lowest places, which he considers very low for that part of the river. At the point where the accident happened, there was in ■the channel a sufficient depth of water, and no particular difficulty in the navigation; but the boat was some distance from the proper channel when she was run upon the logs. She is proved to have been staunch, sound, and seaworthy, when she left St. Louis, and there is no evidence of any injury done to her before the accident which occasioned her loss. It is possible, perhaps probable, that she might have been strained and injured somewhat in rubbing' upon bars and logs.

The evidence was offered to prove that the officers and crew were competent, and these, so far as examined, concur in testifying that, after the accident, everything was done, which, according to their judgment, could have been done, to save the cargo and relieve the boat, but they state it to have been their opinion, from the time of the accident, that there was no possibility of saving her. Witnesses were examined, on the part of the plaintiffs in error, to induce the belief that it was owing entirely to negligence and carelessness, that the boat was not relieved from her dangerous situation after she struck. Indeed, one witness, who was a passenger on board, states it as his opinion, from what he saw of the conduct of the officers and crew, that the boat was intentionally run upon the logs; that no efforts were made to get her off, and that he believed the design to have been to charge the insurers with the loss. The captain of the boat, however, and the other officers examined, say, expressly, that they did not, at the time of the loss, know that the boat was insured, and did not learn that fact until some time afterward.

Such are the.leading facts in the cape as set forth in the bills of exceptions.

*The defense relied upon by the insurance companies, was that the boat was unduly loaded, that she was unseaworthy, and that the insured and his agents did not use every practicable effort for the safety and preservation of the boat, at the time of the accident and loss.

On the trials, a witness was introduced by defendants below, by the name of Charles Ross, who had been á pilot upon the river, and who seems to have been acting as.the agent of said defendants below to prepare said eases for trial. He was acquainted with the river; had seen the wreck of the Olive Branch about two weeks after the loss. He stated how pilots usually run; that the descending boats are not usually very particular there, because of the depth of the river and width of the channel; that when he first saw the wreck, he was not nearer than four hundred and fifty yards from her; that boats might run within seventy-five yards and be safe.

The plaintiffs in error then propounded this question to the witness: “ State your opinion, from your knowledge of the character of the navigation of that part of the river, whether or not a boat descending the river, could be run to the place where the Olive Branch was when you saw her, by a competent, sober pilot, if awake, without criminal neglect or fraud.” The question was objected to, and the objection was sustained. In this it is claimed that the court erred.

It is difficult to conceive what object the party had in view in propounding this question. If the object was to enable the jury to infer from the answer that there had been neglect on the part of the pilot, such neglect could not excuse the underwriters. If it was to enable the jury to infer that the pilot was not awake, such fact would not excuse the underwriters. If the object was to prove that fraud had been committed, this ^certainly was not a legitimate mode of proving the fact of fraud. If the object was to induce the jury, contrary to all the evidence in the case, to believe that the pilot was not competent, it was a singular mode of proving incompetency.

The question is not based upon any hypothetical state of facts> bet upon the defendant’s knowledge of the navigation of that part of the river, and from this knowledge, he was called upon to state whether a boat could, under any possible circumstances, by night or by day, in time of storm, when affected by the force of wind or otherwise, be run to the place where she was wrecked by a competent, sober pilot, if awake, without criminal neglect or fraud.”

The witness might have answered the question, and have answered in accordance with the wishes of the plaintiffs in error, hut we think he was properly precluded from doing it, and in sustaining the objection the superior court did not err. The witness stated that he had heard the testimony as to the position of the boat on the logs, and as to that part of the river where the disaster happened, and further, that he had never heard of such a man as Hunt, who was pilot of the boat at the time of the loss, before that loss occurred.

This question was then propounded to the witness: “ Ou the facts in proof in this case, as to that part of the river where, and as to the night, and running of the Olive Branch when the accident happened, what is your opinion as to the competency of the pilot at the wheel ?”

This question was objected to and the objection sustained.

One of the questions involved in these cases was as to the competency of the pilot. This was a question for the jury. Upon this point there had been testimony, and the witnesses acquainted with the pilots had generally, if not universally, ^stated that they were good and competent pilots. This witness is then called upon to give his opinion of'their competency, not upon a hypothetical case stated, not upon an agreed state of facts, but from what ho had heard of the testimony in the particular case. He must then, as a juror, ascertain the state of facts from the evidence, conflicting as it was, and from the opinion which he formed of what the facts really were, draw his conclusion as to the competency or incompeteney of the pilots. This would be carrying the doctrine of permitting experts to testify and express their opinions upon particular matters, upon which they are called upon to speak, to a dangerous length. This doctrine was carried to the utmost extent it could be, in the case of the Steamboat Clipper v. Linus Logan, 18 Ohio, 375, with any kind of safety. But that case was materially different from this.

Admitting that Ross, as an expert, could be permitted to express bis opinion, it must be upon a hypothetical state of facts, or in a case where there was no contradiction of facts relative to the subject matter upon which ho was called to speak. In the case against the Cincinnati Mutual Insurance Company, the court seems to have admitted that upon a hypothetical case, he might express bis opinion.

As the question was propounded, we think the court very properly sustained the objection which was taken to it.

The plaintiffs in error then propounded the following question to the witness Ross: “State whether, since you have heard of Hunt, you have learned what was his reputation and character for sobriety, or drunkenness, at the time of this occurrence; if yea, state what that reputation and character was.”

This question was objected to, and the court would not permit it .to bo answered. This is complained of as error.

It is not readily perceived how the general character or reputation of Hunt was put in issue in this case; but if it was, it should bo proven by those who were acquainted with him and his reputation at the time, or before the time, of the disaster, *not by one who never heard of him before, but'might, by possibility, have heard evil reports of him after that disaster.

In the case against the Firemen’s Insurance Company, a witness by the name of McDonald was examined, and he was called upon, by plaintiffs in error, to state his opinion upon a particular point, from what he had heard of the testimony in the case, substantially, as was Ross in the second interrogatory propounded to him. This was not permitted by the court, and we think in thi3 the court ruled correctly.

These are all the points upon which it is claimed that the superior court erred in its rulings as to the testimony. In the opinion of this court, there was no error in those rulings.

The testimony being closed, the counsel for plaintiffs in error requested the court to charge the jury, “that if the Olive Branch was loaded so as to draw mor.e water than there was in the river, such overloading made her unseaworthy; and if such overloading contributed to the loss, the plaintiff can not recover; that if the jury shall find she was so overloaded, she was, in the language of the policy, “ unduly laden,” and the plaintiff can not recover for a loss arising therefrom.

The court refused to charge as requested; hut did charge “that if the boat was laden deeper than her capacity would safely allow, then she would be unseaworthy and unduly laden, not otherwise.’r At least such was the charge in the case of1 the Cincinnati Mutual Insurance Company.

That the overloading a vessel renders her unseaworthy, there can be no doubt, and being thus unseaworthy when she starts upon her voyage, if she is lost, no matter from what cause, the insurers are discharged, as the policy never attached. But the question raised between the superior court and the counsel for plaintiffs in error, is, whether the loading is to be controlled by the capacity of the vessel or the depth of the water over which the vessel is to float. The court' say that the capacity of the vessel is to control. If she is not loaded beyond her capacity, she is not, in contemplation of law, unseaworthy on- ^account of her loading. Counsel seem to admit this to be sound law enough, so far as concerns vessels navigating the ocean, but insist that in navigating the western waters a different rule must prevail. That here we must not look so much to the capacity of the vessel as to the depth of the water in our rivers—not the depth of water in the rivers generally, but the depth upon shoals and bars. It is urged, in favor of this construction, that there is a clause in these policies that the company shall not be liable “for damage or loss arising from, or caused by, the said steamboat being unduly laden during the continuance of the policy,” etc. It is said that in usiug the word unduly, something more was meant than what the law implied, without that provision.

Suppose we consider for a moment the consequences which would follow from adopting the construction which is contended for by plaintiff’s counsel. As a matter of the fact, we know that there is a great difference in the depth of our rivers at different seasons of the year. In times of flood the waters are deep; in times of drought they are very shoal. At one time a boat may bo loaded to her full capacity, and she will be within the terms of a policy of insurance. At another time she may not be loaded within two or three feet of her capacity, and she will not be within the same policy, because there may be shoals and bars over which she can not pass without rubbing upon the ground. A boat might bo loaded at New Orleans with a full cargo, and start on a voyage for St. Louis while the water in the lower Mississippi was in good navigable order, and might be lost before she left that part of the river, and still, if it could be shown that when she left Now Orleans the water in the upper part of the river was so low that she could not have passed the shoals and bars without grounding, the loss would not have been within the same policy. She might have been loaded within her own capacity, but not within the capacity of the river for the whole length of the voyage; therefore she was unsoaworthy from the commencement of the voyage, and the policy did not attach.

*It seems to the court that this will not do, and that the only sensible constniction to the terms “overloading” or “unduly laden ” is that given by the superior court—that it relates to the capacity of the boat, not to the capacity of the river.

But it is said that the judge erred in his charge in this: that he said, “if she was laden deeper than her capacity would allow, she was unsoaworthy, and not otherwise.

The language of the judge is not correctly quoted. As it was used in the case against the Cincinnati Mutual Insurance Company, it was this: “ If the jury should find that the boat was laden deeper than' her capacity would safely allow, then she would be unseawortby and unduly laden, and not otherwise.” The last words clearly have reference to the loading of the boat.

In the case against the Firemen’s Mutual Insurance Company, the language used in this part of the charge is different. The request to charge is the same, but the language of the court is as follows: “ If the Olive Branch was so loaded as to draw more water than there was in the river, such act of overloading was one of carelessness on the part of the officers and crew, and any loss consequent thereupon was within the risk insured against, and covered by the policy ; but if the boat had been loaded beyond her capacity, or so as to sink her below her guards, she would therefore have been rendered unseawortby.”

This language is not as clear and explicit as it might have been, but still it is easily understood, and is consistent with the charge in the other ease. The ideas conveyed are these: If the boat was loaded beyond her capacity, she was unseaworthy. Had she been loaded so as to sink her below her guards, she would have been unduly laden, and therefore unseaworthy ; but if she was so deeply laden as to make the navigation difficult, but still was loaded within her capacity, it was an act of carelessness on the part of the officers and crew, and any loss consequent thereon would have been covered by the policy.

In such case the vessel would be seaworthy so far as the loading was concerned, but tbero would have been more loading *than prudence dictated; but so long as she was seaworthy, the insurers would be liable for any loss.

So far as this charge is concerned, we do not, in either case, discover any error.

The policies contain this .clause: And in case of loss or misfortune as aforesaid, it shall be the duty of the assured, their agents or assigns, to use every practicable effort for the safeguard and recovery of the said steamboat, and if recovered, to cause the same to be forthwith repaired; and in case of neglect or refusal on the part of the assured, their agents or their assigns, to adopt prompt and efficient measures for the safeguard .and recovery thereof, the said insurers are hereby authorized to interpose and recover said steamboat, and cause the same to be repaired for account of the assured.”

The court charged the jury, “ That this clause rendered the assured no more and no loss responsible for the negligence of the officers and crew of the boat, in saving the boat after the disaster, than he would have been if no such clause had been inserted.”

In this it is claimed that the court erred.

In the opinion of the superior court, the insertion of this clause added nothing more to the responsibility of the assured, so far as the negligence of the officers and crew in saving the boat after the disaster was concerned, than would have been imposed upon him without any such clause. The disaster has happened which was insured against, and after this, after the insurer is liable to a partial or total loss, as the case may bo, the assured or his agents are bound by this clause to use efforts to recover and save the boat, and get her repaired ; and if they neglect, the insurer may do it and charge the assured with the expense. To determine whether the opinion expressed by the court to the jury is correct, it is necessary to ascertain what are the duties of the assured, his agents, etc., in case of a disaster like the one which happened in the cases under consideration.

This clause is said to be different from those inserted in the ^Atlantic policies. In these latter, the corresponding clause is, “ In case of any loss or misfortune, it shall be lawful for the assured, their factors, agents, servants, etc., to sue, labor, and travel for, in or about the defense, safeguard and recovery of the said goods or ships, without prejudice to this insurance.”

Now, this last-recited clause added nothing to the duties of the assured or his agent, in ease of loss. It was inserted, as it seems, so as to save to the insured a right to abandon, where he or his agents shall, after a disaster, have made efforts to recover and save the vessel and cargo. It was inserted for the benefit of the insured, not of the insurers. It does not vary or change the duties of the party. “ Without this clause,” says Marshall, “ the insured is bound, in justice, honor, and conscience, to use his utmost endeavors to make the most of what may be rescued from destruction, in order as much as possible to lighten the burden of the insurers.” 2 Marsh. Ins. 614.

It is claimed, however, that the insertion of the clause which has been referred to in the policies now before the court, imposes an express obligation on the insured, which before was only implied, and that it is to be treated as a warranty, which if not fulfilled will avoid the policy. Such was not the opinion of the Supreme Court of New York as expressed in the case of Gardere v. Columbian Insurance Company, 7 Johns. 514. In that case, the policy contained the usual clause, with this change: after the word “lawful,” the words “and necessary” were inserted, so that the reading was it shall be lawful and necessary for the assured,” etc. The judge, in delivering the opinion of the court, says, “ Previous to this alteration, the construction of the above clause was well understood; and I can discover no substantial reason why the insertion of the word “ necessary ” should so essentially alter the construction as to create a different operation. It imposes no additional duties on the master. He was before bound to labor diligently for the recovery of the property, and to alleviate the burdens of the insurer. This is a well settled rule,” etc. *In the case before us, more words are used than in the clause in the New York case; still, in that caso, the insertion of the word "necessary” included, iu its legal effect, all that is included, or insisted upon as being included, in the present policies. If so, then it follows, if the court of New York was right, and we think it was, that no additional duties were imposed upon the insured 'by the insertion of this clause, and the superior court very properly so instructed the jury.

This clause in the policy, although it imposes no additional duty upon the insured, secures to the insurers the privilege after a disaster, if the insured shall not labor faithfully to recover and repair the boat or vessel, of doing it themselves and of charging the expenditures to the assured. And they may do this without being charged with having accepted an abandonment.

In the opinion of this court, the superior court did not err in. the charge to the jury.

The last error assigned is, that the superior court refused to grant a new trial. If that court did not err in its rulings upon the testimony, nor in its charge to the. jury, no new trial should have been granted on either of these accounts. And the only remaining question is, whether the verdict was against the evidence. We have examined the testimony as it appears in the bills of exceptions, and it seems to us that instead of its being against tho verdict it fully sustains it, and the superior court very correctly overruled the motion for a new trial.

The judgment of the superior court, in both cases, is affirmed with costs. 
      
       By a policy of insurance, the assured makes no warranty to the underwriters that the master and crew shall do their duty during the voyage; and their negligence or misconduct is no defense to an action on the policy, where the loss has been immediately occasioned by the perils insured against; nor can any distinction be made in tbis respect between tbe omission by the master and crew to do an act which ought to be done, and the doing an act which ought not to be done, in the course of tbe navigation. Broom’s Legal Maxims, 388, citing Dixon v. Sadler, 5 M. & W. 414; 11 Ohio, 147; 11 Peters, 213.
     