In Liverpool, etc., Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 438, 9 Sup. Ct. Rep. 469, it is said: 'Collision or stranding is, doubtless, a peril of the seas; and a policy of insurance against perils of the seas covers a loss by stranding or collision, although arising from the negligence of the master or crew, because the insurer assumes to indemnify the assured against losses from particular perils, and the assured does not warrant that his servants shall use due care to avoid them.' But in the case at bar there is an express exception of all perils and losses occasioned by the want of ordinary care and skill in navigation and of seaworthiness. The Spartan was a Canadian vessel, and was navigating Canadian waters, between two Canadian ports, and was bound to comply with the laws of Canada. The Canadian statute put in evidence (1 St. Can. 1880, p. 236) is entitled 'An act to make better provisions respecting the navigation of Canadian waters,' and prescribes certain rules, among them that every ship, whether a sailing ship or steam-ship, shall go at a moderate speed in a fog, mist, or falling snow, and shall not be exonerated by anything in the rules from the consequences of any neglect to keep a proper lookout, or of the neglect of any ordinary precaution, or precaution required by the special circumstances of the case. These statutory rules correspond with those revised by an order of council in England in August, 1879, (see 4 Prob. Div. 241,) and prescribed by congress, (Rev. St. § 4233; Act March 3, 1885, 23 St. 438,) and recognized as international rules. The Belgenland, 114 U.S. 355, 370, 5 Sup. Ct. Rep. 860; The Scotia, 14 Wall. 170. Section 7 of the Canadian statute provides that, 'in case any damage to person or property arises from the non-observance by any vessel or raft of any of the rules prescribed by this act, such damage shall be de med to have been occasioned by the willful default of the person in charge of such raft or of the deck of such vessel at the time, unless the contrary be proved, or it be shown to the satisfaction of the court that the circumstances of the case rendered a departure from the said rules necessary, and the owner of the vessel or raft, in all civil proceedings, and the master or person in charge as aforesaid, or the owner,-if it appears that he was in fault,-in all proceedings, civil or criminal, shall be subject to the legal consequences of such default.'
In The Pennsylvania, 19 Wall. 125, it was held that, where a vessel has committed a positive breach of statute, she must show not only that probably her fault did not contribute to the disaster, but that it could not have done so. And this was but the statement of the settled rule in collision cases. In this case, in view of the seventh section of the Canadian statute, and the fact that perils occasioned by the want of ordinary care and skill or of seaworthiness were excepted by the policy, the same rule is applicable; hence the burden was on the plaintiff to show that neither the speed of the steamer nor the defect of the compass could have caused, or contributed to cause, the stranding. If it appeared that the misconduct or unseaworthiness was causa sine qua non, it was an excepted peril; and that, as stated by Judge BROWN, 'ought to suffice for the exoneration of the underwriter in a case where a steamer, equipped with a compass known to be defective, is driven in a dense fog, with unabated speed, and in direct violation of a local statute, upon an island lying but eight miles off her usual track.' 26 Fed. Rep. 606. We think there was no error in giving the eleventh instruction asked by the defendant, and forming the subject of the eighteenth assignment of error. And this disposes also of the sixteenth and seventeenth errors assigned, as the burden was upon the plaintiff to show that the stranding, and its consequent losses, misfortunes, and expenses, were caused by perils insured against, and, as to the perils consequent upon and arising from or caused by the want of ordinary care and skill in navigating the vessel, plaintiff was its own insurer.
And the same result must attend the fourth, fifth, and sixth errors assigned, which question the refusal of the court to instruct the jury, as requested in the first, second, and third of the plaintiff's instructions, that the stranding of the Spartan, while a dense fog was prevailing, was an accident which was prima facie covered by the policy, and for which the insurers were prima facie liable, and that, if the fog contributed proximately to the stranding, the insurers would be liable.