#### JOLLY’S EXECUTORS *v.*THE OHIO INSURANCE COMPANY.

Evidence — value of goods — insurance—negligence of the navigators — navigators the agents of the insured — diligence—deviation—new trial — jury mistaking the law.

An invoice of goods taken from the vender at the time of purchase, is an-item of evidence to show the value of the goods; but an invoice made by the paity offering it, as a guide to his consignee, in making sales, is not evidence for him.

Where loss results from the gross negligence of the navigators, or from their deviation from the usual channel of the navigation, it falls on the carrier, not the insurer.

The principle pervading the whole loss of marine insurance, is that the insure/is held impliedly to warrant'his navigators careful and diligent, and if loss happen for want of either, the insurer is not liable.

The principle is settled that the navigators are the agents of the insured, and if they deviate from the usual and common course of the navigation, it is at their own risk; the gain is their’s if they succeed, the loss their’s if they fail.

*540Where the proof of a deviation is clear, and the jury mistake the law, so as to make it allow the master or pilot the exercise of his discretion in deviating or not, a new trial will be granted.

Covenant upon a policy of insurance on a lot of coffee from New Orleans to Cincinnati, in a steamboat. Several issues weré joined, and much evidence given. It was proven that the boat in ascending the Mississippi near island No, 124, left the main channel of the river, and attempted to shorten the distance, by running through a chute or cutoff, where boats run at high water. After proceeding some distance, the water was found too low, and the pilot made an unsuccessful effort to back out. About twelve at night the boat grounded, and was not got off till the water rose. In two days the water fell so much that no other boat could get within three fourths of a mile of them. The cargo was landed and secured on the beach, when there came on stormy weather and the coffee was injured. The real matter in controversy before the jury was, whether the running the boat into the chute was not such an act of negligence in the captain, as- to throw the loss on to the carrier, and excuse the insurer. And the degree of care and exertion, the captain was bound to make to forward or preserve'the goods,

In the progress of the case, plaintiff offered in evidence a letter and his own bill of the coffee, written at the time of the shipment, to his commission merchant and consignee, to prove the value of the coffee.

*King,*objected.

*Storer*in reply, cited *Condifs Marshall,*709.

*Storer*and *Fox*for. the plaintiff,

asked the court to instruct the jury—

1. That the negligence of the master of the boat is not sufficient to excuse the insurer, even if it were fraudulent.

2. That neither the efforts of the master to forward the goods, nor his neglect to do so, affects the insurance: (1 *Marsh, d.*171; 9 *John R.*21; 12 *John R.*107, 102; 6 *Goteen.*274.)

3. That if the master, in good faith, took the chute in mistake of the true stage of the water, and by the sudden fall of the water, the boat was lost, the insurer is liable.

*King*and *N. Wright*contra,

contended that if the loss resulted from the negligence of the captain or by his deviating from the usual channel of the navigation, the plaintiffs’ remedy is against the *541carrier, and not on the policy. They-cited — 9 *John R.*19, 26, 27; 14 *John R.*144; 6 *Cowen R.*274; 5 O. *R.*435.

*540Lane, J.

An invoice by a third person, taken at the time of purchase, is an item of evidence to show the value of the articles purchased, but not one made by the party himself, as a mere guide to his consignee for sales. The evidence is ruled out.

*541
      *N.*Wright,

in support of the motion, insisted that as to the fact that the captain deviated from the channel of the river into the chute, and so grounded the boat, the evidence was too clear to be controverted. That deviation subjected the carrier to the loss, and exonerated the insurer..

*jS'torer,*

contra, said that was a mere question of fact for the jury.

Lane, J.

Instructed the jury, that if they were satisfied the injury to the coffee resulted from the gross negligence of the captain, after the grounding of the boat, or if it resulted from a deviation from the usual course of the navigation from New Orleans to Cincinnati, their verdict should be for the plaintiff, if otherwise, for the defendant.

The instructions asked for, the court declined giving.

Verdict for the plaintiff *$605.*

The defendant moved for a new trial, because the verdict was against law and evidence.

Lane, J

It is held a principle pervading the whole law of marine insurance, that the insured is held to the implied warranty, that the agents employed in the navigation are cai-eful and diligent, and that every thing shall be done to prevent loss within the reach of ordinary human agency; and if loss happen from the omission of such care and diligence, the insurer is n.ot accountable for it: (5 *O. R.*435.) The law is settled, that the captain and crew are agents of the insured: (16. 436.) As we understand the law, the navigator deviates from the usual and common course of the navigation at his peril; and if loss ensue, the carrier and not the insurer, is to bear it. The proof is, that navigators pass their craft through this cutoff or chute at high water, to cut off the distance and gain time. Such deviations are always at the risk of the navigators. It is obvious that there is less- danger of grounding in the main channel of the river than elsewhere; and if the pilot or captain, for his own gain or convenience, depart from this channel, as the gain is his, if he succeed, the loss is his, if he fail. This is not a case of error in judgment in an. emergency, for which the navigator might not be responsible, but one of voluntary deviation, and a consequent voluntary taking, by the navigator, of the risk. The proof oh this subject was clear, admitting of no controversy; and the jury, mistaking the law, held the captain at liberty to exercise his discretion, at the risk of the insurer, what channel to pursue, on this account a new trial is ordered, the costs of the defendants.