(dissenting.) The sole question presented for determination in this action was whether the steam-tug Haviland was seaworthy, and was in charge of competent officers, and with a qualified pilot. The court below submitted that question to the jury, stating in the charge: “This question of seaworthiness is one that must be determined by the jury upon all the evidence in the case. If the jury should find that the vessel was seaworthy, and provided with a skillful master and pilot, then, as matter of law, I charge you that the defendants had no right to terminate the charter-party, and the plaintiff would be entitled to recover. If, on the other hand, the jury should find, as matter of fact, that the vessel herself was not seaworthy, or that the grounding off Nantucket shoals, and the other mishaps which it is claimed delayed the vessel in her voyage, were due to the want of skill of the master or pilot, then the defendant had a right to cancel the charter-party.” The court then called the attention of the jury to the testimony, and again stated to the jury the question that they were to determine, as follows: “If they should be of the opinion that these mishaps occurred by reason of want of skill of the master or pilot, then the defendants had the right to cancel this charter. If, on the other hand, the vessel was in a proper condition, and the master and the pilot had the proper skill to navigate the vessel over this course, and the going ashore and going out of the channel were due to the ordinary dangers of the sea, then the defendants had no right to cancel the charter-party. ” The jury found a verdict for the plaintiff, thus finding that the tug was seaworthy, in charge of competent officers, and that the stranding of the barges was not caused by the want of skill on the part of the master or pilot, or one of them, and we think that this finding is sustained by the evidence. The captain of the tug was 47 years old, and had been master of tug-boats for 25 years, and was well acquainted with Boston harbor. The pilot Barnard was on board, and was at the wheel, piloting the vessel, at the time the vessel ran on the shoal, and there is no evidence to show that either the captain or the pilot were not competent men, skilled in their profession, except from the fact of the accident in question; and whether or not, under the circumstances, it was their duty to have anchored instead of proceeding was a question that called for the exercise of their judgment as master and pilot of the vessel, and their determination to proceed cannot be said to be, on the facts that appeared on the trial, such evidence of incompetency or unskillfnlness as to require the court to take the question from the jury; and so the course of the vessel in entering Boston harbor, and the allowance to be made for the wind and tide, were questions that called for the exercise of their judgment, and it cannot be said that because they made a mistake in allowing for the strength of the *85tide so as to go out of the course was such an error of judgment as to show, as a matter of law, that they were not competent and skillful navigators. It was for the jury to say, from all the evidence in the case, whether or not the implied warranty of seaworthiness of the tug, and that the owners would furnish competent and skillful navigators, had been complied with; and the jury by their verdict have found that it had been, and that the accident that happened was not due to the want of skill on the part of the master or pilot, but was due to the ordinary dangers of the sea. Upon that finding, under the terms of the charter-party, plaintiff was entitled to his verdict. The cases cited by defendants from the admiralty court do not apply, for there the court is to determine the facts as well as the law, while in this case the facts were for the jury.
We have examined the requests to charge submitted by defendants, and which were refused by the court, and we do not think that the defendants were entitled to have any of such requests charged. The form in which this question was submitted to the jury was certainly as favorable to the defendants as the facts warranted, and we think no error was committed that calls for a reversal of the judgment. Judgment should therefore be affirmed, with costs.