This is assumpsit on a policy of insurance on goods imported in ship Moselle from Havre to the United States. The vessel had a very long and boisterous passage, but did not spring a leak, or suffer any considerable injury to her hull. A large portion of the goods was damaged, being silks and other French goods of delicate fabric.
*606The jury were rightly instructed that the defendants- as insurers were liable only for damage caused by the extraordinary perils of the sea; and that the damage arising from dampness of the hold of a vessel, and a protracted voyage, being the ordinary perils to which all goods imported were exposed, is not insured against, and cannot be recovered upon a policy on goods.
The evidence is detailed at considerable length, and thereupon the court instructed the jury.
1. The jury were instructed to find all damage to the goods, occasioned by being wet with salt water. The instruction assumed, and we think rightly, that if cases of goods in the hold of the vessel were found to have been actually wet with salt water, it was plenary evidence that salt water had by some means gained access to the hold of the vessel, and this might fairly be attributed to strains occasioned by the force of the winds and seas, by stress of weather, wrhich is an extraordinary peril, and one against which the underwriters do insure.
2. But there is a large amount of damage proved to have been done to the goods, respecting which there is no direct proof to show whether it was occasioned by dampness or other ordinary cause, or by perils of the sea. Of these, the jury were directed to exclude those liable to be injured by ordinary dampness, because the fact of damage is not enough and no sufficient evidence from wrhich to find that it was caused by a peril of the sea.
3. There would still be a class of cases, not shown to have been wet with salt water, and yet not liable to be so damaged as they were found to be by the ordinary dampness of a vessel’s hold. In regard to these, the underwriters are not responsible for the damage, unless proved affirmatively to have been caused by perils of the sea; no other such perils being averred than access of salt water, by straining in heavy weather. But although the damage is proved by the actual condition in which goods were found, yet there is no satisfactory evidence to prove that this damage was caused by any peril of the sea. It mus4 have had a cause, because it is found to exist. Now, if it were equally probable that it arose from the entrance of a large quan *607tity of salt water, and by the ordinary dampness of a ship’s hold, aggravated by a long voyage and a considerable change of latitude, the plaintiffs could not recover, because they have the burden of proving it to be from the former cause. But the evidence tends to show that, notwithstanding a long passage and stress of weather, the vessel leaked but little; the preponderance of evidence is against the fact that it was occasioned by an extraordinary peril of the sea, causing an unusual access of sea to. the hold of the vessel.
Verdict to be entered for the damage ccmsed by salt water, as returned by the jury, with interest; and the other sum returned by the jury disallowed.
The plaintiffs moved for a further argument, which was granted and had before the full court; and at March term 1851 the following opinion was delivered by
Shaw, C. J. This cause came before the court at March term 1849; an opinion was delivered in June; but, in consequence of a motion of the plaintiffs’ counsel, suggesting a misapprehension of the effect of the report, no judgment has been yet entered.
The counsel for the parties have again been before us, and stated their views; the counsel for the plaintiffs thinking that the court had mistaken the effect of the report, the questions of law intended to be presented by it, and the grounds on which they were submitted; and the counsel for the defendants controverting that view, and insisting that the report as understood by the court was intended to be so understood, and the questions to which the attention of the court was drawn were those intended to be raised.
The report is in rather an unusual form; and it has been stated that.it was not made by the judge who tried the cause, but by the counsel; and perhaps is not as critically accurate as it might have been.
The directions of the judge are to be construed with reference to the case as disclosed after all the evidence was in, and in special reference to the posture of the case as thus presented *608The goods were mostly, if not all, new French goods of delicate fabric and colors. They had been thoroughly examined, and the damage estimated by official appraisers and experts, and the results of all such examinations were before the jury in detail.
The underwriters being responsible only for damage caused by the perils of the sea, not by the ordinary risks to which goods are exposed in a sea voyage, but only to those occasioned by stress of weather or other extraordinary risk; this of course must depend on the facts disclosed by the evidence, affecting,
1. The actual state and condition in which the goods were found, when taken out of the ship.
2. The nature and character in regard to texture, material and color; whether they were liable in their nature to be damaged, as they were found damaged, by being long packed, without any extraordinary exposure to wet or damp; or not in their nature so liable.
3. The circumstances and condition in which they were placed on the passage, taking into consideration its length, the variety of climate and latitudes through which the ship passed in her passage, and her actual condition as to exposure to winds and seas, her leaking, and the other circumstances attending the voyage.
On this state of the case, we understand that the judge ruled,
1. That all cases which were found to be wet with sea water, which could only be caused by leaking, should be computed, whether admitted by the underwriters or not; the underwriters having admitted that some cases were so wet; but, as the plaintiffs contended that they had not admitted as many as were actually so damaged, the judge directed the jury unconditionally to find upon the evidence, and return the amount of such damage.
2. The judge directed, as to those goods which were found damaged, but which were of such a nature that they would have been liable to be so damaged by being closely packed and kept a long time, in a warehouse or elsewhere, there being no evidence but the fact of damage, and that being equivocal, and the burden of proof on the plaintiffs to prove a loss by peril of the sea, that the jury could find no. damage.
*6093. As to the intermediate species of goods, those found damaged, that is, spotted and stained, being goods not in their nature susceptible of damages by being kept closely packed, the judge doubted whether it was attributable to a peril of the sea or not, i. e., whether it was occasioned by the ordinary dampness of a vessel’s hold during a long voyage and in a hot climate; or whether it was caused by an extraordinary formation of steam and gases, occasioned by an extraordinary access of sea water, occasioned by winds and seas and stress of weather. The jury therefore were instructed provisionally to return the amount of damages to such goods, not actually wet, but yet found damaged, subject to the opinion of the whole court on the question whether this was a damage by peril of the sea, for which underwriters were liable; and the evidence was reported to enable the court to judge, from the evidence, of the nature and character of the loss in question, and whether by the peril of the sea or not.
Under these instructions, the jury returned insurance for goods damaged by salt water; another sum for further damages. By this we understand goods of the last mentioned class. We are to presume that the jury followed the instruction in regard to goods susceptible in their nature of damage, and of course returned no damage on that ground ; that direction was precise, explicit and unconditional, and, if incorrect, the plaintiffs had the benefit of the exception. Former opinion confirmed *
The reason of the omission of this case in Cushing’s Reports is thus stated in a memorandum indorsed by the chief justice upon his papers: “ Nothing to report. The counsel differed as to the meaning of the report; and the case went off on its own peculiar circumstances, and would be of no value in determining any principle.” But as the ease has been elsewhere imperfectly reported, and the decision misunderstood, the above report has been made from the papers on file, and the opinions printed from the manuscripts of the chief justice. See 14 Law Reporter, 203 ; I Phil. Ins. §§ 1099, 1129 ; Montague v. London Assurance Co. 6 Exch. 451; Rankin v. American Ins. Co. 1 Hall, 622, 634 ; Leftvnch v. St. Louis Perpetual Ins. Co. 5 Louisiana Ann. 706.