198 FEDERAL REPORTER. �department, and shipped their private effects on a govern- ment vessel, going up the river. They took out insurance on those effects, the agent of the underwriter knowing that the property waa to be shipped on this government vessel. Henoe the contention seems to have been, at an early stage of the trial, whether the rules and laws that require vessels to have licensed pilota are applicable to government vessels. �Testimony was received as to the unlicensed pilotsnavigating the vessel on which the disaster occurred, in order to ascer- tain whether the vessel was seaworthy, under the warranties of marine insurance. Judge Krekel originally held that the mere fact of the ofïicers being unlicensed did not privia facie render the vessel unseaworthy, but it was a matter of fact to be determined by the jury. But in the course of the trial and after various arguments the doctrine of contributory loss, and general and particular average, was urged to show that inas- much as the government or a government vessel could not be compelled to contribute if there had been a jetfcison, for illustra- tion, therefore the whole case was taken out of the body of the law of insurance as to seaworthiness. But this was not a case involving any such propositions. Yet his instructions were based on that theory. This contract was not between the government and the shipper, nor between the government and the underwriter, but between the shipper and the under- writer; and all the warranties that foUow with regard to sea- worthiness obtain. Whether the vessel was a government or any other vessel, yet the mare fact that the government vessel does not have a licensed pilot, and is not bound to have one, does not raise presumptions one way or another; it becomes a simple matter of fact, and must be left to the jury. I want to remark that under the motion for a new trial one of the grounJs was newly discovered evidence, and that this new trial is not granted ou that matter. If that had been ail, the motion would have been overruled; but it simply rests upon the point already stated. I am instructed to say, by Judge Krekel, that for these reasons the motion miist be sustaint 1. ��� �
