Bigelow, C. J.
1. The question of a merger of a partial loss in a subsequent total loss is not now open to the defendants.
[528]*5282. The finding of the assessor is based on incompetent evidence. The real subject matter of inquiry was the amount of injury to the vessel, caused by sea perils, which constituted the alleged partial loss; not what it would cost to put the vessel in repair, either temporary or permanent, after a voyage of several years’ duration, and without reference to the causes which made such repairs needful.
3. The plaintiffs, in order to warrant a finding by the assessor in their favor for the amount due for the partial loss, were bound to offer evidence by which he would be able to distinguish between injury to the vessel by sea damage, causing partial loss, and the defects, depreciation, and want of repair attributable •solely to wear and tear and other ordinary causes during the prosecution of the voyage.
The amount of injury to the vessel by sea damage should be found by the assessor upon competent evidence, before we consider the questions, whether successive partial losses to a vessel can be put together to make up five per cent., and whether, if it appears that the vessel has sustained damage by sea perils to the amount of ten per cent, or more, the burden is on the plaintiffs or defendants to show that in fact any part of such sea damage was equal to less than five per cent., arising from any one cause. The report must therefore be recommitted to the assessor. If injury was done to the vessel by successive causes or sea perils, the assessor will, if possible, ascertain the extent of each, and the cost of repairing each separately. Report recommitted.
At July term 1869 the assessor made his second report, which stated the history of the voyage and the proceedings at Apia, substantially as above; and the residue of which was as follows:
“ The cost of the repairs made at Lahaina was not shown, and no repairs were made at Apia. No expert gave an opinion as to what it would have cost to repair, either temporarily or permanently, the injury sustained in the first gale by the starting of the stem from the keel; or in the second gale by the opening of tht garboard seam. The assessor is therefore un* [529]*529able to ascertain the extent of the damage suffered in either gale, or proximately to determine what would be the cost of repairing it.
“ A question was made whether there was any connection between the two injuries ; whether the starting of the scarf did or not occasion the opening of the garboard seam. It is of course impossible to determine this question with anything like certainty. Garboard seams have opened while the stem was fast to the keel. It will be readily perceived that the working of the stem would help to open this seam. And upon the opinion of the experts I find that the opening of the gar-board seam is, in this case, attributable to the working of the stem.
“ The plaintiffs introduced evidence tending to show that the ship could not have had such thorough repairs of the first injury at Apia, as would have rendered her seaworthy for her voyage; but that they might have been so far repaired as to enable her to proceed to Sydney, New South Wales, the best and most accessible port where the same could have been thoroughly repaired. The defendants introduced evidence tending to show that such were the facilities for repairing ships at Apia, that the Rambler might have been put in a seaworthy condition. What would have been the cost of repairing said injuries to the ship was entirely a matter of opinion, depending upon what it would be necessary to do to her. The experts called by the defendants were of opinion that it would be necessary to discharge the cargo, heave the ship down, and strip off the sheathing above the place of the leak; if the garboard streak was sound, to caulk it; otherwise, to repair with a new piece so much of the old plank as proved unsound, and no more. The plaintiffs’ experts were of opinion that, to thoroughly repair said injury to the ship, which had been so strained, it would be necessary to strip her entirely and recaulk her all over. In this conflict of opinion, I find that the injuries to the ship could not have been thoroughly repaired at Apia, though I cannot adopt the estimate of the cost of needful temporary repairs at Apia made by the plaintiffs’ witnesses.
[530]*530“ I find the cost of such repairs of said injuries to be $2000, including the expense of raising the money; and I find it would have cost $10,000 to repair the said injuries to the ship thoroughly at Sydney. Two thirds of this sum, added to the cost of the temporary $2000, make a total of $8867. Of this sum Paddock should recover one sixth, to wit, $1477.83, and Field, $1034.48, with interest.
“ I have not made a general average account, as I understand that by the rescript of the court the plaintiffs are restricted to the recovery for partial loss of the vessel.”
The defendants excepted, First. “ To so much of the finding of the assessor’s report as connects the loss occasioned by the starting of the scarf in the gale of August 1855, with that occasioned by the opening of the garboard seam in the gale after leaving Lahaina.” Second. “ To the finding of the assessor, that such repairs could not be made at Apia as would render the vessel seaworthy for the voyage.” Third. “ To the finding which allows the whole cost of temporary repairs made at Apia, and adds the same to two thirds of the cost of repairs made at Sydney.” Fourth. “ To the finding that the plaintiff Paddock is entitled to recover $1477.83 and interest, and the plaintiff Field $1034.48 and interest; and the defendants submit that they are not entitled to recover any sum whatever.”
The assessor, at the request of the defendants, and against the objection of the plaintiffs, reported so much of the evidence as related to the findings thus excepted to. And the questions raised by these exceptions were reserved by Ames, J., for the decision of the full court, before which the case was now argued by the same counsel.
Gray, J.
Several of the exceptions taken by the defendants to the assessor’s report relate to mere questions of fact.
1. The learned counsel for the plaintiffs contends that it is not competent for the assessor to report the evidence, nor for the court to examine it, for the purpose of revising his findings upon these questions. But this position cannot be maintained. Whenever in any civil action, facts are found otherwise than by the judge, the findings are subject to the revision of the court, [531]*531upon the evidence being properly brought before it. Even the Verdict of a jury may be set aside as against evidence and the weight of evidence. When a case at law or in equity is referred to an auditor, his report is made by statute primd facie evidence only at the trial or hearing, and even his findings upon questions preliminary to the admission of testimony may be revised by the court upon a motion to recommit his report. Gen. Sts. c. 121, § 46. Morgan v. Morse, 13 Gray, 150. Crafts v. Crafts, Ib. 360. Kendall v. May, 10 Allen, 59. Whenever, in the absence of special provisions of statute or of the rule of reference, a case at common law, or in equity or admiralty, is referred to a subordinate officer, for the purpose of finding facts and reporting them to the court, whether he is styled assessor, auditor, master in chancery, or commissioner, his findings may be reviewed by the court; and the appropriate way of bringing them before the court for this purpose is by specific exceptions to his findings, and by his report of the evidence upon the points on which exceptions are taken; but his findings have the weight of a verdict, and, especially when they depend upon a conflict of testimony, are not to be set aside unless they clearly appear to be erroneous. Donnell v. Columbian Insurance Co. 2 Sumner, 366. Taber v. Jenny, 1 Sprague, 315. Heebner v. Eagle Insurance Co. 10 Gray, 131, 143. Fisk v Gray, 100 Mass. 191. Dean v. Emerson, 102 Mass. 480.
2. On the question whether the starting of the scarf of the stem did or did not occasion the opening of the garboard seam, the statement of the assessor, “ that it is of course impossible to determine this question with anything like certainty,” is not inconsistent with the affirmative thereof being established by a fair preponderance of the evidence. And his finding accordingly is not shown, upon a careful revision of the testimony, to be so clearly erroneous that it should be set aside.
3. The assessor’s finding that such repairs could not have been made at Apia as to make the vessel seaworthy for the voyage is founded upon the weighing of conflicting testimony and must also stand.
[532]*5324. In recommitting the report to the assessor, his attention was called to the distinction between injuries caused by perils of the sea, and defective condition of the vessel arising from wear and tear and other ordinary causes. He must be presumed to have kept in mind this distinction. And upon ei fair construction of his report, the injuries which he finds to have been proved must be taken to be injuries by perils of the sea only.
Having thus disposed of the exceptions to the assessor’s report, so far as they relate to questions of fact, we proceed to the consideration of the exceptions in matters of law.
5. The first of these presents the question whether the partial losses of the vessel, the one before putting into Lahaina, and the other after leaving that port, can be added together to make up five per cent, on the valuation, within the meaning of the clause in each policy, which declares that the insurers “ shall not be liable for any partial loss” on other goods than those previously specified, or on the ship or freight, “ unless it amount to five per cent., exclusive, in each case, of all charges and expenses incurred for the purpose of ascertaining and proving the loss.”
It is universally admitted that this clause was inserted in policies of marine insurance to prevent dispute and litigation about losses of trifling amount, arising from the perishable nature of goods, or which might reasonably be borne by the assured as coming within the common wear and tear of the ship. The words of the clause exclude every distinct loss not exceeding five per cent.; for they declare that the insurers shall not be liable “for any partial loss,” unless it amounts to the requisite percentage; and adding- two such losses together does not change the nature or the amount of either.
The earliest decision upon this point is that in which this court in 1828 adjudged, in the case of a vessel insured by a policy of this form, “ that distinct and successive losses are not tc be added together in order to make up the five per cent.; but that the damage from disasters happening at one time, or in one continued gale or storm, is to be considered by itself.” Brooks [533]*533v. Oriental Insurance Co. 7 Pick. 259, 267. Whether the same role would apply to cargo was then left, and is still, an open question in this court.
In 1832, it was held by the English court of exchequer, that under the words “ free from average,” “ on all other goods and on ship, under ¿63 per cent., except general,” a partial loss of the ship, by stranding after entering a river, might be added to a previous loss of a boat at sea, in order to charge the underwriters ; although each of the losses, taken by itself, was less than three per cent., and there could be no difficulty in estimating the amount of each separately. Blackett v. Royal Exchange Assurance Co. 2 Tyrwh. 266, and 2 Cr. & Jerv. 244. That case illustrates how far the construction contended for by the plaintiffs, if adopted, may be carried. It was decided before the English courts had become accustomed to refer to American decisions upon questions of maritime law. The only reason given is, that the words were ambiguous, and introduced an exception for the benefit of the underwriters, and should therefore, “ in the absence of usage and authority,” be construed most strongly against them. And the words in that policy, “free from average,” though substantially equivalent to the words in these, “ not liable for any partial loss,” did not perhaps so clearly suggest a distributive effect.
In 1836, Mr. Justice Story, while expressing his regret at the narrow ground upon which the English decision was placed, declared that, if he had been called upon to give a construction, “ wholly independent of authority or usage,” to the clause in its American form, in a policy of insurance upon a ship, the strong inclination of his mind would have been towards holding it to apply, even in that case, to an aggregate of losses during the whole voyage. But the matter in judgment before him concerned only the cargo; for the partial loss of the ship was not proved, upon either construction, to exceed five per cent. And after "fating the rule affirmed in Brooks v. Oriental Insurance Co., he said that, although upon questions of commercial law tile courts of the United States were not generally considered to be absolutely bound by the decisions of the state courts, yet, [534]*534in deference to the opinion of this court, and from his own anxiety to follow the current of decisions upon commercial questions, (“ as to which,” he observed, “ Lord Mansfield’s remark is well founded, that it is less important how they are settled than that they should be settled,”) he “ should implicitly have adopted this doctrine on the present occasion, if it had been applicable to it,” Donnell v. Columbian Insurance Co. 2 Sumner, 366, 378.
Those reasons apply with increased force to an attempt, first made after the lapse of nearly forty years, to induce this court to overrule its own decision upon a question of this kind. The parties to these policies, and all others making contracts of insurance in this form, (which they might have varied at their pleasure,) may reasonably be supposed, in this Commonwealth at least, to have acted on the rule of law as thus established, and great injustice might be done by now adopting a different construction of the same words. Blanchard v. Equitable Safety Insurance Co. 12 Allen, 386.
6. The defendants, by the terms of their policies, not being liable for a partial loss unless it amounted to five per cent., or the ship was stranded, the plaintiff has the burden of proving a loss from a cause and to an amount for which the defendants are liable. Such was the rule applied by this court to a clause similar in form to that now in question, and providing that the insurers of a steamboat should not be liable for any breaking of the machinery, unless occasioned by stranding. Heebner v. Eagle Insurance Co. 10 Gray, 131. So, in the present cases, if the plaintiffs seek to recover for a partial loss, either upon the ground that it was occasioned by stranding, or that it amounted to five per cent., they must prove the fact necessary to charge the underwriters. The affirmative of the proposition rests with the plaintiffs; the means of proof, to say the least, are as much within their knowledge and reach as within those of the defendants ; and the difficulty of proving the amount of loss from any one cause is no greater than that of furnishing evidence which would enable the assessor to distinguish between injury to the vessel by perils of the sea, and defective condition attributable to wear and tear and other ordinary causes, which, when these [535]*535cases were last before the court, the plaintiffs were held bound to produce.
The plaintiffs have failed to sustain the burden, thus resting upon them, of proving the amount of the partial loss by each peril; and it would be useless to again recommit the report, inasmuch as the assessor, after having been directed, upon the former recommitment, if injury was done to the vessel by successive causes or sea perils, to ascertain, if possible, the extent of each, and the cost of repairing each separately, now reports that he is unable to ascertain the extent of the damage suffered in either gale, or proximately to determine what would be the cost of repairing it. The loss which he finds to have been occasioned by the two gales amounts, after making the deduction to be presently mentioned, to more than ten per cent, on the valuation of the vessel. The amount of the loss caused by one of the gales must therefore have been more than five per cent. Whether the amount of the loss caused by the other did or did not reach five per cent, is left in doubt. As the plaintiffs cannot recover for a loss not proved to amount to five per cent., and as one of the losses is not proved to equal that amount, each of the plaintiffs must remit so much of the sum reported by the assessor as the insurers are not shown to be liable for, or, in other words, must deduct a trifle less than five per cent., or, what may for practical purposes be taken as the same thing, just five per cent., on his share of the valuation, from the amount with which the insurers are to be charged, and, upon making such remission, may take judgment for the residue.
7. The assessor having found that the ship could not have been thoroughly repaired at Apia, the amount of needful temporary repairs at that port is to be added to the estimated coat of complete repairs afterwards at Sydney. But the amount of such temporary repairs (including the necessary expenses of raising money therefor) as well as the amount of the final repairs, is subject to a deduction of one third new for old. Brooks v. Oriental Insurance Co. 7 Pick. 259. Orrok v. Commonwealth Insurance Co. 21 Pick. 456. Lincoln v. Hope Insurance Co. 8 Gray, 22, 26. The assessor having allowed such deduction from [536]*536the amount of the repairs at Sydney only, his report must be amended by making a like deduction from the amount of the temporary repairs found by him.
8. The plaintiffs’ claim to recover for a general average loss was rightly disallowed by the assessor. A general average loss is distinct in its nature from a partial loss ; it requires proof of a voluntary sacrifice for the benefit of the cargo and freight as well as of the ship, and is not ¿omputed in making up a constructive total loss, nor subject to the deduction of one third new for old. Greely v. Tremont Insurance Co. 9 Cush. 415. At the original trial of the present cases, the only claims made by the plaintiffs, or reserved for the determination of the full court, were for a total loss arid for a partial loss. The court decided that the plaintiffs were not entitled to recover for a total loss, and that the question of a partial loss must be referred to an assessor. 2 Allen, 93. And that question only was so referred. Under these circumstances, it was held, when these cases were last before the court, that it was too late for the defendants to contend that a partial loss could not be recovered because it had been merged in a total loss. The rule of practice, by the application of which the defendants were prevented from raising a question concerning the ground of action, after the reference to the assessor, which they had not previously suggested, is quite as applicable to the plaintiffs’ claim, first made at this late stage, not included in the original reservation, nor referred to the assessor, for a general average loss.
The result is, that from the amount of loss found by the assessor on the whole ship, $8666.67, there is to be deducted in the first place one third of temporary repairs at Apia, $666.67; and from the balance of $8000 is to be deducted five per cent, on the valuation, or $750, leaving the amount of the partial loss on the vessel $7250 ; of which the proportion due to the plaintiff Paddock is one sixth or $1208.33, and that due to the plain tiff Field $845.83, and interest.
Judgments for the plaintiffs accordingly.