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the vessel is to be considered seaworthy or not. The definition of a marine insurance is this-a marine policy contains in general, that the underwriters cause the assured to be insured in a certain sum on ship, cargo, freight, or profits, for a certain voyage or time, against the enumerated risks; for which they confess themselves to have been paid a premium at a certain rate per cent. These are the leading and substantial parts of every policy, and in connection with these are introduced all the provisions, stipulations, conditions, and warranties. The assured is understood, by the act of procuring the policy, to warrant that the vessel is seaworthy and in every respect fit for the voyage or service on which she is employed. This agreement is uniformly a part of the contract, though it is never expressed in the policy. Again, by effecting a policy, whether it be on the ship, freight or cargo,or the commissions or profits to accrue upon the cargo,—the assured is always understood to warrant that the ship is seaworthy, or that the materials of which the ship is made, its construction, the qualifications of the captain, the number and description of the crew, the tackle, sails and rigging, stores, equipment and outfit, generally are such as to render the ship in every respect fit for the voyage insured. If the ship be not such as the assured is understood, by effecting the policy, to warrant, the condition on which the liability of the underwriter depends is forfeited, though the unseaworthiness arises from some latent defect which the assured could not have prevented or discovered. Lord Redesdale said, "Unless the assured were bound to take care that the vessel was in every respect seaworthy, the consequence would be to render those chiefly interested much more careless about the condition of the ship, and the lives of those engaged in navigating her."1 I shall now state to you, gentlemen, what constitutes seaworthiness, and in the general acceptation of it, the rule is, that a ship must be seaworthy at the time of her setting sail on the voyage insured.' For, to use the words of lord Kenyon, if a ship be not seaworthy or in a proper condition for sailing during a part of the voyage,

13 Dow's R. 60.

21 Dow, 344.

nothing which happens afterwards can better her original situation, or restore the underwriter's liability.' The case which I am about to cite to you certainly bears some analogy to the present one, more particularly if you should be of opinion that the mate ought to have been acquainted with navigation. The plaintiffs admit it would have been prudent and highly desirable to have had a mate on board the Industry so qualified, and they have proved to you that not only Dixon, the master, but Ryan, as supercargo from Quebec to Jamaica, and also the consignees of the cargo, used every diligence to procure a mate at Montego Bay, previous to the sailing of the vessel, but without effect, and that thereupon one of the crew, who was an able and competent seaman, though he could neither read nor write, or take an observation, or work the ship's reckoning, was appointed mate. The case to which I allude, is that of a ship which insured for a voyage from Cuba to Liverpool, the proper complement of the crew for that voyage being ten men, but the master being unable to procure ten men at Cuba, who would engage to go as far as Liverpool, took on board only eight men at Cuba, who were engaged as far as Liverpool, and two who were engaged to go part of the way, namely, as far as the island of Jamaica; it was held the ship was not seaworthy when she sailed from Cuba, and that the circumstance of her having become seaworthy after her leaving Cuba and before the loss, did not entitle the assured to recover. Not only must the hull of the ship be tight, stanch and strong, but the vessel must be properly equipped with sails, so that she may be enabled to keep up with her convoy, and get to her port of destination with reasonable expedition, for a ship ought to be rendered reasonably secure against capture as well as against the other perils which she is likely to encounter. So the ship must be provided with sufficient ground tackle for the service in which she is engaged; and, therefore, where the best bower anchor and the cable of the small bower anchor were defective, the vessel was held not be seaworthy. The vessel must

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also be provided with a sufficient crew and a captain.' On a long voyage there should be some person besides the captain who can take the command, if he be ill.' The case in which this latter dictum of lord Tenterden is to be found, I shall have occasion to refer to presently; it is the one in which, (for the first time,) such a broad position has been stated—and it may be observed, en passant, it is the single opinion of a judge, (highly respectable no doubt,) but given at nisi prius, the authority of which, not having undergone discussion in banco, may yet be considered questionable. Seaworthiness depends in part upon the capacity of the captain and his skill in his profession. The court was inclined to hold a vessel not to be seaworthy, the captain of which, from ignorance of the coast, mistook Barcelona for Tarragona. Mr. Justice Platt, in giving the opinion of the court said, I consider the contract to be essentially this; that the assured shall, in good faith, employ a captain of competent skill, and general good character. The assured is bound to provide a competent captain, crew and ship, in the first place, but such a captain and crew being once provided, they are as much the agents and representatives of the underwriters as of the assured, in respect to every thing coming within. the sphere of their duty in the navigation of the ship; and though barratry be not covered by the policy, still if losses happen by the enumerated perils, in consequence of the mistakes or negligence of the master and crew, the underwriters have no right to impute the fault to the assured, who, in the outset, provided a competent crew, any more than they can object to a loss that happens in consequence of some insufficiency of the ship, arising after the risk commences, a seaworthy ship having been provided at the outset; and there are certainly not wanting reasons and a number of decided cases in favor of this position. We have two decisions directly in support of such a doctrine. Lord Tenterden says, in a recent case: "We are all of opinion that underwriters are responsible for the misconduct and negligence of the captain and crew, but the owner, as a condition precedent is bound to provide

18 T. R.

14 East, 481.

* 1 Moody and Malkin, 103.

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a crew of competent skill." So in another case, a ship fastened to the quay, by a rope, fell over on her side, when the tide left her, in consequence of the insufficiency of the rope, and was injured thereby. Mr. Justice Bayley said: "The underwriters are liable for a loss, the proximate cause of which is one of the enumerated risks, though the remote cause may be traced to the negligence of the master and mariners. The contract of insurance properly so called is clearly void, if the ship at the commencement of the voyage be not seaworthy, although the person who has effected the insurance is ignorant of that circumstance. And not only must the ship and her furniture be sufficient for the voyage, but she must also be furnished with an adequate number of persons of competent skill and ability to navigate her. And for sailing down rivers, out of harbors, or through roads, &c., where either by usage or the law of the country, a pilot is required, a pilot must be taken on board. From all that has been said, you cannot fail to perceive, gentlemen, that in every case it is a question of construction bearing upon peculiar circumstances and the nature of the voyage to be performed, and that nowhere is mention to be found that the mate ought to be a navigator. The captain and a competent crew is all that is required. The plaintiffs contend, and a great majority of their witnesses prove, that in their opinion, the barge Industry was amply manned and equipped for the voyage from Montego Bay to Quebec ; most of them have likewise deposed that they consider it a mere coasting voyage, as the ship need never be out of sight of land for above a day and a half, and that at any time they could make the east coast of Florida and the United States, and that with a fair wind Nova Scotia might be reached in eight days. The defendants, however, contend, and have produced no less respectable witnesses, who depose that the voyage is a most dangerous one, infinitely more so than to cross the Atlantic; indeed one of the plaintiffs' own witnesses, captain John Walter Douglas, as well as captain Bayfield, of the royal

3 Abbott, 208.

1 7 B. & C. 798. 27 B. &. C. 219. 4 1 Emerigon, 375; Molley, book 2, ch. 2, sec. 7; Roccus, Nos, 59 and (2 ; Fr. Ord. liv. 2, lit. du Capitaine, art. 8.

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navy, and captains Hunter, Maxwell, and Tuzo, have expressed their opinions that for such a voyage, which they designate as highly dangerous, a vessel with but one navigator is not seaworthy. A vast majority of the witnesses, however, swear they think otherwise, and would prefer to have as mate, a skilful seaman who was not a navigator to one who was skilled in navigation but was not an able seaman. The defendants' counsel have cited a passage or two from Bell's commentaries on the law of Scotland, under the title of insurance, to this effect. "The captain and crew must be of sufficient skill and strength for the voyage." And again: "That a deficiency of force in the crew, or of skill in the master, mate, &c. is want of seaworthiness;" by the words want of skill in the master and mate does not necessarily imply, as has been insisted upon, that the mate ought to be a navigator, and Bell, in his note to the latter passage refers to the case of Wedderburn and Bell,' which I have now before me, and which I beg leave to read, and from it you will find that no such position is attempted to be maintained. The case upon which the defendants mainly rely for a verdict in their favor is the case before alluded to of Clifford and Hunter,2 before lord Tenterden. The case was in assumpsit on a policy of insurance on sugar from the Mauritius to London. The vessel had originally sailed from Madras with a captain, two mates and a full crew of sailors. On their arrival at the Mauritius, the captain was very ill and continued so while there. He set sail, however, on his voyage homeward with the same crew. The next day his illness increased, and feeling himself incompetent to the charge of the vessel, he inquired of the other officers whether they could manage the voyage to England, but found no one capable to undertake it. He, therefore, put back towards the Mauritius to get some other officer, and on his way thither the ship was lost by perils of the sea. The attorney-general for the defendant said: "The return towards the Mauritius is a deviation, and avoids the policy, unless it were necessary under the circumstances. But the only circumstance to render it necessary was, that the captain being ill

1 1 Camp. 1.

2 M. & M. 103.

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