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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 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,” 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 there was no person to supply his place, that is, there was an insufficient crew. The ship, therefore, put back, not on account of any accidental distress, but of an original incompetence for the voyage.” Lord Tenterden, chief justice, said: “I think it is rather a question for the jury, whether the ship was competent for the voyage, than for me. A ship certainly is not fit for a voyage, unless she sails with a competent crew, a crew competent for the voyage, considering its length, and the circumstances under which it was undertaken. Do you think, considering the length of the voyage from Mauritius to England, that a ship can be sufficiently manned when in the event of any accident to the captain, there is no one else on board able to perform his duty 2 If not, the defendant must have a verdict.” The jury, which was special, found for the defendant. In the case as now submitted to you, gentlemen, if you are of opinion under all the circumstances of the case, that the barge Industry was seaworthy at the time she set sail from Montego Bay for the port of Quebec, you will necessarily find a verdict for the plaintiffs for the entire sum demanded. On the other hand, if you find that the vessel was not seaworthy, you will find for the defendants; and I beg you to lay out of consideration altogether, as to whether in the event of a verdict for the defendants, the plaintiffs have any recourse against the owners of the Industry, as their solvency or otherwise cannot be judicially known to the court or jury. Gentlemen, the case is in your hands, and I doubt not with persons of your experience, a correct result will be arrived at. Here the judge offered to read over the great mass of evidence which had been adduced, but the jury declared it was unnecessary. The jury then retired, and after an absence of five minutes, returned into court with a verdict for the plaintiffs, £2,000, with interest from the service of process.
* 7 B. & C. 798. * 7 B. &. C. 219. 3 Abbott, 208. * 1 Emerigon, 375; Molley, book 2, ch. 2, sec. 7; Roccus, Nos. 59 and (2 ; Fr. Ord, liv. 2, lit. du Capitaine, art. 8.
The above case having been also laid before chancellor Kent, of New York, and Sir John Campbell, attorney general of England, those gentlemen gave the following opinions thereon.
OPINION OF CHANCELLOR KENT.
I have examined and considered the annexed case submitted to me for my opinion. Both the vessel and return cargo were lost by a peril of the sea on the return voyage, and the assured claim a total loss on the policies effected at Quebec on the vessel and cargo. I am of opinion that the claim is well founded; the defence set up is a breach of the implied warranty of seaworthiness, inasmuch as the mate of the vessel on return voyage was not a person of scientific skill in navigation. The master on the outward voyage was discharged by the supercargo at Montego Bay where the outward voyage terminated. It was the undoubted right of the owner, (and the supercargo was here his representative) to change the master in his discretion, without prejudice to the policies, provided it was done in good faith and a substitute of competent skill provided. The supreme court of New York, in Walden v. Firemen's Insurance Company,’ say that the absolute right in such a case is unquestionable. In the case before me the former mate was appointed master for the return voyage, and of his competency to navigate the vessel on her return voyage from Montego Bay to Quebec there does not appear to be a question. One of the seamen was appointed mate instead of Dixon the former mate, promoted to the rank of master, and though that seaman was competent to discharge the duties of mate to which trust he was appointed, he had not the scientific skill in navigation ordinarily requisite for the due discharge of the duties of master. I do not think that at least in reference to the voyage in question, and under the circumstances of the case, the skill of a master was requisite in the mate, and that the vessel cannot justly or lawfully be deemed unseaworthy for the return voyage by reason of the want of a competent captain, mate, and crew. The case of Clifford v. Hunter, before lord Tenterden, at nisi prius, is the only authority that I am aware of, for the broad position that a ship is not seaworthy for a voyage from India to England with no other person on board capable of commanding, but the captain. I apprehend that such a general and unqualified doctrine was not previously to be found in the English, the Continental, or the American law of insurance. The code of insurance law is essentially the same every where, and is a branch of the international law of all maritime nations. Without questioning the high authority of the case so far as the distinguished and admirable character of the judge who pronounced it is concerned, it is to be observed that it was a nisi prius decision, very briefly reported, and never discussed in banco, and that after all the point was declared to be not a question of law but a question of fact for a jury. This takes away all the stubbornness from the case, and it is liable to be controlled and modified or set aside by circumstances. It was the case of an East India ship coming from Madras in India to Europe, and it has a very feeble application to the present case of a small schooner navigating along the American coast from Jamaica to the St. Lawrence, over a sea alive with the coasting trade, and with light-houses, pilots and harbors in abundance along the whole extent of the continent adjacent to the track of the voyage. Seaworthiness varies in its standard according to times, places, and circumstances. It has reference to the place and country of the vessel, to the usages of the trade, to the purposes of the voyage, and the character of the vessel. It varies in its degree and character in different voyages and in different parts of the same voyage. The general doctrine in all the books and in all the cases foreign and domestic is, that the vessel to be seaworthy must be tight, stanch and strong, sufficiently equipped, and manned for the particular voyage and conducted by a master of nautical skill. It is the master acting as master, and in him only, that the ordinances and books require the nautical skill and science of a navigator. Not one word is said in any case prior in time to the one above cited about the nautical science of the mate, and yet in long voyages, with large ships, over half the circumference of the globe, it would seem to be prudent to guard against the contingencies of accident, disease and death, and sometimes
* 12 Johnson, R. 128. * 3 Carr. and Payne, 16.