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hazardous to leave all the nautical science on board, to be confined to one single individual. But such remote contingencies are not perils within the purview of policies of insurance, and to place our American coasting and West India voyages within the discipline of lord Tenterdon's rule would be monstrous. It would destroy a large majority of all the policies effected on that trade within the last thirty years in our American insurance offices and which is generally carried on in small vessels, such as sloops, schooners, brigs, &c. There is not an instance in all the infinite and vexatious discussions in maritime insurance cases in the courts within the United States, in which such a stern construction of the warranty of seaworthiness has been stated or suggested. Nor do I think that the rule itself is well founded in the principles of insurance law: a ship is competently equipped for a voyage, if she has a master to command her of good character, science and skill, and a sufficient crew of active and experienced seamen. The assured do not undertake that the male shall also be fit to command with the science and accomplishments of the master. They do not undertake by any implied warranty to provide against the unforeseen and uncalculated contingency of the sickness or death of the master, mate, or crew. They might on the principle of the case in Carrington and Payne, be required to have a competent person on board to supply the mate’s place in case of the happening of such a contingency, and also an extra . number of skilful and hardy seamen to supply vacancies among them by sickness or death. Every vessel on such a doctrine would require at least three skilful navigators on board, in order to be competently equipped to supply vacancies. But the assured warrant no such thing. They warrant that there shall be a competent master to act as master, and a competent person to act as mate, and a sufficient and competent crew to navigate the vessel on the specific voyage, and they warrant nothing more. In my humble judgment, if the assured have a sound and well equipped vessel, and a competent commander as master, and a competent mate as mate, and a competent crew as seamen, they comply with
the warranty, and all subsequent casualties and calamities on the voyage must be borne by the insurer to the extent that the peril of the voyage are assumed by the contract. This I take to be the principle and spirit of the insurance cases. In Buck v. Royal Ex. Ins. Co., Bayley, J., declared that the owner of the vessel was bound in the first instance to provide the ship with a competent crew, and if at the time of the loss a competent crew be left in charge of the ship in her then situation (the vessel was in that case frozen up for the winter in the gulf of Finland) it was sufficient, and the occasional absence of some of the sailors was not fatal, as the mate was sufficient to take care of the ship in her then situation. It would be very strange if the underwriters, who were held liable in that case, should not be held liable in this, for here when the loss happened by a peril of the sea, there was a competent person discharging the duties of master and a competent person . discharging the duties of mate, and a competent crew all on board to meet and wrestle with the peril. We have a strong case on the subject in our New York insurance case, Treadwell v. the Union Ins. Co.; * in which the policy was on cargo on board the schooner Lodge on a voyage from North Carolina to New York, and the “captain at liberty to act as pilot.” The vessel sailed from Perquiman river in North Carolina, on the voyage, and was shipwrecked near cape Hatteras: one of the questions in the case was, whether the vessel was unseaworthy from the want of a competent master and crew. When she sailed on the 13th of September, the crew consisted of the “captain and one hand.” The master shipped another hand in cape Hatteras channel. It was shewn by proof at the trial that the captain and one sailor were competent for the river and sound navigation, and that “three hands” or persons were competent for the residue of the voyage; the master in that case was not acquainted with the science of navigation. It was shewn by proof that not more than one quarter of the masters of vessels of the size of the schooner Lodge, and engaged in that
* 2 Barn. & Ald. 73. * 6 Cowen's R. 270.
trade understood the science of navigation, and that this fact was generally known in New York, and it was proved to the satisfac. tion of the court and jury upon the trial, that the master was competent for the voyage though he was not a scientific navigator, and his competency as master in reference to the voyage was submitted at the circuit or nisi prius court in the city of New York to a jury, and a verdict found for the plaintiff. On motion for a new trial before the supreme court, the question was ably discussed by a first commercial counsel in the city and the verdict sustained. I presume that there is not any material difference in the usage and customs of commerce between voyages from Quebec and from St. Johns, Boston, or New York, to the southern states, and the West Indies, and back again ; that, generally speaking, a similar spirit of economy and enterprise prevails in the outfits as to the competency of the master and crew in science and numbers. The case before me states that it was testified by several masters of ships not to be an unfrequent case that mates of vessels were without the knowledge of navigation, and that this was not deemed essential to the discharge of their duties as mates. This fact is of decisive moment in the case, and shews that the usages and sense of the mercantile community are the same at Quebec and New York. The schooner Industry in the present case was extremely well equipped for a vessel of her tonnage and character; she had a competent master and mate and a crew of ten men for the return voyage, and to deny the rights of recovery on the ground that the mate did not unite with his competent qualifications as mate the superior qualifications of a master, when he was only called to act as mate and could not act in any higher character, would appear to me to be renugnant to the contract, and to justice. The original master was discharged by the supercargo at Montego bay, and we are to presume for sufficient cause and certainly in good faith, and the case states that the new master (Dixon) and the supercargo made deligent search and inquiry, but without success, for a new mate competent to navigate; and the seaman that was taken for that purpose from necessity was fully competent to act as mate though not as master. When all is done to supply any deficiency in the course of the voyage that due diligence dictates, it is all that is required therein. Phillips v. Headlam; the ship was insured from Liverpool to Sierra Leone and at the mouth of that river there was a regular establishment of pilots. The vessel arrived off the harbor at 3 P.M., and hoisted the signal for a pilot; none came, and at 10 o’clock P. M., the captain judged it proper to attempt to enter without one, and the ship took ground and was lost. It was left to the jury to determine whether the master did what a prudent man ought to have done under the circumstances, and a verdict was found for the assured. On the motion for a new trial the king's bench held that the captain, being a person of competent skill, and having used diligence in seeking a pilot and exercising his discretion in good faith, did all that could be required by law, even if he acted erroneously, and the insurer was liable for the loss.
The doctrine of that case is strongly applicable here to the conduct of the supercargo in his selection of the new mate at Montego bay, and I have no doubt that under the circumstances of the case before me the insured in the policies on the vessel and on the cargo are entitled to recover. The construction of the warranty of seaworthiness is understood to be the same on the ship, freight, and cargo.”
OPINION OF SIR JOHN CAMPBELL.
This resolves itself into a question of fact for a jury rather than a question of law. I conjecture that a jury would find the underwriters liable if it should appear that in such a vessel (a schooner ot 156 tons,) the master was well qualified to take observations and make nautical calculations, although the mate could not do more than discharge the duties belonging to good seamanship. The vessel could hardly be considered unseaworthy because the contingency of the master being disabled during the voyage was not provided for.
1 2 Barn. & Adolph. 380.
* * Taylor v. Sewell, 3 Marsh, R. 331; Merchants' Ins. Co. v. Clapp, 11 Pickering's R. 56.
VIRGINIA. The general Assembly of this state, at its session which commenced Jan. 7, and terminated April 10, 1839, passed two hundred and seventy-eight statutes, one hundred and two of which are of a public and general nature, and fifteen joint resolutions. Devises to Schools, &c. All devises or bequests of lands, tenements, hereditaments, goods and chattels, stocks and choses in action, hereafter given or made, for the establishment or endowment of any unincorporated school, academy, or college, for the education of free white persons, are declared to be good and valid, provided such devise or bequest be not made to any theological seminary. Chap. 12, §§ 1 & 7. Absent Debtors. The provisions of law, in regard to the recovery of debts from absconding debtors, are extended to the recovery of debts not exceeding twenty dollars, from non-resident debtors. Chap. 64. False or Fictitious Names and Firms. No person shall transact any business whatever in the copartnership name and style of himself and any other person, who is not liable for the debts incurred in the course of the business; and no person shall transact business in his own name, with the addition of the words “agent,” or “factor” merely, without adding thereto the name of his principal, and no person shall transact business under his own name, with the addition of the words “and company,” or “& Co.” unless some actual partner be represented thereby. And if any person shall offend against the provisions of this act, or either of them,