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in seamanship than knowledge in navigation. The vessel on her return voyage was wholly lost in the gulf of Florida, in a violent storm which she suffered there, but not from any fault or insufficiency of the mate, nor from any want of skill or knowledge of the master. She had been insured at the Canada Marine Insurance Company for £1200 on a policy made before she left Quebec, for the voyage out and back. On her return cargo there had been insured at the same office £2000 by a policy wherein Dixon, the new master's name, is given, the latter insurance having been effected after the change of master, and after that change was known at Quebec. The insurance as well on the ship as on the cargo is now resisted by the Canada Marine Insurance Company, on the ground that the vessel was not seaworthy at the time of her sailing from Montego Bay, she not having on board a mate of competent qualifications, as is alleged, nor any person capable of taking the command of her in the event of any accident happening to disqualify the master. The case was conducted by Messrs. Black and Aylwin for the plaintiffs, and by Messrs. Gairdner and Vaufelson for the defendants; and the jury were charged as follows, by Mr. Justice Bowen.—After the lengthy and patient examination which the case now submitted to your decision and verdict has undergone, this being the third day of the trial, I shall endeavor to condense the observations which it is my duty to make into as small a compass as possible. The case is one of much interest, and perfectly novel in the courts of this country—of much interest, as carried on between parties of such high respectability as the plaintiffs and defendants, and the sum at stake being large ; novel, inasmuch as questions relating to marine insurance could not have arisen here before the formation of the Canada Marine Insurance Company, which is but of recent date—and also novel, as involving a question which has not hitherto received a formal decision in any of the British or American courts of judicature. The action is in assumpsit, and brought to recover a sum of £2,000, on a policy of insurance effected with the Canada Marine Insurance Company, by the plaintiffs, on the twenty-third of Sep
tember, 1837, on goods per the barge Industry, Dixon, master, at and from Montego bay, in the island of Jamaica, to the port of Quebec, which vessel was lost in the gulf of Florida. To this demand, the defendants, being advised that the vessel was not seaworthy when she sailed from Montego bay, have pleaded the general issue, and you, gentlemen, have now a case to decide in which much conflicting testimony has been adduced by most highly respectable and intelligent witnesses on both sides. The defendants, however, much to their credit, have shown no disposition to throw obstacles in the way of the plaintiffs; on the contrary they have made ample admissions narrowing down the case chiefly to this inquiry, namely, whether to constitute the vessel seaworthy at the time of her departure from the island of Jamaica, it was or was not necessary that she should have on board a mate competently skilled in the science of navigation, capable in the case of sickness or death of the master, to navigate the vessel in safety to her port of destination. The defendants have been censured for raising this objection, and refusing to pay off the loss. I think the censure not merited, the directors of the company acting for the stockholders, if they were advised and conscientiously believed, considering the nature of the voyage and the very hazardous navigation in the gulf of Florida, that the vessel was not seaworthy, have merely exercised a right common to all, that of having the opinion of a court, and jury of intelligent merchants, upon the particular facts of the case. With these preliminary observations, I shall now proceed to state to you, gentlemen, what I understand to be the law of the case, and I do not hesitate to say, that there is no rule of law, no decision of any of the tribunals of Europe or America to be met with, declaring in terms, that under no circumstances can a vessel proceeding to sea be held seaworthy, unless she have on board at the time of her departure, a second person skilled in navigation. In every case, therefore, that arises, it becomes a mixed question of law and fact, under the peculiar circumstances in which the voyage is undertaken, the size of the vessel, the probable duration of the voyage, and above all, the intricacy and danger of navigation in particular places, whether 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.” 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,
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 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
* 7 Tenn. Rep. 709. * 1 Camp. 1. * 3 Dow's R. 57.
WOL. XXIII.-NO, XLV. 15