Keeler v. Fireman's Insurance — 3 Hill & Den. 250

Majority

p. 250

Keeler vs. The Fireman's Insurance Company of the City of Albany.

Headnote

A vessel will not be considered seaworthy, within the implied warranty in a policy of insurance, if, in navigating a river where it is customary to take on board a licensed pilot, she proceed without one.

Otherwise if such be not the custom ; in which case the captain, mate or other person, possessing the requisite skill, may act as pilot.

Though the policy contain a clause expressly providing that the master or mate may act as pilot in certain specified waters; this will not be construed as negating their customary right to act in other parts of the voyage.

In an action on a policy executed in this state upon a schooner engaged in the coasting trade, it appeared, that while the schooner was proceeding up the Potomac river, steering for a port in Virginia, she was diverted from her course, and wrecked on the Maryland side; that there was a statute in Maryland for licensing pilots, which prohibited persons from acting as such without license; that the schooner in question was piloted by her mate —a man well qualified for the purpose, but who was not licensed ; and that it was customary for the masters and mates of vessels of the size of the schooner, and engaged in the same trade, to act as their own pilots. Held, it not appearing that the jurisdiction of Maryland extended over the waters of the Potomac, so as to subject to her laws vessels destined for a Virginia port, that the fact of there being no licensed pilot on board the schooner, constituted no defence to the action.

Semble, that as between the insured and underwriter, a statute regulation for licensing pilots and enforcing a monopoly in their favor by certain penalties, but containing no declaration that vessels shall be regarded as unseaworthy for noncompliance, is to be construed as directory merely; and though a vessel proceed with a pilot who is unlicensed, yet if he be properly qualified in other respects, this Will constitute no defence to an action on the policy.

If the master and crew of a vessel be ignorant and unskilled in the duties of their profession generally; this will amount to a breach of the implied warranty of seaworthiness, and discharge the underwriters. Per Cowbn, J.

Otherwise, tis to ighoranefe in respect to the particular navigation where the véa

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scl is lost; provided it appear to have had no connection with the disaster. Per Oowen, J.

If, in an action on a marine policy, the judge tell the jury that, in case the loss arose from “ want of ordinary prudence in the navigation of the vessel,” they should find for the underwriters; this will be regarded as equivalent to submitting the question, whether the loss arose either from ignorance or ordinary neg. led.

In general, whore a jury have passed upon conflicting testimony, the court will not disturb the verdict on the ground of its being against the weight of evidence.

Semble, that a deviation is not predicable of river navigation; especially under a mere time policy.

Even if the policy limit the vessel to a given geographical track, and, in navigating a river on her general course, she negligently and unskilfully depart from the channel, this will be no deviation in the legal sense. Semble.

The true objection to a deviation is, that the party contracting has voluntarily substituted another voyage for that which has been insured. Per Cowen, J.

Whether, in the case of river navigation, there may not be a deviation by such delay or other acts as are equivalent to substituting one voyage for another, quere.

The case of Jolly's Ex'rs v. The Ohio Ins. Co. (Wright’s Rep. 546,) commented on and questioned.

Action on a policy of insurance, tried at the New-York circuit, in November, 1841, before Kent, C. Judge. The policy-was for $2000, upon the schooner Merchant, “ at and from all ports and places in the coasting business, for eight months from the 18th of May, 1835,” &c. It contained no clause insuring against the negligence of the master or crew; and provided that the vessel should “ not visit any port south of the Chesapeake bay or east of Boston, without the consent of the company, unless obliged thereto by stress of weather.” The captain and mate were “ privileged to stand their own pilot up Delaware bay and river, Hudson river and Sandy Hook.”. The vessel was wrecked in the Potomac river ; and this action was brought for the loss.

It appeared on the trial, that on the 11th of November, 1835, the schooner passed Smith’s Point, at the mouth of the Potomac, on a voyage from New-York to Alexandria and Georgetown. While pursuing her course in a dark night, the binna

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de light went out, the vessel left the channel leading to the Virginia ports, passed to the Maryland side of the river, and struck on Herring Island shoal, where she was wrecked. Evidence was given on the question of neglect, and as to the cause of the light going out. It further appeared that there was no licensed pilot on board ; but that the vessel was piloted by one Cossey, who was well acquainted with the navigation of the Potomac, and who shipped at New-York as mate and pilot. It was proved to be customary for the masters and mates of vessels of the size of the one in question, engaged in the trade to Alexandria and Georgetown, to act as their own pilots; and Cossey was shown to have been a skilful, trustworthy pilot, and a good seaman. Several witnesses who knew him well, spoke highly and decidedly of his qualifications and good habits. There were no pilots to Alexandria or Georgetown holding a branch for the Potomac, and no regular pilots for that river, except on the Maryland side.

The defendants introduced in evidence a statute of Maryland, entitled u An act to establish pilots and regulate their fees,” passed Nov. 1803 ; also various supplementary statutes, It was proved by the defendants that branch pilots had been licensed, and were acting under those statutes when the Merche ant was lost.

One ground of defence urged was, that there had been a deviation. In respect to this, the judge, in charging the jury, said, a deviation was any departure from the course of the voyage from intention of gross negligence; that he did not regard this case as of such a character. If, however, the jury were satisfied that the vessel had been got out of her track from intention or gross negligence, they should find for the defendants ; but if from accident merely, that would not discharge the defendants. As to another ground of defence, viz, the unseaworthiness of the vessel for the want of a pilot, and the ex-tinguishment of the binnacle light, the judge said, he was not convinced that the jurisdiction of Maryland over- the waters of the Potomac was exclusive, so as to oblige vessels trading to

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ports in Virginia to take pilots; but however that might be, the laws of Maryland did not compel the taking of a pilot, so as, by the want of such pilot, to avoid the contract of insurance. And he instructed the jury that, if they should find the vessel had on board a person competent as a pilot, according to the usage in evidence, the defendants had not made out their defence on this ground ; and, as to the binnacle light, if the jury should find that it went out from any original defect, or any subsequent defect which might have been remedied before the loss, then the defendants would be entitled to their verdict—otherwise not. The defendants’ counsel requested the judge to charge, that, if the loss arose from negligence or ignorance of the master and crew, the defendants were exonerated. The judge said, that although such was not his opinion where the proximate cause of the loss was a peril within the policy, yet at the instance and with the assent of the parties, and in order that this question of fact might be enquired into, he charged that, if the loss arose from the want of ordinary prudence in the navigation of the vessel, then the jury should find for the defendants. He refused to charge, though requested by the defendants’ counsel, that, by the construction of the policy, the master and mate were precluded from acting as pilots up the Chesapeake and Potomac, or that, by the laws of Maryland, the vessel was bound to take a commissioned pilot— or that those laws went to prove that pilots could be had at the capes of the Chesapeake, &c.

The jury rendered a verdict in favor of the plaintiff for #2261,29 damages ¿ and the defendants now moved for a new trial on a case.

J. S. Van Rensselaer $r Willis Hall} for the defendants.

D. Lord, Junn for the plaintiff.

The first ground taken by the defendants’ counsel is, that the terms of the policy precluded

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the captain or mate from acting as pilot in the Potomac. The policy, for some reason, allows the captain and male to pilot up Delaware bay and river, Hudson river and Sandy Hook. It contains no express condition or negative against their acting as pilot in any other river; and cannot, I think, be understood as implying, that if either possessed competent skill, he might not do so. The permission was probably intended to be absolute in respect to the places particularly mentioned ; but at others, to require from the assured, that, at his peril, whoever acted as pilot, should possess the requisite qualifications. The case stands, then, upon the general doctrine, that in rivers &c., where it is not customary to take a pilot on board, the captain or mate being duly qualified, or any other competent person may be relied on. In the case before us, the actual pilot was one Cossey, the mate, shipped as such at New-York; a man, as was fully shown, eminently skilful and trustworthy both as a seaman and a pilot up the Potomac, possessing a thorough acquaintance wfith and having been long practiced in the navigation of the river and the general duties of a pilot. The rule laid down in the books that a vessel is not seaworthy unless a licensed pilot be taken on board for the navigation of a river, is put with the qualification that such a practice is customary at the place. (Law v. Hollingworth, 7 T. R. 160 ; 1 Phil, on Ins. 315.) Here the custom -was clearly shown to be otherwise.

Admitting that a licensed pilot might have been had at the mouth of the Potomac, and that the laws of Maryland required one to be taken, the vessel entered the river and was steering for a port on the Virginia side. There is nothing in the case to show that the jurisdiction of Maryland extended over the whole river, so that her laws would control vessels steering for ports in Virginia, or supersede the general custom in Virginia to sail without a licensed pilot. But if otherwise, it is a serious question whether the omission to take such a pilot would, j?er se, vacate the policy. Even if this policy had been effected. in Maryland, such a law would, I take it, be considered

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as merely directory; and unless it contained a clause expressly declaring the vessel unseaworthy for want of a pilot, it could not be received to overcome the fact that there was a pilot on board of capacity and integrity entirely proportioned to the difficulties of the navigation. The directions by law for licensing pilots on a river and enforcing a sort of monopoly in their favor by penalties, like the 5 Geo. 2, ch. 20, in respect to the Thames, have not, that I am aware, ever been extended to avoid a policy, merely because they may happen to have been disregarded. The question was raised, but not passed upon, in Law v. Hollingworth. The statute of Maryland produced in evidence amounts to no more.

In Warren v. The Manufacturers’ Insurance Company, ( 13 Pick. 518 ,) it was held that a non-compliance with the statutes of the United States, requiring that every vessel bound on a voyage across the Atlantic, shall have on board, well secured under deck, a certain quantity of water, under penalty of a certain sum of money to the crew or passengers, in case they shall be put on short allowance, did not ipso facto render the vessel unseaworthy, or the voyage illegal, so as to avoid a policy of insurance. (See also Ocean Insurance Company v. Polleys, 13 Peters’ R. 157 ; and Keir v. Andrade, 6 Taunt. 498.)

It would doubtless have been erroneous had the jury been charged that general ignorance and unskilfulness of the master and crew in their profession and business would not have rendered the vessel unseaworthy, and entitled the defendants to a verdict. (1 Phil, on Ins. 311, 312.) But I do not understand the learned judge so to have charged; nor that he was requested to charge the contrary. The request was indeed to charge that,<£ if the loss arose from the negligence or ignorance of the master and crew, the defendants were exonerated.” I understand this word ignorance as here used, to mean ignorance of the particular navigation of the river operating as the cause of the disaster. The judge then adds, that though his opinion was otherwise of the law, the proximate cause being a peril insured against, yet, as the parties had consented, he should

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charge, and did so, that if the loss arose from want of ordinary prudence in the navigation of the vessel, then the jury should find for the defendants. This charge followed the request, and covered the whole ground. The jury have found there was no want of ordinary prudence in the navigation of the vessel; and of course the loss could not have happened in consequence of ignorance or negligence. There is indeed no very great compass of skill required in these coasting voyages; but quoad hoc it must be competent as in all others; and a want of it at the outset, especially in the master, would be a fatal violation of the implied warranty of seaworthiness. Any subsequent and temporary state of unseaworthiness cannot operate as a defence, where it appears to have had no connection with the disaster. (1 Phil, on Ins. 332.) Here the jury have, by their finding, negatived any such connection.

The jury have also negatived by their finding on the same part of the charge, that there was any negligence which can furnish a color of defence. They say there was no violation of even ordinary prudence. It is insisted that the finding is against the weight of evidence. The question was very fully investigated, and the verdict passed upon conflicting evidence. There is clearly no such preponderance in favor of the defendants, that we should be warranted in disturbing the verdict.

The question upon the lowest degree of negligence having been thus found against the defendants, it of course disposes of the question of deviation so far as it depended on a departure from the proper track of the vessel through the higher degree, viz. gross negligence. Intentional departure was also put to them and they have found there wras none.

It is moreover quite difficult to perceive how deviation can be predicated of river navigation in almost any case, and especially under such a policy as this. It is a policy on time, covering all and any adventures to and fro in the whole region of the coasting trade from Albany round to Boston, and thence to Chesapeake bay, at the pleasure of the owners. That the' vessel could be said to deviate by pursuing any track within

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these limits, it would, I apprehend, be difficult to show. A deviation proper is always relative to the geographic line fixed by the policy. But if this had tied up her course from Albany to Georgetown or Alexandria, she being in the Potomac crowding sail for her port of destination, though so unskilfully as to go in the wrong channel—one that was never taken before for such a purpose—yet, so long as she kept the general course, of the river, she had not, I apprehend, deviated within the sense of the law. Jolly’s Ex’rs v. The Ohio Ins. Co. (Wright’s Rep. 540,) seems to suppose the contrary ; but stands better, I think, on the more general ground of a gross blunder in the master. (L odwicks v. The Ohio Ins. Co., 5 Ohio Rep. 435 .) Whether there may not be a deviation, in such case, by delay or other acts, whereby the party can be said to have voluntarily substituted another voyage for that described, it is not material to enquire., because there is no color for saying that any such act took place. 11 The true objection to a deviation is, that the party contracting has voluntarily substituted another voyage, for .that which has been insured,” (Lord Mansfield, in Lavabre v. Wilson, 1 Doug. 291 .)^[1]

The question as to the cause of the binnacle light being extinguished was also submitted to the jury ; and clearly their verdict should not, in this respect, be disturbed.

New trial denied.

(a) (a) See The Union Insurance Company v. Tysen, (ante p. 118.)