Whitney v. Ocean Insurance

Morphy, J., delivered the opinion of the court: This is a suit on a policy of insurance on the steam-boat Convoy. The insurance was for a voyage from New-Orleans to Mobile and back to this port. On her homeward trip, and when about entering the mouth of the Mississippi, the boat was lost, as is alleged by the perils insured against, to wit: the perils of the sea. The only question here turns on the seaworthiness of the boat, for not having had on board a competent pilot at the time the accident happened by which the boat was lost; sea [488] worthiness is Tan implied warranty in every policy of insu-ranee; to constitute it, a vessel must not only be tight, stai)nch and strong, but must be provided with every thing necessary for the purposes of safe and secure navigation. It . . „ ... , is a question of some mercantile interest, and comes before us, we think, for the first time. The testimony shows that the Convoy, on her outward trip to Mobile, took a pilot at the Balize. That when returning to this port, she was hailed by a regular pilot-boat at about eleven o’clock in the night and at a distance of twenty miles off the Mississippi; that on the offer of a pilot, the captain answered that he had no use for one, but that his boilers being damaged and out of order, he requested the pilot-boat to keep alongside of him until daylight, lest he should be blown to sea ; that the offer of a pilot was once or twice repeated, and again refused by the captain; that after giving the course and distance to the light-house, the pilot-boat left the Convoy ; that the next morning at about three o’clock, the boat reached the Balize, came to anchor, and shortly afterwards attempted to cross the bar without waiting for a pilot, or making any effort to procure one; that, in this attempt she struck on one of the outermost breakers and there went to pieces. There is some contrariety of evidence as to the immediate cause of the loss of this boat. The witnesses for the plaintiffs say, that it was owing entirely to the want of steam and sufficient sails to stem the current at the entrance of the Mississippi; that in consequence of this innavigability of the boat, she drifted while in the channel and in the very act of going over the bar; while the defendants witnesses testify that, inasmuch as the boat had been able to sail about twenty miles from the place where she was offered a pilot to the Balize, any regular pilot could have taken her safely into the Mississippi that very night, because the weather was clear and the draft of the boat light, and that the running aground on the outermost breaker from the bar, can only be imputed to the inexperience of those who undertook to bring her in the next day : but for the purposes of this inquiry it matters [489] not absolutely what was the immediate and true cause of this accident. The question before us, is ; has there been, in this case, a breach of the implied warranty of seaworthiness from the want of a competent pilot on board 1 If there has r r . , . been such a breach,, whether the loss-has been the immediate consequence of it or not, provided it can by any reasonable probability be ascribed to it, the underwriters are discharged from all liability. 2 Phillips on Insurance, 118; Hughes, 308; 1 Marshall, 165. The general rule is that in every well appointed port, where pilots are to be had, a vessel arriving upon pilotage ground is bound to take one. The duty is the more imperative on the approach to a river of difficult access where the navigation requires not only nautical skill, but local knowledge and constant practice. There are few states provided with as good a system of pilotage as we have ; the attention of our general assembly has been turned to the subject at a very early period, and from its importance it has been legislated upon from time to time up to the statute of 1837, which embodies most of the regulations to be found in the former enactments in relation to pilotage. It provides that branch-pilots shall be appointed, nof to exceed fifty in number; that they shall be citizens of the United States; shall have resided two years in the country ; shall undergo an examination ; give security for their good behaviour, and be commissioned by the state; their duties are pointed out, and the rates of pilotage fixed; and it is made penal for any person not being a branch-pilot, to pilot any ship or vessel in or out of the Mississippi when a branch-pilot offers, &c. Under a system of pilotage thus organized, it has not been, nor can it be denied, that the laws and usages of this port contemplate that all masters of vessels, when coming in or going out of the Mississippi, are to take a pilot on board, whenever it is practicable for them to procure one. There are, undoubtedly, cases in which the masters, for the safety of their ships, must take upon themselves to navigate them into the river without the assistance of a pilot. These cases must form exceptions to the rule, and must be adjudicated upon [490] according to their peculiar and respective circumstances. In the present case no stress of weather is alleged; no effort is shown to have been made to procuré a pilot on the day the boat was lost; it appears on the contrary, that the services of one had been repeatedly refused the preceeding night. But the plaintiffs contend that they have discharged their warranty to the underwriters as relates to a pilot being on board, because the captain of the boat was skillful and experienced, and that it is not usual for steam-boats trading between this port and Mobile to employ the commissioned pilots. This particular usage, tending so materially to diminish the security held out to the underwriters under the customary pilotage as regulated by law, should be established clearly and beyond contradiction, and should be shown to have been acquiesced in by those who are to be affected by it. In support of such usage, the record exhibits the declarations of several captains of steam-boats; they say that it, is not customary for a majority of the steam-boats engaged in the Mobile trade, to take in pilots at the Balize ; that they have never employed them, or at least very seldom ; and that they believe themselves as competent and as well acquainted with this navigation as any commissioned pilot. On the other hand, the defendants’ witnesses represent the usage of taking pilots at the Balize as general and common to steam-boats as well as other vessels ; they say that sometimes the Mobile steamboats steal out of the river by the pass a la Loulre, to avoid taking a pilot, and that frequent accidents have been the consequence of such a course of conduct. That it is a matter of rare occurrence for steam-boats to go out or come into the river without employing a pilot like all other vessels; and that on her outward trip, the Convoy herself conformed to this general usage by taking a pilot: the agent of the pilots testifies that he has collected pilotage fees from steam-boats as from other vessels. Thus it is seen, that this usage invoked by the plaintiffs is far from being firmly established, at least not so as to warrant the presumption that insurances are effected in reference to it. The competency of the captain is attested by two seamen who have sailed under his command [491] at different times; ihey declare him to be skillful, experienced, and well acquainted with the navigation of this river. In a port like this, where there are regular pilots commissioned by the state for the safety of our shipping, our insurance offices have a right to expect that the insured will avail themselves of their services and experience. - Nothing short of the most positive and uncontradicted proof of a particular usage with regard to steam-boats in the Mobile trade, could induce us to say that the insured can discharge their warranty of seaworthiness to the insurers, by administering proof of the supposed knowledge and experience'of a captain where his boat has been lost without having a pilot on board, and it was practicable to procure one. The competency of a captain would in every case be established by that kind of evidence, which is the easiest to be obtained-and the least to be trusted, to wit: the opinions which men of the same calling are always found willing on occasions of this sort, to express in favor of each other. Whatever may be our respect generally for the finding of juries in matters of fact; yet, when we disagree with them, it is our province, nay, our duty, to correct their errors of fact as well as of law. It is, therefore, ordered, adjudged and decreed, that the judgment of the’District Court be reversed; and that ours be for the defendants, with costs in both courts.