#### M'Millan & Ewart *v.*The Union Insurance Company.

Where the master fails to employ a *pilot*to navigate a vessel in coming1 into or leaving- a port, where it is customary to do so, (as the port of Charleston,) and a loss happens in consequence of a pilot not having been employed, the underwriters upon a policy on the cargo would be discharged. But if the vessel pass uninjured through the dangers, to avoid which api-_ *lot*is usually employed, and the loss happens at a point beyond which the, pilot’s' services ceases to be necessary, the assured would be entitled to recover.

It is an error to consider the employment of a pilot, in coming into or leavings a particular port, as a part of the seaworthiness of the vessel; nothing can enter into that which is not for the whole voyage. The business of a *pilot*is merely *temporary.*He is a part of the crew of a vessel for only a few miles, or a few hours. He navigates her only occasionally. Under such circumstances, it would be an abuse of terms to say, that a competent pilot was necessary to make a vessel *seaworthy.*The true principle seems to be, that if a vessel, without a pilot, sustain injury in entering or leaving a harbor where it is customary to have a pilot, such injury does not come within the perils insured against. *It is not a peril of the*sea.— It is a loss from the bad navigation of the vessel, and is to be set down to the fault of the *master,*and consequently the *owners*would be liable and not the *underwriters.*[Per O’Neaix, J.]

*Before O’NEALL,*/., *at Charleston, May Term,*1837.

The following is the report of his honor the presiding judge :— “ This was an action on a policy of insurance, to recover the value of sixty-two bales and three hnndred and seventy-eight pieces of cotton bagging, shipped by the plaintiffs from Charleston to Mobile, on the schooner Minerva, of Thomastown, Thorndyke, master, which vessel, cargo, and all her crew and passengers were lost in the gale of the 28th and 29th of October, 1835. The vessel was staunch and well found. On the 28th of October, when about to sail, the master applied for and obtained twenty dollars to pay the pilotage. He spoke to a pilot to accompany him beyond the bar; the forepart of the day, however, wore away, the vessel had *249not sailed, and the weather becoming more threatening, the pilot refused to go. The wind was blowing strong from the N. E., as it had been for some days; and all the pilots, and several others examined, agreed in saying that it was very imprudent to go to sea in such weather: indeed, they said, they would not carry out a vessel in such weather. Others, however, said that they had seen vessels go to sea in weather fully as bad: the master’s view of the matter when about to sail, was, that as the gale had prevailed already for several days, it was pretty well over, and by sailing then he should have for some hours the tail of the gale to help on towards his port of destination, and if he waited for it to subside, he should probably be detained some time in port, before he could obtain a favorable wind. He sailed between twelve and one, when the tide was flood, and when the wind had diminished, *without a pilot.*His vessel drew eight and a half feet of water, according to his own account; but being only partially loaded, Mr. Cohen, the merchant who cleared her out, said he did not think she drew more than six and a half to seven and a half feet. When the captain came in'to Charleston, *he came in without a pilot.-*The wind was fair to cross the bar by the *Overall*channel, through which the Minerva went to sea. To run through on a straight course, a vessel would cross the *dry breaker,*on which the water is eight feet. Mr. Elford, the keeper of the Observatory, proved that the Minerva crossed the bar, and stood out to sea, east. He said when he last observed her, she must have been from five to ten miles beyond the bar. The pilots Lee, Newboldt, Chapman and Davidson, saw the Minerva going out; they all said it *was barely possible she might have gone clear: they all thought she must have struck.*Mr. Lee said he saw her in the channel and afterwards beyond the bar. The Minerva was found sunk, by Capt. Baker, off Port Royal, in nine fathoms water, ten or fifteen miles from land; the time when so found was uncertain, it was, however, most probably within a few days after her loss. From her situation when found, which he and his mate described, Capt. Baker, his mate, Mr. Cross, Capt. Callender and Mr. M’Nellage, all agreed in saying that she was probably not injured in crossing the bar: and that she had been capsized in the gale. The pilots Lee and Chapman, also met *250with the wreck: and according to their proof, the wreck was within fifteen miles of the Charleston light. The night after the Minerva sailed, the wind changed to S. and S. E. and blew a hurricane that night and the succeeding day. Capt. Thorndyke, from the knowledge had of him during the short time he was in Charleston, appeared to be an intelligent, sober, and active seaman. The custom of the port that vessels coming in or going out should have a pilot, was fully proved: so was the necessity of such a custom. It did, however, appear, that vessels occasionally came in and went out without pilots. I instructed the jury, that generally, *insurance*extended to all perils which would not charge the shipowners : where they were liable, the underwriters were generally not; as in cases of unseaworthiness of the ship, or a voluntary deviation from the voyage, not amounting to barratry on the part of the master or crew. Barratry may be defined to be any fraudulent act of the master or mariners, by which the subject matter insured might be endangered. In this case, the only act which had the semblance of barratry was, that the master received the pilot-age and sailed without a pilot; but that, I thought, was not attributable to fraud ; the master spoke to a pilot and intended to have availed himself of his services. The pilot’s refusal to go was the cause of his sailing without one. I said to the jury that the ship was the substratum on which the insurance rested; and unless her value, if she was insured and lost, could be recoverd, it was seldom if ever the case, that the underwriters would be liable for goods shipped on board of her and insured. It was hence a first inquiry, in a case like the present, to ascertain the seaworthiness of the vessel, which I defined to be the *capability under ordinary circumstances of performing the voyage before her.*I said to them, that “ in navigating a river, or approaching, or leaving a harbor where it is *customary*for vessels of the burthen and description of that insured, to take a pilot, the vessel is not seaworthy unless she have such pilot.” — Law v. Hollingsworth, 7 T. R. 156. I instructed the jury to inquire, 1st, is i1 the custom of the port of Charleston that a pilot should be employed in approaching or leaving the haibor. The proof was clear as to the existence, necessity and reasonableness of the custom. 2d. What was the effect on the policy *251of failing to employ a pilot ? I thought and so instructed the jury, that if a loss happened in consequence of a pilot not being employed that the underwriters would be discharged; but if the vessel passed uninjured through the dangers, to avoid which a pilot was usually employed, and the loss happened beyond the point at which a pilot’s services ceases to be necessary, that the assured would be entitled to recover. In 1804, in the case of Depeau v. Jones, it was held by the Constitutional Court, that inasmuch as a pilot was not employed in bringing in a vessel to the port of Charleston, and she struck upon the bar and a part of her cargo was injured, that the underwriters were discharged. So in Law v. Hollingsworth, a vessel ascending *the*Thames, discharged her pilot and soon after was injured, it was held that the assured could not recover. In that case Lord Kenyon put his judgment upon the fact, that no *“pilot was on hoard at the time the accident happened.”*I thought this case would depend upon an answer to the question in fact, whether the vessel struck in crossing the bar ? If she did not and went clear, and was subsequently capsized in the gale, the assured would be entitled to recover, otherwise not. I summed up (as fairly as I was able) the evidence, and submitted it to the jury. They found for the plaintiffs — and I think their verdict was correct and proper.”

The defendants now moved for a nonsuit, or new trial, (as the case may be,) on the following grounds: 1. That in all contracts between the insurer and the insured, there is on the part of the insured, an implied warranty of seaworthiness, and in the present ease the vessel in question was proved to have been unseaworthy for want of a pilot, and the underwriters, defendants, were discharged from their liability on the policy of insurance. 2. That the testimony in the case proved that the vessel struck going over the bar, and her loss was clearly attributable to this cause. 3. That the cause why the vessel in question and her cargo were lost, was the want of a pilot to conduct her over the bar. 4. That the verdict was against the law of the case in this, that the vessel and cargo should be presumed to have perished for want of a pilot, and there was no fact in evidence to rebut that presumption. 5. Because the risk was increased and the loss produced by the *252default of the assured, or their agents, in the sailing without a pilot, and therefore the underwriters are discharged. 6. Because the usage of the port, and the *lex loci,*imposed upon the assured the duty of taking a pilot, and they having neglected this duty, the underwriters are discharged. 7. Because the verdict was otherwise against law and evidence.

Cuma, per O’Nealj,, J.

The facts of this case have been passed upon by a jury, and they have found that the Minerva was uninjured in crossing the bar of the harbour of Charleston, and that she was subsequently capsized in the gale. That there were many facts justifying this conclusion, cannot be denied. It was my own opinion formed at the trial, but withheld as much as possible from the jury. Under such circumstances, it would, according to our settled rules, be in vain to talk about a new trial on the facts. The only question which remains is, whether the fact of sailing from a harbor, where it is customary to take a pilot, without one, discharged the underwriters *1*The cases cited in the report, show very fully that if the vessel had been lost, in consequence of any injury received in that part of a voyage in which a pilot was necessary, that then the insurers would have been discharged. But the finding of the jury negatives the assumption that the Minerva was lost in crossing the bar of the harbour of Charleston, and ascribes her loss to the perils of the sea, outside of the bar. On the trial, and in my report, I fell into the error so common in the elementary works, of making the employment of a pilot a part of the sea-worthiness of the vessel; nothing can enter into *that,*which is not for the whole voyage. The business of a pilot is merely temporary. He is a part of the crew of a vessel for only a few miles, or a few hours. He navigates her only occasionally; under such circumstances, it would be an abuse of terms to say, that a competent pilot was necessary to make a vessel sea-worthy. The true notion seems to me to be this: if a vessel without a pilot sustain injury in entering or leaving a harbor where it is customary to have a pilot; that then such injury does not come within the perils insured against. It is not a peril of the sea; it is a loss from the bad navigation of the *253vessel, and is to be set down to the fault of the master, and consequently the owners would be liable for it. The general rule is, if the owners would not be liable for the loss, that then the insurers are. Let us suppose a case, and it will perhaps furnish a just test for this. If the goods’ on board the Minerva had not been insured, and this action was against the owners, and the jury had found, specially, that the Minerva sailed without a pilot, from the harbor of Charleston, when it was customary and proper to employ one, but crossed the bar in safety, and was subsequently capsized in the ocean, in the gale of the 28th and 29th of October, to whom must the postea have been delivered? Unquestionably to the defendants ; for the loss would have been from the act of God. Does not this answer show at once the liability of the insurers ? They undertook and warranted against the very peril from which the loss arises, and yet they would be excused by matter which had no effect in producing it. This would be to submit the facts of the case, and with them its justice, to give effect to a legal definition made by elementary writers, from cases in which the loss arises from the non-employment of a pilot, in a case in which it happened from another cause. In the case of Law v. Hollingsworth, 7 T. R. 156, from which Phillips extracts the principle “ that in navigating a river, or approaching or leaving a harbor, where it is customary for vessels of the burthen and description of that insured to take a pilot, the vessel is not seaworthy unless she have such a pilot,” the injury was sustained in ascending the Thames, at a point where a pilot should have been on board; and in that .case Lord Kenyon put his judgment expressly on the ground that “ no pilot was on board at the time the accident happened.” That case shows that instead of the discharge of the underwriters being ascribed-to sea-worthiness, it is set down expressly to the want of a skilful navigation at the place where the accident occurred. The same remark may be made of the cases of Depeau v. Jones, 1 Brev. R. 437, and Stanwood v. Rich. I think, therefore, after great consideration, that in law and fact the verdict is right, and that the motion for new trial ought to be dismissed; and it is so ordered.

*254Note. — The reader is referred to the following additional authorities, as to what constitutes *sea-worthiness,*and as to the employment or non-employment of pilots, as establishing principles perhaps analogous to those laid down by the court in the preceding case; or, at all events, as illustrating the general doctrine involved in it.

Every ship must, at the commencement of the voyage insured, possess all the qualities of sea-worthiness, and be navigated by a competent master and *crew.*— M'Lanahan v. *The Universal Ins. Co.*1 Peters, 183.

Sea-worthiness in port, or while lying in the offing, may be one thing, and sea-worthiness for the whole voyage, quite *another.*— ibid.

What is a competent crew for the voyage — at what time such crew should be on board — what is the proper *pilot*ground — what is the course and usage of trade in relation to the master and crew being on board when the ship breaks ground for the voyage; are questions of fact, dependent upon nautical testimony, and exclusively within the province of the jury. *ibid.*

Though want of sea-worthiness, at the time the risk commenced, may not vacate the policy, provided the vessel is sea-worthy at the time the voyage commences; yet the vessel cannot go out of her course to supply such want. As, if at the time the risk commences, the vessel is not sufficiently manned, she may afterwards, and before the voyage commences, supply that want; yet she cannot excuse a deviation for the purpose of procuring hands.— *Cruder*v. *The Philad. Ins. Co.,*2 Wash. C. C. R. 339.

A cargo was insured at and from North-Carolina to New-York; Held, that if the vessel was sea-worthy when she passed the boundary line of North-Carolina, this was sufficient; and her unseaworthiness previous to that point of time would be no defence in an action against the underwriters for a *loss.*— Treadwell v. *Union Ins. Co.,*6 Cowen, 270.

Sea-worthiness is an implied warranty in a policy of insurance ; it relates, however, only to the commencement of the risk. If it be then broken, the insurer is discharged from liability; but a breach of this warranty after the commencement of the risk does not discharge the insurer from loss subsequently happening, unless such loss be the consequence of *unseaworthiness.*— Am. *Ins. Co.*v. *Ogden,*15 Wend., 532.

A ship may be sea-worthy in harbor in a state which would not be sufficient for a voyage ; therefore on a policy at and from the port at which the ship was undergoing repairs at the time of insurance, Held, that although not sea-worthy for a voyage, she was sufficiently so in harbor, and that there *255was no breach of the implied *warranty.*— Forbes v. *Wilson,*and *Hibbert*v. *Martin,*1 Park. Ins., 344.; 1 Camp., 538.

*254*Hunt*and *Memminger,*for the motion.

*Petigru,*contra.

Evans, Earle, and Butler, Justices, concurred.

*255The question whether a ship on a voyage from Madras to London is not sea-worthy if she have no person on board her besides the captain, who is capable of navigating her, is a *question of fact*for the jury, and not a question of law to be- determined by the *judge.*— Clifford v. *Hunter,*M. & M., 103; 3 C. & P. 16.

As a full complement of men is not necessary in harbor, a ship does not cease to be sea-worthy for want of a crew till she sails on the voyage without a *crew.*— Annen v. *Woodman,*3 Taunt. 299.

The vessel arrived off Sierra Leone about 3 o’clock in the afternoon; the captain hoisted signals for a *pilot,*and none having come off by 10, he attempted to enter the harbor without one, and the vessel was lost. Held, that the captain being a person of competent skill, the underwriters were liable for the loss sustained; such an exercise of discretion comes within the principles applied to other losses incurred by the error of the master or captain. — 2 B. & A. 73; 5 B. & A. 171. *Phillips*v. *Headlam,*2 B. & A. 380; Am. Jurist, vol. ix. 106.

Q,uere, whether the loss in the principal case may not be considered, after all, as having arisen from *the fault of the master,*in putting'out to sea in such threatening and tempestuous weather as the evidence represents it to have been at the time *1*(See the testimony.) In Mars, on Ins., vol. 1, 215, it is said “ that upon principles of natural justice the insurer can in no case make himself answerable for any loss or damage proceeding directly from the fault of the insured.” In Abbott on Shipping, p. 265, in treating of the duties of the masters and owners of ships, it is said of the master, *11 He must on no account sail out during tempestuous weather*citing Molloy and Roccus to the same effect. R.