The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-03-14

~
party. The Colonist (lrish Catholic organ has
como TO the conclusion that ishmen are To- indis-
Greet to be successful in politics. and thst on the
whole It would 30 Is well for them to leave public
matters to those who are more phl-g natic Ia tenn.
permanent. Good will come Of all this.
Superior Court-aensrnl Term.
Before the full Bench.
MARINE RANCE-sEAwoRrHIsEss OF THE YES
sEL-wARRANTY.
Sinieon Draper Us. the Commercial Iaiurance
Company This Was one Of foar suits all iuva vi az
the same question and arising out Of the sme fac s
simeon Draper eectsd an insurance on ne $40 amer
Albatrcss in five different insurance com lanies.
BY the Court, SLossoN, Justice.-rhat the loss Of
the vessel is to be attributed primarily - this ne eli.
gence ard carslessnes, of the crew. or Of suca por.
ton thereof rs were ut the time especially entrusted
with its safety, we think IN the evidence there can
be no reasonable doubt-but as tie pfoxm3te or
against the defendants would be liable If not cis.
charged on other grounds. &C ltes va Madison Co.
Mer. lns. Co., l Seld., 478; Mathews vs.. ii w ,rd
lns. Co.. Kernaut) The true question, and me only
one which we deem 1t necessary TO consider at
length, il, whether the vessel was uaseaworthy at
the commencement Of the voyage, by reason Of the
conceded inconsistency Of the master, Capt ain
Greene) as navigator, there being, nevertheless,
another person on board (Captaa McNeu) 10 WON
was especially entrusted by the owoer the duty Of
navigating the ship. and who is admitted 70 have
possessed competent skill for that purpose. TIE
question is entirely novel one, and its solution
principles upon which the doctrine OF sea xortai-
ness rests. The implied warranty Of sea ort hines,
has its foundation In sound pra ,iple, and
involves the element Of good faith as bat veen tn,
tract as respects the insured is indemnity ag Ana.
extraordinary perils. As respects the insurer It is
the chance Of gaining the premium; aud to enable
him 70 do this, the ship mus. be in condition,
when the policy attaches, to resist o-doa.y .ils
ard to accomplish the voyage under ordinary ks;
and 50 essential is this that the law pes not re-
quire any express covenant on the subject ba. al.
solutey avoids the contract II 10 fact .ns state of
seaworthiness does not exist. The law implies,
f.om the very nature Of the contract, an under.
taking on the part Of the insured that the vessel
shall be capable OF performing the voyage, and the
violation or breach of this undertaking. tsc mic Ally
termed warranty, and which is. in effect, conii.
ton precedent, defeats and puts end to ths con
tract whether the loss be attributable to tie unsea
worthy condition Of the vessel or not. The whole
consideration fails as respects the insurer, and Ia
the intendment Of the law the contract never exist
ed, the risk had never an inception. q Marsh. lbs.
CHI. 8, SEQ. 8; 7. r. 1922 To constitute tais sea
worthy condition, the vessel must BE- tight staunon
and stroDg-she must be equi 3ped Win everything
essential to her navigation during the voyage AM
she must have sufficient crew. both as to nu nbsrs
and efficiency; and last, though by no means lie sst
she must have master or comm andng officer OF
competent skill prudence and experience At least to
conduct the navigation Of the vessel If not to BET
the respor sibiit!es OF those sudden and decisive
emergencies in which by his own act he often de.
Terminus the rights and liabilities Of the parties to
the contra I, Marshall, above cited Park lbs. cb.
IL; L. r. l60; Kent, 7th ed, 1851; 5 Mass.
Rep, IL; ! Anould's ms, 6s4l In every
definition Of seaworthiness to be found In the
books, master of competent skill is invariably
included. 1t is commended in the present case,
and foI the first time, It is believed that II the ak
be present, II Is by no means essential to the war.
ranty that 1t reside In the master, and that il
equally answers the requirements of tho coalition
II It be found IN smother officer or person entrusted
wit nd viz ti,r III To I,tx.
not dispense with the necessity OF 0 commanding
officer known as master captain but that the du.
ties of the latter ex end to variety Of objects other
than that OF mere navigation, and that vessel
may be as well nayiBated by another person Of equal
skill as by the master him self; and that as the war
ranty requires only that the vessel shall be In con-
diton 70 acc Jmplsh tho voyage under ordinary ps-
rils, II is sub tantiay complied with when the re.
quisite qualifications 70 successful navigation are
present, no sever dis ributed as to persons. That
for example weasel Is sS seawortny within tae
meaning OF the warranty, with 0 master uuskilled
In navigation, bat with competent sailing ma,ter
Or other person to conduct the navigation on board
as though tie astsr were himself possessed OF all the
necessary qualifications OF sklful navigator as Ia the
case at the bar. 1t may well be doubted whether it
La not sufficient eIsver TO this to gay that COZ
trary understanding Of tho nature and definition OF
having for loag time " not always
prevailed, the parties may be said 70 have en-.
tracttd in reference to the latter aud that the de-
PENDANTS are now precludei from setting up cifar
emit Interpretation Of their engagement. Bat apart
from this, there are consider att ns which, In our
Judgment, render this novel theory uutenabie
1t Is as essential to success Ia the navigation OF
vessel that the person, whoever he may be, who is
entrusted with 1t, should be clothed with the requ
site authority to enforcs his commands, as that ne
should possess the necessary skill In the science
itself. The nature OF the employment requires per
tect subordinstion on the part OF the seameo AMI
inferior off9(. The exigencies OF the nsvigs alton
itself frequl require not only consummate skill
and presence Of mind on the part Of TIE person
Quoting II bot the exercise OF an absolute authority
which calls for, and can enforce, imme date and
uuquestionns obedience. Tao service ia which he
Che mastery Is employed Is one Of uncommon peril,
lot only requiring great skill but often demanding
great promptitude Of decision and action, and ad.
hitting no time OF delay for elaboration, reasoning
or expostulatioD. Upon him Ia imposed the obliga
ton To meet and provide for those emergencies and
II there is not an ins antaneOus obedience to his
who are in (Fanders So, s54.) Heucs, It is 70.
quiste that beth essentials-the skill and the an
thorty- should be united in the same pc SON. other
wise, In the emergency which calls for their exer.
cise, the catastrophe to be avoided might become
inevitable. Indeed, so palpable is this truth that
the able counsel who advo eatei the doctrine In
question were forced TO admit that with the nau.i.
cal skill must be combined the power Of discipline;
but they e0I IT. shs, this power did sc
q deputed authority from Greene, or by
authority derived from the owner Of the vessel,
and that disobedience to M. Neil contrary
W thc oIucIs VI b.ecnc, Wouu Dc ulsODe1lence 70
the master himself, and, Of course, punisaabe as
such. There is no evidence that Mcneil acted by
any deputed authority from Greene even II the las.
ter could depute such an authority. HIS whole
power was derived from the commission which he
held from Draper, the owner OF the vessel. Bat
apart from this the theory Of the plaintiffs counsel
requires that Greene should acquiesce In, and en-.
force, the orders which Mcneil was to give; and It
virtually comedies that In the absence OF such
acquiescence or Of unaniniiiy between them, the
tkil might become imperative from the waat Of the
ecessary authority TO enforcs its orders. Until,
under a necessity of ENFORCING The orders xbIeb
Mcneil, as navigator, might give to the seamsn
and subordinate officers the whols theory lacks the
only element which can give |. pllusbiity. such
then being tie necessity Of authority combined
Nth ski IN the p, fson entrusted with the navigs.
ton Of the vessel, the warranty. when Is calls for
the skill calls also foi the authority, and whoever