New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-04-11

,,;jcx sss5 o1jicerr n re 0SeaDer Texnrkana,
sns7 thereforo the defendants conclude that
they are relieved from all liability ON the
policy issued.
Il appears from tho testimeny that while
ON her way to Shreveport, the Texarkana
collided with steamer called the Era No.
9. The collision occurred ct bend or point,
ca.egory Of rule No. Of the rules and rcgu-
lations for the government q pilots and the
navigation of steamboats,; and it is alleged
that both boats. in utter disregard of this
rule No. 6, neglected to blow or sound their
steam whistles 1t distance Of six hundred
yards from tho bend or point, go az to give
timely warning to each other:
Rule No. 6, thu violation of which by the
pilot of the Texarkana, it is alleged, was
the cause of the collision, resulting in the
total loss OF that boat, is in the following
words:
when any steamer, whether ascending
or descending, il nearing short bend or
point where, from sny cause, steamer ap-
preaching in an opposite direction can not
be seen Ct distance of six hundred yards,
the pilot Of such steamer, when he shall
have arrived within six hundred yards of
that bend or point, shall give signal by
one long sound of his steam whistle as
notice to any steamer that may be approach
ing; and should there be any approaching
steamer within hearing of such signal. it
shall be the duty of the pilot thereof to
answer such signal by one long sound Of
his steam whistle, when both boats shall he
navigated with the proper precautions, as
required by preceding rules"
This rule, like most laws enacted by those
who do not combine o proper appreciation
of theory and practice, has the merit, If no
other, Of being quite uncertain and am
4 rs k1,,o a
striking illustration of the utter ineficiency
of such q rule. While it determines and
prescribes a course of action under certain
circumstances, it leaves entirely to its sub.
iects the most vital part OF certain liked
rule of conduct: it gives them the power to
determine for themselvcs in what cases the
rule shall be applicable. 1t requires that
the steam whistle shall he sounded when q
boat is nearing point or bend, and she can
not be seen by another coming in the oppo..
site direction at O distance OF six hundred
yards; but what points and what bends in
the river come within this description is not
determined and fixed, and therefore Is left
entirely to the discretion and judgment OF
the navigating pilots.
In the instance at bar, subsequent events
indicated the point or bend at which the
collision occurred to be one within the rule
requiring the sounding Of the steam whistle,
and it is in evidence that since the accident
boats have sounded their whistles when
nearing this point; but it is also in evidence
that previous to tho accident the oldest and
best pilots ON Red river did not consider
the point or bend in question as one coming
within the rules requiring the blowing Of .
whistle.
The rules governing navigation are pro
verbally uncertain. Oftentimes that which
appears cOnsummate prudence turns out,
with the help of the light of succeeding
events, rash boldness; and no better proof
of this can be furnished than that afforded
by the record in this case.
( l do not believe that the defendants have
proven that the accident resulting in the
loss of the Texarkana, was caused by the
negligence Of the pilot of that steamer. II
Cured, both boats were equally at fault;
and, in such case, it can not. with legal
propriety, be said that the collision was the
result Of the Encouragement of either.
The evidence does not show which of the
two boats, under the circumstances, was
bound to give, or was in the position re-
quired to give the first blow Of the steam
whistle; and, in the absence of this proof,
it is impossible to decide which Of the
boats was in default s.al.5s y
But conceding the fact that the Tex
arkana, through the mismanagement OF her
pilot, was solely responsible for the col
iision. would this alter the case! Would
the underwater be relieved from liability
on the policysOf insurancef 1t is evident
from the terms of the policy that collision
is one of the perils insured against. The
policy does not discriminate between a col
lisiOn, which is the result Of the acts of the
insured and that which il caused by acts
beyond his control Collieion, therefore, is
one of the peri!s which the parties had in
view at the time Of entering into the con-
tract; and as they ,6ave made NO distinction
in their contract a. to the origin or
causes of the collision as peril insured
against, 1 am at loss to discover on what
grounds the court can make distinction
for them. Of course, if the misconduct
or. omission of duty was such as to
amount to barratry, the underwater would
not be liable. But in this case no fraud is
even alleged, much less proven. If,
then, the accident was due to the negligence
of the pilot of the Texarkana, that negli.
gence was simply the result Of an error Of
Judgment, and not . barratrsus act. Will
such negligence ON the part OF the agents OF
the insured, absOlvo the underwater from
responsibility
In this connection it is not improper to
notice the fact that the pilot is in no truth
full sense the agent of the owner. He is an
agent rather of the government. The
owner, though he have the right of selec
ton, enjoys that faculty sub naodO. He il
permitted to engage the services OF any
pilot provided he select from list rendered
to him. And it must be borne in mind that
even those pilots are not, in positive sense
free agents. Under the twenty ninth sec
ton Of an act of Congress entitled IAN act
to amend an act entitled AN act to provide
for the better security Of the lives OF
passengers ON board Of vessels propelled
| in whole or in part by steam and fol
other purposes" approved August 30, 1852,
| the Board of Supervising Inspectors have
| adopted certain rules in relation to naviga
ton, which, though doubtless calculated
property, restrict and limit the free agency
Of the pilots themselves. They are not LEFT
to determine for themselves what conduc
on their part is, under given circumstances
necessary and proper, but are tied down by
certain fixed rules, which they can violate
only at the risk of having their licenses re
vOked. The case then Is, that the pilot il
not, properly speaking, the agent Of thu
owner Of the boat, because the owner hal
not unlimited choice in the selection he may
desire to make; and secondly, even at that
will, his Judgment and discretion, but hai
| to obey laws enacted for him in relation t.
the navigation Of the steamer by which b.
is employed. .s
But even if the insured had an unlimited
| field wherein to make his selection-and tn
pilot chosen by him was really his agent
the negligence of that pilot causing col
lision and total loss Of the object insured
would not discharge the underwriters. Il
the case Of Henderson and others vs. tn
Western Marine and Fire Insurance Com
pany, reported in Tenth Rob. Rep, pag