Navigating the Lower Saint Lawrence in the 19th Century.
| John Lambly David Gilmour Thomas Mason Peter LeSueur |
William Paterson Duncan McFarlane William Ware John Vanderbyden |
Phillip Holland Tichborne Grueber Bartholemi Lachance James Hamilton. |
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| Robert Gillespie & al. vs. J.B. Forsyth & al. | ||
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Mr. Black in opening, said that the case in which he had then the
honour of addressing the Jury, was the first which had yet been
brought in the Courts of this country, founded on a policy of
marine insurance. The increased trade, and the spirit of
commercial enterprise of this Province, gave occasion to the
establishment of a company in the year 1837, for insuring against
accidents by the perils and dangers of the seas and navigation, and
it was with this company that the insurance, out of which the
present litigation has arisen, was effected. Perhaps it ought not to excite surprise, that in an undertaking as novel, and of a character so much more large and attended than the usual commercial operations of this country, the agents of the company might not have been able at once to raise their views to the level of a subject which ought to be regulated in the spirit of a liberal policy. It would seem in the progress of the case that instead of considering the claim of the plaintiffs with reference to the sound and substantial principles of justice and of right, they had applied to it the subtlety which is imputed to men of his (Mr. Black's) profession, rather than the plain good faith which is, on all hands, admitted as the characteristic of British merchants. Of the truth of these observations the Jury would have an opportunity of judging when they were put in possession of the facts of the case, which he (Mr. Black) then proceeded to do. The plaintiffs who were known to many of the Jury personally, and to all of them by reputation, as forming one of the most extensive commercial establishments in these Provinces, are largely engaged in the West India trade; and having a shipment of West India produce from a house at Montego Bay in the Island of Jamaica to their house at Quebec, effected an insurance with the Canada Marine Insurance Company of Quebec for the sum of £2,000 currency, on this produce. The policy, which was admitted by the defendants, bore date the 3rd September, 1837; the voyage stated in this policy was from Jamaica to Quebec; and the insurance was on the goods laden or to be laden on board of the barge Industry, a schooner of the burthen of 156 tons, of which it was expressly said in the policy that one Dixon was the master. Here it might be proper to state that this schooner, owned at Montreal by Messrs. Molson & Co., had sailed from the port of Quebec, on the 11th of June of the same year, on a voyage to Jamaica and back. On the voyage from Quebec to Jamaica, Edwin Cook went as master; and he, having been discharged by the supercargo, Captain Dixon, who had gone out as Mate, succeeded to the command of the vessel. A change of master during a voyage would not, under any circumstance, affect the policy; but it was not necessary to say any more on this part of the case, as no change, in point of fact, was made in the master subsequent to the policy, upon which this action was brought, being entered into; and it was more adverted to from the company's having in the first instance made this ground of objection, than from any particular importance that attached to it. The vessel sailed from Montego Bay on the 30th August, Dixon having, as had already been said, succeeded Cook as master. The crew consisted of ten men, besides the master and supercargo; a sufficient large number, it must be admitted, for a vessel of this description, and being one more than the full compliment with which she had left Quebec. The person who acted as Mate of the vessel would be proved to have been a good seaman, and it was not denied that he was fully capable of discharging all the duties of Mate in working the ship and that belonged to seamanship. The observations of the heavenly bodies and the calculations to establish the place of the ship, were performed by the master, and the whole kept by him on a slate, as is usual on board of ship, the contents of which were transferred each night into the log-book. The vessel had a prosperous voyage from the time of her departure from Montego Bay down to the night of the 11th and 12th September, when she encountered a violent storm in the Gulf of Florida, indeed a hurricane which no skill could resist, and at about a quarter before four in the morning, she struck and was totally lost. |
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A light-house, which ought to
have been visible and might have saved the vessel from this
accident, had been destroyed about a week or ten days before, and
being therefore not visible, the master was misled as the precise
place where the ship was. The materials and part of the cargo were taken out of the vessel, and disposed of under the direction of Mr. Ryan, the supercargo. Intelligence of the loss of the ship reached Quebec about the 21st of October, and abandonment of the cargo was notified to the defendants, and application made to them for the amount of the insurance. The answers of the company were not as explicit as might have been expected, and seemed to have been written with a desire to communicate as little information as possible to the plaintiffs, and to leave to the defendants as much latitude in the defence as possible. After various difficulties such as that Mr. Ryan had taken the command of the vessel; and afterwards when this ground was found to be untenable, that Captain Dixon was so much addicted to liquor as to disqualify him altogether for the command of the ship; and when it was shown that not a glass of spirits was drunk on board the ship, and that she was what is called a temperance ship, the company at last set up the defence that the Mate was not acquainted with the science of navigation; and it was to this point that the whole defence was at last narrowed. Now, it was not pretended that the master did not understand navigation in all its branches, fully as well as masters of merchant ships generally understand navigation, and the mate would be proved to be an excellent seaman. The general rule on this head was that the vessel must be competently equipped and manned for the voyage, with a sufficient crew, and sufficient means to sustain them, and with a master of general good character and nautical skill. In long voyages such as to and from the East Indies, it might be desirable that there should be more than one person on board the vessel capable of taking an observation, but there was no reason rendering indispensable, there being more than one person of this description on board of vessels on shorter voyages, and certainly not on a voyage from Jamaica to any of the ports in America. The evidence of several experienced and respectable masters of ships, who had sailed to and from the West Indies, would be produced, showing that nothing was more common than for vessels in this trade to put to sea with mates acquainted with seamanship and the management of the ship and cargo, which constituted their principal duty, but who were not versed in the more scientific parts of navigation, and that the qualification which the Canada Marine Insurance Company would require in the mate of the Industry had not been demanded in other instances. The spirit of justice and good faith which generally obtained amongst insurers, would exclude captious objections like this. But if in point of law, it were necessary that there should be another person besides the master capable of navigating the ship to render her seaworthy, it was obvious that, from the multitude of instances in which this occurrence takes place, the objection must have arisen again and again, and would be found in the form of an elementary rule laid down in plain and distinct terms. The only case, however, in which any question bearing an analogy to the present had been raised, was the case of a voyage from Madras and the Mauritius to England; but the slightest geographical knowledge would show the difference between the two cases. The voyage from the Mauritius was one of the longest voyages, being from four to five months, the greater part of it in the open sea, at a great distance from land, requiring the Cape of Good Hope to be doubled, and the vessels themselves being of the largest size; whilst the voyage from Jamaica to Quebec, whether the ship is looked at, or the risk, or the length of the voyage, or the manner of prosecuting it, was altogether different, the latter voyage occupying rarely as many weeks as the former did months; and accordingly the learned Chief Justice of England who tried that case, stated the question to be whether a ship was capable of an India voyage, with no one on board capable of taking the command except the master; it was not put as a general rule, but as a rule applicable to a voyage to the East Indies. With respect to voyages like the present one from one portion of North America to another portion of North America, that is from one of the West India islands to the River St. Lawrence, if such a rule had obtained, there must have been a multitude of cases in which it would have been applicable, and where we should have found it applied. It would have been known to all classes of persons engaged in this trade and acted upon precisely in the same way as so many of the other rules relating to insurance are know and acted upon. Traces of it would be found everywhere and would not to be sought for in remote and distant analogies. The subject of seaworthiness had undergone a most searching examination, and the silence of books treating ex professo this subject afforded the strongest evidence against the pretensions of the company. It would be strange indeed if it were left to this new company, and in this country, to disclose a role which had escaped the sagacity of all other commercial communities. The insurance effected in London on a portion of the cargo of the Industry was paid by the underwriters there, and the regularity of that payment confirmed with a full knowledge of all the circumstances of the case. |
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When the Canada Marine Insurance Company had been longer in operation,
it would probably see reason to act in a different spirit from that
which had dictated the present objection, and the plaintiffs looked
forward with confidence to the verdict to be rendered in this case
as likely to be conducive to so desirable a result. Public
companies, in many respects, highly advantageous to public
interests, required to be closely looked after, so that they might
not abuse the power which their numbers, combination of means, and
the absence of individual moral responsibility conferred upon them,
to the oppression of private individuals. Mr. Aylwin followed on the same side, and, in a speech of much force and ability also explained the case to the Jury. The following evidence was then adduced on the part of the plaintiffs: William Bristow, Esquire, sworn: I conduct the business of Messrs. Gillespie, Jamieson & Co., of Quebec, and have done so for some years. On the 21st of September, 1837, I effected an insurance, with Mr. Stevenson, secretary of the Canada Marine Insurance Company, to the extent of £2,000, on goods contained in the Industry, at and from Montego Bay to Quebec. On the 23rd September, I heard that Captain Cook, who left Quebec in command of the Industry, had been removed, and that the mate of the vessel, John Dixon, a competent navigator, had been appointed in his stead; which facts I communicated to Mr. Stevenson, and had Dixon's name inserted in the policy previous to its being delivered to me. (Mr. Bristow's evidence ceased here for the present, until further witnesses were examined on the part of the plaintiffs. We may here observe that part of the following evidence was taken at periods before the trial, the witnesses being about to leave the Province. Their depositions were, consequently read to the Jury.) John Dixon, of Liverpool: On the 11th June 1837, the schooner Industry, sailed from Quebec for Montego Bay, Jamaica, under the command of Captain Edwin Cook; I was first mate of the vessel, and John Ryan, supercargo. We arrived at Montego Bay on the 6th August following. During the voyage, Cook and Ryan fell out, but I do not know what was the difference between them. The day after our arrival at Jamaica, Cook was discharged by Ryan. I wished to leave the vessel also, fearing that Cook might think I was accessary to his discharge, but he urged me to remain, saying that I might as well have the situation of master as another, and I did remain. Upon Cook's leaving the vessel, Ryan's name was put on the register as Master, and remained there until the 29th August, when I was appointed Master, and my name substituted for that of Ryan. On the same day the schooner was cleared out by me as Master, and on the following day we sailed. I continued to be Master of the schooner down to the time of her loss in the Gulf of Florida, in September. At Montego Bay I attended to the taking in of the cargo which was well stowed, and the schooner was in very good trim; she was not too deep in the water, and was well found in every respect, having good sails, rigging, masts, and every thing requisite with a competent crew of eleven men besides myself, but including Mr. Ryan. I provided the requisite charts at Montego Bay, namely, of the Gulfs of Florida and St. Lawrence, and a general chart, which I now produce; they are generally considered to be of the best description to be had. On the first of these charts, which is a new general chart of the West Indies from the Virgin Islands to the Gulf of Florida and Mexico by Norrig, will be seen the course of the schooner from the time of her leaving Montego Bay to the period of her loss; I have no objection to leaving these charts to be filed in this case. From the 9th August to the time of the loss, there was not a drop of spirits used on board the vessel, in consideration of which Mr. Ryan promised the men one dollar extra per month, and something additional was given to the labourers at Montego, that no liquor might be brought on board. It was ¼ before 4 A.M., 12th September, 1837, that the schooner struck, the wind at the time blowing a perfect hurricane from northeast to north northeast, and so dark that a person could not see his fingers before him. From one in the morning I had been looking out for the light-house, which ought to have been on Cape Florida, as marked in the chart, but not seeing it, I thought we were in mid channel and had passed it. After the loss of the schooner, upon going on shore I found that we were about thirty miles east of the place where the light-house had been, and that it was burned down a week or ten day previous by the savages as reported. The course of the schooner as laid down in the chart, was laid down by me from day to day in the progress of the voyage. On daylight coming we found ourselves about ten yards from the shore, and one of the seamen swam to it. By eight in the morning the tide ebbed and we walked ashore on dry ground. The vessel was a total wreck, the water in the hold came nearly chock up to the decks, and she sanded, i.e., sunk in the sand; several other vessels were lost about the same time in the Gulf of Florida. The cargo of the Industry was taken to Key West, and there sold for the benefit of the underwriters. |
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If there had
been a light on Cape Florida, I would not have been on the same tack, and, although the night was dismal, I might have weathered
the storm. The Cape Florida light-house, as we seamen call it, is
designated on the chart as Biscayno light. Nearly opposite to it
there is another light called Cat Keys, but this is not visible
from Rocky Point, where we struck. The coast upon which we were
lost is a particularly dangerous one, the current being very
changeable. I have been at sea for 17 years, and before sailing in the Industry, I had been master of the brig Grace, of Workington, in two voyages from Liverpool to this port, one to Newfoundland, and one to Smyrna; and was also master of the brig Malantho. On the voyage from Quebec to Jamaica, I made the entries on the log-book, and from Jamaica to the time of the loss, the entries in the log-book were copied therein by Mr. Ryan, from observations and reckonings daily made by me and placed on the slate. I now produce the log-book, and can take upon myself to say that its contents are true. I had previously to this voyage taken the brig Malantho through the Gulf of Florida, and was well acquainted with the navigation of these parts. I remained in command of the Industry until I got as great a part of the cargo to Key West as I possibly could, and gave up the command on the 28th September. On the 21st I delivered the register to the British Vice Consul at Key West and obtained a receipt for it. Cross-examined. When we left Quebec, the crew of the schooner was composed of the master, mate and seven men including Mr. Ryan, who I understood, from himself, as supercargo, and he acted as such. He assisted me in getting in the cargo at Jamaica, while his name was on the register as Captain. I am not aware that he acted as supercargo on any occasion before that. He did not act as owner of the vessel, nor had he anything to do with the management of the outward or homeward voyage; he discharged two of the crew in Montego Bay by my orders. Every seaman shipped at Montego Bay I shipped myself, and I refused some that Mr. Ryan brought on board. I also discharged the second mate for taking the boat and going on shore without leave. The seamen whom I discharged were able seamen, but not navigators, and those whom I took in their stead were similar. On the return voyage the crew consisted of myself as Master, and ten men, including Mr. Ryan; there was no navigator but myself. The person who kept watch when I was below was a Frenchman, whose name I cannot pronounce, (I usually called him Pilot) who served his time as a pilot in the river St. Lawrence. I understood him to have been a pilot, and that he had been broken; he was a good seaman and seemed to understand the navigation of the St. Lawrence. Before leaving Montego Bay, I signed the bill of lading; I do not think Ryan signed any. On the outward voyage the schooner was rather by the stern if anything, but in capital trim for working. Her average rate of sailing was from four to five knots, but I have known her to go seven. On the homeward voyage she was, if anything, lighter; her cargo outward was a general one, homeward, rum, sugar, molasses and pimento. After Mr. Ryan had copied the log-book from the slate, I never compared it. It is usually to stand to the windward to see the light on Cat Key in coming through the Gulf of Florida, but the wind being changeable and believing myself in mid channel, I thought it prudent to keep there. I was on deck in both watches that night, and it was my watch when the vessel struck, at which time the sea was running so high that no boat could have lived. The property was given up to Mr. Ryan by me, and I had no communication with the owners of the schooner, the cargo and the vessel being sold under the direction of Mr. Ryan, with whom the log-book and all the other papers of the vessel were left, except the register, which was left with the British Vice Consul at Key West. I know that the cargo shipped at Montego Bay was neither shipped by Mr. Ryan nor consigned by him, but I do not know whether he had anything at all to do with it. On the night of the wreck, I cast the lead every half-hour, but could not find soundings. It is usual when the vessel is hove-to, to take soundings and mention it in the log-book, but no mention is made of it in the log-book filed in this case. I consider that if the Florida light had been there, it would have been visible at times during that night at a distance from six to seven miles. I had been through the Gulf of Florida as Master once before, and three times at least as mate. It is the mate's duty to keep the log-book, but on this voyage he could not write, and therefore was incapacitated to do so. I never went on a foreign voyage before without a mate capable of keeping the log-book, nor in a vessel with only one person capable of navigating her. When Mr. Ryan dismissed Captain Cook, there was no navigator left on board but myself. |
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| Re-examined. The lead during the night of the wreck was thrown
by a seaman, I having enough to do to look to the ship, and look
out for the light. The usage is for the lead to be thrown by a
seaman, under the super-
intendence of the Master, mate or pilot. On
the night in question it was thrown without the vessel being hove-to,
by one of the seamen in the usual way, under my superintendence. It was Mr. Ryan who communicated with the
consignees of the schooner at Montego Bay and the shippers there.
From the time that Mr. Cook left the vessel, I discharged the
duties of master. The day after we struck, a fishing smack came in sight, and Mr. Ryan went on board of her, and she proceeded in search of wreckers, which were obtained, and we all proceeded to Key West in them with such of the property as we could save. The man whom I made mate was a good seaman and capable of discharging all the duties of a mate that belong to seamanship. I made every exertion that could be made to obtain a mate at Montego Bay, that was a navigator, working by day for the purpose, and both him and myself by night, without success; the consignees of the vessel informed me they could not get one. I came from Liverpool at the instance of the plaintiffs in this, and the plaintiffs in another suit against the same defendants. Thomas Kelly. The evidence of this witness, after stating his engagement at Montego Bay by Dixon, as one of the seamen on board of the Industry, on 23rd August 1837, corroborates the evidence of Dixon with respect to the good condition of the vessel, that no spirituous liquors were used on board, the particulars of the wreck, with the addition that for three days previous, the weather had been so foggy that the Captain could not take an observation; the good seamanship of the mate, &c. Captain Dixon was a good navigator and sailor, and as good a man to take charge of a ship as I have known. He was very attentive to his duty, and I do not think he had more than two hours off of the twenty-four from the time we left Jamaica until the wreck. I had sailed with him before this and he was always remarkably sober. The witness then gave two instances of vessels sailing on foreign voyages without second navigators. Cross examined. The witness gives a very full account of the proceedings on board the vessel previous to and after her striking, which mainly corroborate Dixon's evidence in this respect, and various other particulars not of much importance to the case. Re examined. It is to my knowledge that Mr. Dewar, the merchant, Mr. Ryan, and Captain Dixon tried all over the island to get a mate who understood navigation, but without success. Cross examined. I went ashore along with the Captain and Mr. Ryan to look for a mate and could find none in Montego Bay, and Mr. Dewar said he would write through the island for one; this was two days after I shipped on board the Industry, and is all I know about it. John Smith, mariner. This witness states that he shipped on board the Industry two or three days before she sailed from Montego, and corroborates the evidence respecting the well-found condition of the vessel, &c. About three days after the sailing of the vessel, he fell sick and remained below in the forecastle until she was wrecked. The mate was a good passable seaman and carried on his work as well as any mate the witness had ever sailed with. The remaining part of the evidence, including the cross examination is not material. John Neil. I am master of the ship Robertson, of Greenock. I have been at sea since 1800, and master since 1812: since 1814 I have commanded a regular trader to this port and have been once to the West Indies. On my voyage to Quebec in the fall of 1838, Captain John Dixon came as passenger with me, and he was always steady and sober, though he had it in his power to be otherwise. I should not have hesitated to place him as master on board a ship of my own. On my voyage to the West Indies, I had a mate who understood seamanship but was no navigator, and I have known of many such instances. I do not consider it essential that the mate of a merchant vessel should be a navigator. It is almost impossible to obtain even sailors in the West Indies in consequence of the strictness of the Police as to runaways, and it would be still more difficult to supply the place of a first mate there. I think that Captain Dixon's log books now shown to me has been kept in a superior manner. It is not essential that the log book should be written by the mate. I have had passengers who have written the log book during the whole voyage, and in my homeward voyage of the spring of 1838 my log book was altogether written by myself. Cross examined. I have never made a voyage from Quebec to Jamaica, nor have I passed through the Gulf of Florida. I consider the voyage from Great Britain to Quebec equally dangerous with the voyage from Jamaica to Quebec passing through the Gulf of Florida. My West India voyage was the only occasion on which I had a mate that could neither read nor write. I know of two instance in which the mates of vessels were not seamen, the Hope, from Miramichi is one, and another vessel. There are others, but I cannot remember them at present. Anybody that can write can copy the log book from the slate. William Wheatley. I am master of the bark Eleutheria, one of the regular traders to this port. I have followed the sea for the last 22 years and been master since 1824. It is a very common occurrence for mates in merchant ship to be ignorant of navigation. My father is a large ship owner and underwriter in North Shields, and I have known him to make an apprentice his own first mate on board one of his own ships, and who could not write sufficiently to keep the log nor could he take an observation of any kind. I have myself had two or three first mates who would not have been able to navigate the ship if any accident had happened to me. |
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Cross examined. I have been principally engaged between England
and Canada, and Russia; during my apprenticeship I was engaged in
the coasting trade. The vessel to which my father appointed his
apprentice first mate was bound to Quebec, and he (the mate) made
several voyages in that capacity. I cannot say that there was no
other person on board understanding navigation but the captain. I
never went on a voyage with a mate who could neither read nor
write. I have never been in the Quebec and West India trade, but
I do not consider the voyage from this port to Jamaica as more
intricate than it is to London. If I were engaging a mate for a
voyage from this port to the West Indies, I should choose a good
sailor, and I would not put a question as to whether he could read
or write. I would rather have a good coaster than a skilful
navigator, and in speaking of coasting, I mean to include the Gulf
of Florida as well as the Gulf and River St. Lawrence. I cannot
speak as to the custom of the West India trade of having two
navigators on board a ship. I have never had occasion to allow my
log book to be written by a passenger. I think that Captain
Dixon's log under date of September 12, 1837, was kept in a very
seamanlike manner. It is customary to have a column in the log
book for leeway, but a log book, I think, could be properly kept
without it. Peter Sumpton. I have been at sea for the last 23 years, and master 12 or 13. During this latter period I have been in the trade between Liverpool and Quebec five or six times. When an apprentice, I have been to the West Indies and to South America. I have known many instances of mates being no navigators, and have been obliged to go myself from this port of Great Britain without a second navigator on board. When I was an apprentice, the same thing happened in coming from Demerara. It is very difficult to find mates in the West Indies. I have known Captain John Dixon for several years past; the log book kept by him on board the Industry is kept in a seamanlike manner. Cross examined. I have never made a voyage from Quebec to Jamaica nor passed through the Gulf of Florida. I consider such a voyage more dangerous than from this to Liverpool and back, on account of the current in the Gulf of Florida, which are influenced by the winds. I would not commence the voyage from Quebec to Jamaica and back without a man that could read and write; but if I were at Jamaica and could not obtain one, I would proceed to sea without. I never had a mate on board who could neither read nor write. Forbes Michie. I have been about 13 years at sea and a ship-master since 1832. After mentioning the various vessels which he commanded and the difference trades in which he was employed, this witness, who commands the bark Queen Victoria, says: when I was engaged in the trade between England and Scotland, and the Baltic, the mates whom I employed did and sometimes did not understand navigation; seamanship being the principal thing to depend upon. I have often known vessels coming from Great Britain to this country with only one navigator. I have sailed between Quebec and the West Indies, which voyage, in my opinion, is not so dangerous as the voyage between Quebec & Great Britain. Throughout the West Indies, vessels generally arrive in December and January, and leave again from 25th July to 5th August; between the last mentioned period and the former there are very few vessels remaining, as they do not consider it safe to remain, so that should any vessel require additional hands, it is difficult to procure them during the above interval. In April, 1835, I lost a vessel on a voyage from Newcastle to Dublin, when I was the only navigator on board, the vessel was about half insured and I recovered the insurance without any difficulty. Cross examined. The voyage from Newcastle to Dublin is altogether a coasting voyage, and seamanship is more necessary for the mates to possess, than navigation. I did not inform the underwriters of the mate's ignorance of navigation, because they were aware that such is usually the case in coasting voyages. I do not know of a vessel going from Quebec to the West Indies and back with a mate who could neither read nor write. I do not know that the vessels in that trade are better officered than in other, I would not consider it hazardous to make this voyage with a mate who could neither read or write. I do not know from personal observation that many voyages have been made by vessel without second navigators, but I know it from common reports. Charles Jones, of Nova Scotia. I have carried on business in Nova Scotia for 30 years past and have owned vessels for upwards of 25 years, which were employed chiefly in the West India trade. It is usually to have two navigators on board but it frequently happened that they have only one; this has repeatedly occurred in my own as well as other vessels going to the West Indies. I have no hesitation in saying that it is a very common occurrence from all the ports in Nova Scotia. I should consider a vessel of from 150 to 200 tons on a voyage from Jamaica to Quebec with but one navigator on board, as seaworthy, so long as he continued able to do his duty, if the ship was, in other respects, properly equipped. I am a Notary Public and as such have a good deal to say to shipping business generally, in making and noting protest, and I do not recollect of ever having heard of an objection being made by underwriters to the seaworthiness of a vessel on the grounds of her having but one navigator on board; they might have made such an objection if a loss had arisen, but this is mere surmise. I have no knowledge of any case in which underwrites called the capacity of the mate in question. I should not detain a vessel in port for any length of time for the want of a second navigator on a voyage from Jamaica to Quebec. |
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Cross examined. I speak from heresy with regard to the vessels
mentioned by me as being without second navigators, except my own,
of which I can say positively that three of them had but one
navigator on board on West India voyages. In these instances,
sometimes it was because a navigator could not be procured and
sometimes because the master chose to go to sea with a mate who was
a good seaman but no navigator. I believe they should read and
write; if they could not, I should say they were incapable of
fulfilling the duty properly. Joseph Morrell. I am master of the brig Sarah Lovett, and have commanded vessels for 14 years, principally in the trade from the lower ports to the West Indies. Last year I made a voyage from Montego Bay to Quebec, and am now on a voyage from Cuba to this port and New Brunswick. It often occurs that vessels in the above trade have but one navigator on board, and I have myself on more than one occasion been so situated as well on the voyage out as home. Within the last three months, I know of a vessel in that trade with a mate who was neither a sailor nor a navigator. Before I became master, I went two voyages as mate and did not then know navigation. The principal duties of a mate are seamanship and not navigation. I do not consider it essential that a mate on a voyage from Jamaica to Quebec should be a navigator, because we can see land every three or four day or get sounding, to know where we are. In my opinion, if an accident were to occur to the master in the Gulf of Florida, a vessel might be brought safe into port, though there should be a navigator on board, I have no hesitation in saying that I should consider a vessel seaworthy on a voyage from Jamaica to Quebec, with no other navigator than the master on board. I served my time with Charles & Edward Jones of Brier's Island, Nova Scotia; Mr. Charles Jones was the last witness examined. Cross examined. I cannot speak as to the custom of the trade between Jamaica and Quebec as to two navigators. I cannot instance the number of vessels that have traded between the lower ports and the West Indies with only one navigator on board, I do not bear such things in mind. I do not know of a vessel of 180 tons with a mate who could neither read nor write. It is not a thing we ever look after in the lower Provinces, to have two navigators; there are as many vessels go to sea with only one navigator as with two, to my knowledge. I have not made as many voyages without a second navigator as with one. I consider a vessel properly manned and equipped with a mate who can neither read nor write, provided he be a good seaman. John Walter Douglas. I have been 21 years at sea and 6 or 7 as master. I now command the bark Douglas; it has happened to me to have a person as mate who did not understand navigation, and it has frequently happened to my knowledge, that vessels have not had more than one navigator on board, to navigate in the trade between England and the West Indies, and England and this country. I never heard of an objection being made in the seaworthiness of vessels on the ground of there being but one navigator on board. I am now about to proceed to England, and I am the only navigator in the ship. I have no hesitation in saying that I think the duties of a ship can be properly carried on with a master who is the only navigator on board, on a short voyage, by which I mean any voyage in the northwest of the equator, namely, from Europe to America, or between Quebec and any of the West Indies. While in the West India trade from England, it has occurred to me, while a mate, to be the only navigator on board, the master not understanding navigation; the same ship for two years after had only one navigator; on board the master was changed but no second navigator appointed. I should consider a vessel of 150 to 200 tons seaworthy on a voyage from Jamaica to Quebec with only one navigator on board. |
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Cross examined. I have only once made a voyage without a second
navigator, this was from London to Quebec, and the mate could read
and write. I would not engage a mate unless he could write. I
only remember of one claim being made from the underwriters for a
loss sustained by a vessel having only one navigator on board, and
I do not know that the circumstance was made known to the
underwriters. I would not swear that the second mate of this ship
was not a navigator. I consider that there is as much danger in
a voyage from the West Indies and back as to the Cape of Good Hope
and back; the climate is more deadly in the West Indies than at the
Cape of Good Hope. I would not hesitate to make a voyage from
Jamaica to Quebec across the Gulf of Florida, without a second
navigator, and with a mate who could not read nor write. I know
that from the current and changes of wind, to navigation of the
Gulf of Florida is dangerous, and it would consequently be
necessary to have a person always on deck. Including the voyage I
am about to make, the number of my voyages without a second
navigator will be four. Re-examined. In stating that I would not engage a mate who could neither read nor write, I meant if I could procure one who could; but if I were in port and unable to procure such a person, I would take the best seaman I had on board. The principal qualifications I should desire in a mate is seamanship. Other cases of vessels without second navigators have come to my knowledge besides those, already mentioned, by me, but I cannot call to mind the particular instances. Cross examined. I decidedly think that a person who can neither read nor write is unfit to be mate of a vessel on a West India or any other voyage. James Wilkinson, sworn. I am a mariner and was on board the barge Industry on her voyage from Montego Bay in August 1837. I shipped at Montego Bay as a seaman before the mast. Captain Dixon was then in command of her and the number of hands besides him was nine or ten. The vessel was what is called a temperance ship; there was no liquor allowed on board of her. From all I saw of Captain Dixon, he was very careful of his business and kept his hours regularly on deck. When Captain Dixon was promoted from the situation of mate, it was impossible to obtain, either for love or money, a mate who was a navigator and a seaman. There were very few vessels in port at the time; only two, I believe, that had mates on board, the others being small coasting craft not in the habit of carrying mates at all. The name of the man who was appointed mate in Captain Dixon's place was Joseph Bilodeau. Mr. Black. What kind of a man was he? -(laughter.) Mr. Black. I want to know what kind of a seaman he was. Witness. He was a pretty good seaman, always kept his courses well, and did as ordered by the Captain. He threw the log regularly every hour during the watch, and was in the habit of reporting it to the Captain who put it on the slate. I could see the captain engaged in doing so as I passed the skylight and looked down to the cabin. I cannot tell whether Bilodeau could read and write. I know he was a pretty good sailor. The Industry was lost about 11 days after we left Montego Bay. It was during the captain's watch at about half past four in the morning, and when I got on deck after the alarm was given I found the captain there. The wind, I think was about southwest, the weather very thick and foggy, pitch dark and blowing a great hurricane. The vessel first struck on a reef and then went ashore and was totally lost. There was no light-house visible and we were afterwards told that it had been burned by the Indians. The crew behaved very well during the voyage and there was no drinking on board. This witness was not cross examined. Captain William Dawson, sworn: It is now about seven years since I left the sea, at which I was for 25 year, 20 of them as master. I have been engaged in the Baltic and North & South American trades, and it has occurred to me to sail with a mate who did not know navigation. I served for two years myself as mate without a knowledge of navigation. This was in the Baltic trade, and I consider that a voyage up the Baltic is a more intricate one than a voyage from Jamaica to Quebec or vice versa. On the first voyage that I made to Quebec I had a mate who was no navigator, although he told me he understood navigation, before I engaged with him. On the second voyage I also had a mate who was ignorant of navigation, but I was aware of the fact previous to engaging him; the size of the vessel was about 200 tons. The third instance in which I sailed without a second navigator, and the mate was also quite illiterate, was in a vessel owned by myself, called the Martha, of 180 tons: I was bound from Sunderland to Copenhagen and on the voyage the vessel was lost. She was insured and I recovered the insurance from the underwriters, who were perfectly aware of the mate being ignorant of navigation and unable to read and write, but never murmured at paying the loss. It was the Mutual Assurance of the North at which my policy was effected, and the underwriters expressed every satisfaction. I was an underwriter myself in the policy to the amount of £1000, and the remaining £2000 was paid over to me. |
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The mate to whom I alluded was a young man who had served his
time with me and I promoted him for his good conduct.
Another occasion on which I sailed with a mate who was no navigator
was in a ship in the Tagus, in the transport service. I am fully
aware that it often occurs that vessels are provided with mates who
do not understand navigation, but I cannot specify particular cases
at the present moment. I consider seamanship as the primary
qualification of a mate and not a knowledge of navigation. A
mate's duties are, to attend to the telling of the log, see that
the ship is steered in the course laid down by the captain, whose
orders he is strictly to attend to in every respect; he cannot
change the course of the vessel without directions from the captain
so to do. I do not consider it essential to the seaworthiness of
a vessel that the mate should understand navigation. I consider a
ship seaworthy, as far as manning goes, when she has a competent
master and a sufficient crew, without reference to the
qualification of the mate as a navigator. When I had a mate who
could neither read nor write, I wrote the log book myself from the
verbal reports of the ship's course which he made to me. It is
much more convenient to have a mate who can write, as it would save
the master this trouble, but I would not hesitate for a moment to
putting to sea with a mate who could not read and write, if I could
find no one better qualified. Cross examined by Mr. Gairdner. I have made but one voyage to the West Indies and that was as an apprentice. The average of the Baltic passages is from 20 to 30 days. It is often necessary to take observations on these voyages. The voyage from Jamaica to Quebec is not so much a coasting voyage as that up the Baltic, but it is not so dangerous. The Mutual Insurance Company to which I alluded was composed of ship-owners, many of whom had vessels navigated in the same way as the Martha. Some of the rules of the association were peculiar to it, I believe; it had two surveyors, one for the hull and another for the rigging of vessels. Re-examined. The rules of the association are mainly drafted after those of Lloyd's, and they are pretty much the same. I know of many instances in which vessels insured by other associations had mates ignorant of navigation. Captain George Thrift, sworn. I am master of the bark Thomas Ritchie of Bridgewater, of 384 tons. I have been at sea for 19 years, 12 or 13 of which as master. It is not universally understood that a mate should be a navigator to fit him for the office. I have been, on several voyages with mates who did not understand navigation; four of them in which the mate could neither read nor write. It is a common practice to sail without a second navigator. The mate at the end of his watch makes his report of the log on the slate, or if he cannot write, verbally to the captain who puts it on the slate. The mate's being able to write only saves the master the trouble of making such entries, which is the only difference such qualifications occasion in the navigation of the ship. Sometimes the mate writes so badly that he cannot save the master the trouble of making the entries on the slate. All orders with respect to navigating the vessel proceed from the captain, and the mate never interferes. I should prefer as mate an able seaman who was not a navigator to one who was a good navigator and no seaman: I would sooner have a school master aboard than the latter. I never knew of an instance of a ship-master detaining his vessel in port for the sake of obtaining a mate who understood navigation. I have never been in the West India trade. I was formerly in the Baltic, and for the last seven years have been in the Quebec trade. In 1831, in coming from St. Petersburg, the vessel which I commanded got ashore, while I was unwell of the cholera. The mate was no navigator and could neither read nor write, but we recovered from Lloyd's the amount of damage sustained by the vessel and loss of cargo, consisting of the deck load and 15 casks of tallow which we were forced to throw overboard. My log book was of course sent to Lloyd's together with the usual protest, which as the mate could not write, was marked with his cross. Cross examined by Mr. Gairdner. I can say it is the custom of the Baltic trade and other trades, with the exception of the East and West Indies, of I know nothing, to employ mates who are not navigators. In the event of the death of the master and the mate being ignorant of navigation and unable to read and write, the vessel must trust to Providence. Re-examined. I do not conceive that a voyage from the St. Lawrence to the West Indies and back again can be attended with dangers greater than those of the other voyages with which I am acquainted. It would be a totally different thing if the voyage were to the East Indies. I would not hesitate for a moment to undertake a voyage to the West Indies with a mate who could neither navigate nor read nor write. Cross-examined. I do not think that the current in the Gulf of Florida are so dangerous as those in the Gulf of St. Lawrence. |
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Captain Robert Carding, sworn. I am master of the brig Corrib,
and have been about 19 years at sea, ten of which as master. I
have been in the Archangel, Baltic, Mediterranean, West India, and British North American trades, and have found that it frequently
occurs that mates are unacquainted with navigation; from my own
experience I can state this. As many, I should say, are not
navigators as are so. I do not think it at all necessary that the
mate should know navigation if the master be a competent person.
(The witness here describes the duties of a mate, similar to the
manner in which preceding witnesses described them; it is therefore
unnecessary to insert them here, and the same remark will apply to
succeeding witnesses.) It frequently occurs that a man is engaged
as mate who can neither read nor write, being taken as an active
seaman; he is looked to for his seamanship and not navigation. I have made three voyages to St. Petersburg, one to Archangel and one to Odessa, with mates ignorant of navigation. The voyage to Odessa is fifty days out. I made it in the vessel I now command, which is of 198 tons, and the mate I had was ignorant of navigation, of which I was aware before starting on the voyage; the same mate returned with me on a voyage to Rotterdam, without a second navigator. I met with a loss and the claim was settled by the underwriters without any difficulty whatever; the mate could read and write. I was insured by a company of underwriters in Newcastle, many of whom I believe knew my mate as a competent seaman but no navigator. I think that a vessel of 156 tons is competently manned for a voyage to and from the West Indies, without any navigator on board but the master, nor do I think it essential on such a voyage that the mate should be able to read and write, as his qualifications in this respect can only save the master a little trouble. As regards navigating the vessel, I direct the mate what course he is to steer, and do not allow him to put the ship about or alter her course without consulting me first. I would not detain a ship at Montego Bay for want of a mate who could read and write. Cross-examined. The voyage from Rotterdam of which I have spoken was made in thirty eight hours. The underwriters' association was established on the principle of Lloyd's and was not a mutual association. I cannot state positively that they were aware of the mate being unacquainted with navigation previous to their paying the claim. Captains of vessels coming to this port from the West Indies are not in the habit of looking particularly for second navigators. I have met many this year coming here from the West Indies without a second navigator. I know of one mate, who had never seen a chronometer and did not know what it was; this was in trading to Halifax. In beating through the Gulf of Florida, I do not conceive it necessary to heave the log oftener than every two hours. I have made from fifty to sixty voyages altogether, from port to port. If I were in the West Indies and my mate misbehaved himself, I should most certainly discharge him without thinking whether I could or could not get another navigator, and I do not think it would be imprudent to act so. There is more danger to life from the climate of the West Indies than from that of St. Petersburg. Re-examined. I would not wish to take a voyage to the East Indies without an experienced navigator on board; this is the only exception that I know of with regard to this point. The case was here adjourned until tomorrow. | ||
| Friday, 25th October. | ||
| Michael Mitchell. I command the Julius Caesar, 737 tons. I have been years at sea, 14 of which as master, during which period I have made voyages to the West Indies from Liverpool to Mobile, New Orleans, &c. I have sailed from Quebec to the West Indies and back, and have frequently seen mates of vessels who were not navigators. Mates unacquainted with navigation and unable to read and write, would, if able seamen, perform the same duty as if they possessed these qualifications with the writing the entries for the log-book; their duties being confined to seamanship and taking charge of the men. If I were in the West Indies and wanted a mate, I should not conceive myself justified in waiting for one who was a navigator or who could read and write; I would put to sea, taking one of my best seamen as mate, and should consider my vessel as seaworthy under these circumstances. Reading and writing are not of much consequence in a mate, for the want of them only give the master a little extra trouble, it is better, however, that he should have them. Mates seldom write good hands, and to relieve them, I have known passengers to write the log. I know that the light-house on Cape Florida was destroyed by the Indians about two years ago; and has not been rebuilt in consequence of the war in Florida. | ||
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Cross-examined by Mr. Vanfelson. There is a light-house opposite
the place where the one destroyed formerly stood; I saw it about 3½
years ago, and again within the last 3½ months. When the mate is
competent to do so, it is his duty to keep a log book separate from
the captain's. In case of the death or severe illness of the
master, the mate takes charge of the ship, and if the mate is not
a navigator they must do the best they can. I should say that it
is the custom for vessels trading between this port and the West Indies to have 2 navigators, if they can be obtained. In the
course of my experience as ship master, I have two or three times
had mates who were not navigators; this was on the British coast,
and I could have had navigators, but preferred good able seamen who
were not. I have never, as master, sailed through the Atlantic
without a second navigator, as they called themselves, but some of
them knew very little about it. Re-examined. In my opinion the voyage from Quebec to Jamaica and back is a coasting voyage, for in a short time you are from one point to another. A couple of days being the utmost, that a vessel with a fair wind can be out of sight of land. It is difficult, in the West Indies, to get a mate who is a navigator, I should think, the ships seldom parting with crews, and no seamen being left there except from sickness. This difficulty is of course much increased in the month of August, when there are fewer vessels in port. I cannot see any necessity for a vessel, trading between this and the West Indies, to be better manned than if trading anywhere else except to the East Indies. A vessel in the West Indies and Quebec trade would require 8 or 9 hands, including the master, with a couple of boys. Thomas Thompson. I command the ship Dochfour, 400 tons register, but 700 tons burthen, a very difficult vessel to navigate owing to her great draught of water - 19½ feet. I have been between 17 & 18 years at sea, and it is nearly 11 since I first became master. My principal trade has been from England to Quebec and New York, I have been also in the Baltic and have made 3 or 4 voyages to the West Indies. I have had two or three mates serving under me who were not navigators and who could read and write very imperfectly. It would be too tedious to mention the numerous instances of this occurring, to my own knowledge, with other vessels. Had I my choice, for a mate, between a good seaman who was no navigator and a navigator who was not a good seaman, I would take the former. I do not consider a knowledge of navigation so essential to a mate as practical seamanship. Decidedly I would not wait in the Island of Jamaica to obtain a navigator for a mate; I would take the best man in my ship as mate and put to sea, and this is the way in which all such cases that have come within my knowledge were decided. The voyage from Jamaica to Quebec is usually denominated a foreign voyage, but I should say it is a coasting voyage, for, once round Cape Antonio, the westerly extremity of Cuba, and getting into the Gulf of Florida, you must never be more than a day and a half from land; we invariably take first departure from the head-lands, though furnished with ever so good chronometers, sextants and quadrants. I should consider it necessary to have two navigators on board on a voyage to the East Indies owing to the great length and meeting so few ships, but I do not consider that any such necessity exists on a voyage north of the Equator. For my own part I would never hesitate taking any voyage north of the Equator without a second navigator. Cross examined. I have been twice through the Gulf of Florida, I have never made a voyage from Jamaica to Quebec but have made part of it, having rounded Cape Antonio and came as far as Cape Hatteras. I do not know the custom of the Quebec and West India trade with respect to the number of navigators on board the ships, but I do not think that the trade is large enough to have a custom of its own. When I first went to sea, on a Baltic voyage, the mate knew no more about navigation than the merest boy in the ship, and that same man was mate in a voyage from Quebec to Leith and back; he was mate of the vessel for 3 years and could not even sign his name. The first instance in which I had a mate who was no navigator was in the case of my brother who went with me on a voyage from London to the Belize in the Bay of Honduras. In the beginning of last year, my mate left me and sooner than take a stranger who knew navigation, I promoted my second mate who was ignorant of the science. On the following voyage I still retained him as mate, thought I might have had others who were navigators, but I preferred him as he was a good seaman. The next voyage, I still retained this man, and I have him yet as mate, although he is still ignorant of navigation. I know of a number of vessels sailing without a second navigator, but I cannot at present bring them to my recollection. Two thirds of the vessels sailing from the north of England have not second navigators; those from the south and west of England are better provided with second navigators. I now speak of the vessels coming to Quebec. Some of the ship owners in the north of England prefer insuring at Lloyd's, some of them prefer insuring in clubs. I cannot say whether the majority prefer insuring in clubs. It is more difficult to obtain remuneration for a loss from the clubs than from Lloyd's. |
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Digby Morton. I command the bark Magnet, regular trader between
this port and England. I have been 16 years at sea, out of which
I have served 7 years as master. I have sailed from England &
Ireland, but not from America, to the West Indies. It is generally
the custom to have a second navigator on board, if you can procure
one. I certainly would not hesitate to put to sea from Montego Bay without a second navigator, if I couldn't procure one. I have
known many instances of vessels sailing from different ports
without second navigators; it has occurred on board ships that I
have commanded and in which I have served. Seamanship and not
navigation is the primary qualification of a mate, the nautical
skill of whom is never called into exercise by me. I should say it
would be a hard matter to procure a mate in Jamaica or any of the
West India islands in the month of August, the reason of which is,
that the ships are obliged to leave at the latter end of August to
avoid incurring a higher rate of premium assurance, which is put on
previous to the hurricane months. The most part of the mates
sailing from the north of England do not, I should say, understand
navigation, an ignorance of which, or being illiterate, does not at
all disqualify a man from being a mate, provided he be a good
seaman. I do not conceive that the voyage from the West Indies
requires nautical skill above other voyages. I am acquainted with
Captain John Dixon, late master of the Industry, he having made a
passage in my vessel last fall. I had no opportunity of judging of
his nautical skill, but no man could have behaved himself better
than he did. Cross examined. I know nothing of Captain Dixon before 22nd November, 1838, the day on which he sailed with me from this port. I know that more than two thirds of the vessels that go from the northern colonies to the West Indies, are unprovided with second navigators. I do not bind myself to this port in making this remark. I am not acquainted with any vessels that have left this port so situated, but I know of many that have gone from Halifax. In answer to a question by a juror. I kept Captain Dixon in my own cabin, he was not as a common seaman before the mast. Cross examination continued. I had agreed with Captain Dixon to give him his passage for working on the voyage, but when we arrived there, I made him a present, besides, in consequence of his good behaviour. The voyage from Halifax to the West Indies does not differ much, as to risk, from that from Quebec to the West Indies. James Wylie. I have been 17 years at sea and 9 years master. I now command the Bellona. I have traded to Newfoundland, Portugal, the Brazils, and have been at most of the West India islands but not at Jamaica; I have been through the Gulf of Florida on a voyage to New Orleans. It often occurs that mates do not understand navigation; it occurred to me once. The principal duties of a mate relate to seamanship and not navigation. I have known mates who could neither read nor write, and have written my own log book for five months, whilst sailing with an illiterate mate. This man I had on a voyage from Lisbon to Newfoundland, and we met with an accident which led to a claim on the underwriters, which was paid without difficulty. I should call the voyage from Jamaica to Quebec a coasting voyage, as 1½ or 2 days at the most, would enable you to reach the coast of America at any time. I have known several vessels return from the West Indies to England with only one navigator on board, in consequence of having lost their mates by death. The vessels engaged in this last named trade are of a much larger size than those sailing from here and other North American ports to the West Indies. I have never heard of a vessel being detained in port in the West Indies in consequence of wanting a second navigator. I should think that a schooner-rigged vessel of 156 tons might safely come from Jamaica to Quebec with only one navigator. Cross-examined. I cannot speak particularly of the trade between this port and the West Indies with respect to having two navigators; but it is very seldom the case that such happens with the small vessels trading between Newfoundland and the West Indies. I do not remember any other time sailing without a second navigator, except that which I have mentioned. I was never asked with regard to the mate when I claimed the loss from the underwriters; I don't know whether it would have made a difference. Re-examined. The small craft which I mentioned as trading between Newfoundland and the West Indies are vessels of from 150 to about 260 tons. David Vaughan. It is now 18 years since I first went to sea. I have sailed to Barbados from Liverpool. It is not unusual to find mates on board merchant ships who are unacquainted with navigation. On the voyage from Barbados to Liverpool of which I speak, the mate was not a navigator. The greater part of the mates of vessels sailing from north of England do not understand navigation, which circumstance I have often heard remarked among ship master. I consider that it would be very hard to procure a mate understanding navigation, in the West Indies, as very few seamen stop on shore unless from sickness. This difficulty occurs at the latter end of August for the reason that vessels leave port about that time to escape the hurricanes. In answer to a question from a juror. September is considered one of the hurricane months. |
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Examination continued. I would not stop a moment in the West
Indies for want of a second navigator. I would take the best man from before the mast, as mate, and consider my ship perfectly
seaworthy. There is great danger in remaining at Montego Bay just
previous to the hurricane commencing. I consider that there is
more danger in remaining in port than in putting to sea, at that
time. Cross examined. I was carpenter and second mate on the voyage from Liverpool to Barbados, of which I have spoken. I had not a knowledge of navigation at that time; there was no navigator on board but the master, and the mate could not sign his name. Atkinson. I have been at sea since 1814 and master since 1822. I was in the trade between Great Britain and America and have been several times to the West Indies. It has occurred twice to me to have a mate who was not a navigator. I should consider it essential to have a mate understanding navigation on a long voyage, such as one to the East Indies. It is not unusual for a vessel to leave England without a second navigator, but it frequently turns out that a man who said he understood navigation knows nothing about it. I should not think of detaining a vessel in the West Indies on account of not having a second navigator. I should at once go to sea without one if he was not to be procured. The duties of a mate relate to seamanship, the navigation of the vessel rests with the master. No cross examination of this witness. Richard Alleyn. I am a commander in the Royal Navy, and have been so since 1814. I was actively employed for twenty years previous to that period, in His Majesty's service. I was once in the West Indies, and have seen a good deal of the merchant service, although I never was in it, having been frequently employed in taking convoys. I do not consider it essential that the mate of a merchant ship, on a short voyage, should be a navigator; I should conceive his being a good seaman as more essential, his principal duties depending on seamanship. I have known vessels go to sea with a single navigator and have frequently known valuable prises being put in charge of a single navigator. It was customary to do so when I served. I should certainly not consider a schooner of from 150 to 160 tons unseaworthy on account of her having one navigator on board. No cross examination of this witness. The correspondence which took place between Mr. Bristow on the part of the plaintiffs and Mr. Stevenson, on behalf of the Canada Marine Insurance Company, was put in, and read. William Bristow again called. The plaintiffs in the case had insurance effected in England on the surplus of the cargo of the Industry, the Canada Marine Insurance Company having declined taking greater risk than £2000. The insurance in England was effected at Lloyd's and with the London Assurance Company, and both of these offices paid the whole amount of their respective risks on the cargo of the Industry. They made no objection to the qualifications of the mate. Cross examined. Between the 21st and 23rd September, 1837, I was informed of a letter having being received from John Ryan by Mr. Dyde, and I think part of that letter was read to me by the latter gentleman in the steamboat office. The letter mentioned that the former mate of the Industry, Dixon, had been appointed captain of the vessel; I am not aware that Cook's name was ever mentioned. Mr. Dyde was then agent of the St. Lawrence and Tow Boat Companies, the owners of the Industry. I know of the recovery of the loss from the London Insurance Companies in the way that such information generally comes to mercantile men, namely, by letter of advice and by the amounts being credited to the accounts current of the London correspondents of the plaintiffs. The usual vouchers were sent to the underwriters and on reference to the protest it will be found that it is signed by Joseph Bilodeau, as mate, while in the body of the document, he is described as carpenter and mate. I have reason to believe that the underwriters in London were aware of the mate being no navigator, for the plaintiff's house here instructed their house in London to ask the opinion of Lloyd's on this particular point, in consequence of the objection raised by the Canada Marine Insurance Company. I have no personal knowledge of the underwriters being aware of the fact beyond what I derived from the correspondents already alluded to. The witness was here proceeding to state another source from whence he had derived information on this point, when the Counsel for the defence objected to the testimony as illegal. He wished the witness to speak from his own personal knowledge. Cross examination continued. There was nothing said in the papers first sent to underwriters respecting the mate being no navigator; the papers were nothing beyond the usual documents sent on such occasions. It was only subsequently to the difficulty arising here that we had an idea of any such question being raised. I do not know positively in what capacity John Ryan went on board the Industry. I heard it mentioned that the owners of the vessel were not very well satisfied with Captain Cook when he was here, in consequence of his delay in getting the vessel ready for sea, and that they would send Ryan to look after him and see that he did not run the vessel into too many expenses. I had nothing to do with Ryan nor had the plaintiffs anything to say to him, either on the vessel's going or returning. We have had no correspondence respecting the sale of the property recovered from the wreck; having abandoned the whole, we of course had nothing to do with it. The case for the plaintiffs here closed. |
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Mr. Gaidner, in commencing his address to the jury on the
defence, remarked that it was always under great disadvantage that
an insurance company appeared in court as defendant in an action
brought by individuals for the recovery of a loss. It was
considered unjust that after receiving the premium they should not
be obliged to abide the consequence, however strong might be their
grounds of defence. There was a feeling of sympathy, too, in
favour of an individual contending with an association, powerful by
means of its combined resources. This feeling have been largely
taken advantage of by the learned gentleman on the opposite side
who spoke first, and the learned gentleman who followed on the same
side perused a similar line of argument. They had cautioned the
jury to put a check on the power of the defendants when used for
the oppression of individuals in the case now before the jury, he
(Mr. Gaidner) would remark, that the contestation was in fact not
between the present plaintiffs and the insurance company, but
between the latter and another association of great power and
influence which engrossed one branch of the trade of this country.
He alluded to the St. Lawrence Steam Boat Company, the owners of
the barge Industry, and of the loss of which this action had
arisen. He mentioned this in order to remove any impression which
might be made on the minds of the jury from the insinuations thrown
out by the counsel on the opposite side, respecting the
illiberality of all corporate bodies in general, and of the Canada
Marine Insurance Company in particular. He was convinced that the
jury would put aside all considerations of this kind, which had
nothing whatever to do with the case, and that they would return
their verdict according to the facts which would be laid before
them in evidence. What then were these facts? On the sailing of
the Industry from Quebec, it was shown that she was properly
equipped and manned, having a competent master and mate, a
sufficient crew. She had on board also another person, who
throughout is styled the supercargo, though in reality his
character was that of agent for the owners of the vessel. On the
arrival of the vessel at Jamaica, this person, Mr. Ryan, took upon
himself to dismiss the master, inserted him own name on the
register, as master and continued to act as such till the day
before the vessel sailed on her homeward voyage. On the 29th August, Dixon, the mate, was made master, and on the 30th the vessel sailed from Montego Bay, without a mate or a second person on board capable of navigating her in the event of any accident befalling the master. It was not on the grounds that the master had been changed that the present claim was resisted, but on the grounds that when the vessel left Jamaica, she was not equipped and manned to such a manner as to render her seaworthy on a voyage of the length and difficulty of the one she was about to undertake. It would be in the power of the defendants to prove, that it was the invariable custom for vessels on this voyage to have two navigators on board, and it would be seen that the law was in concordance with this practice. And here the jury would remark, that if the vessel was unseaworthy on leaving Jamaica, it had been rendered so by the act of the owners by their agent, and it was against them and not against the Canada Marine Insurance Company that the plaintiffs should have brought their claim. But besides the want of a second navigator, it would be seen that Dixon, the master, was incompetent to have charge of the vessel. It was a misfortune for the defendants that they could not obtain the evidence of a disinterested party in relation to what occurred on the voyage. The master who had been examined, was of course anxious to exculpate himself, and his evidence must be looked upon with some degree of suspicion. From it, however, and the evidence of the seamen, enough could be gathered to show that there was gross mismanagement. The log kept by Ryan, and the master admits that he never revised it. On looking at the chart to which reference is made, it would be seen that the vessel was kept close in the lee shore through the whole Gulf of Florida, until she struck. After the wreck, the master, though by law the agent of all concerned, appears to have been wholly unable to perform the duties required of him, and Ryan takes the command, proceeds to Key West and sells the cargo and materials saved, in his own name. From the whole it would appear that Ryan was actually, and Dixon only nominally, the master. |
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With respect to the question of unseaworthiness the plaintiffs
have examined a number of ship masters whose testimony was
certainly of an extraordinary nature. They testified that in their
opinion it was not at all necessary to have a second navigator on
board a ship, and all stated that they had known many instances of
a ship proceeding to sea without anyone on board capable of
navigation her except the master. These were then general
statements, and the jury would observe that almost every witness
examined the day before, went a step farther than the one preceding
them. But when examined as to the particular instances, their
evidence was considerably shaken. Some of them had been at sea
twenty, others five and twenty years, and the greatest number of
instances of sailing without a second navigator occurring to any of
themselves was four, or at most five, and yet from such evidence it
was endeavoured to establish the practice of sailing with only one
navigator. Again it would be observed, that not one of the
witnesses who had been brought forward had been engaged in the
trade between the West Indies and Quebec, and consequently, they
knew nothing of its usages. The plaintiffs counsel seemed to consider of great importance that part of the evidence of these witnesses in which they stated that they preferred a mate who was an able seaman to one who was a navigator. It was not surprising that a master should prefer a seaman as mate, because an active seaman would take off the master's shoulders the more laborious duties of the command. But the question was not which the master would prefer. It was whether a vessel was properly manned and equipped with only one navigator on board. So long as no accident befell the master, the mate's knowledge of navigation was not brought into employment, but although not called into operation, it was no less essential for the safety of life and property that there should be someone on board capable of bringing the ship to its destined port in the event of the master's death or sickness. It was said that in the present case no accident had befallen the master, and that therefore the vessel had always been properly navigated. But the jury would be informed by the court, that the question of seaworthiness applied to the beginning of the risk, and if they were of opinion that the vessel was incompetently equipped on the day of sailing from Montego Bay, when the risk commenced, it mattered not from what cause the loss subsequently arose. The policy was null from the beginning, and no claim against the defendants could be maintained upon it. It would be in the power of the defendants to show that the usage in the trade between Quebec and the West Indies was invariably to have two navigators on board. It was with a knowledge of this usage that the policy in question was executed. And this usage is inconsonance with the law not only of England but of every mercantile nation. That there were few cases to cite proved nothing in favour of the plaintiffs. The only case reported in the English books was that of Clifford & Hunter, in which a ship was held to be unseaworthy for want of a second navigator. It would be for the plaintiff to show that a different rule had been laid down in other cases. That higher qualifications were required in a mate than that of mere seamanship he would quote to the Court from 1 Bell 618. I. Peter's Admiralty Reports, page 151, and Ordre de la Marine, tître du Capitaine Art. 25. In all these systems the same wise policy for the security of life and property was observed, and he trusted that in the present suit, the jury would sanction by their verdict the necessity of its observance. He would not take up more of the time of the court and jury as he was to be followed on the same side by the learned counsel on his right. Mr. Vanfelson, who conducted the defence with Mr. Gairdner, also addressed the jury in a speech of considerable length, in the course of which he reviewed the evidence on the part of the plaintiffs. The following evidence was then adduced for the defence. (As in the case of that for the prosecution, some of the witnesses were examined previous to the trial, and their depositions reduced to writing, were read to the jury.) Andrew Beckwith. I was at Montego Bay in August 1837 and went on board the Industry to see Captain Cook, who informed me that he was about to leave the vessel, and in a day or two after he took his passage on board any vessel for Quebec. When I went on board the Industry, I found the rigging, spars, &c., in fine order except the bowsprit which was a little fished, and, afterwards, at the request of Mr. Ryan, I went and saw the hatches opened and found the cargo in good order. The crew, when I went on board the vessel, were lying on the deck and so was Dickson, who, when called by Ryan, got up and uncovered the hatches. Cook came to Quebec with me, and I found him to be a good navigator, and to all appearance a good seaman. I know Dickson, having shipped him at Montego Bay as a seaman in March, 1837, I saw him afterwards in Quebec when he had shipped in the Industry, he was steady with me on board the vessel; I have seen him when I thought he had drank too much. When I was leaving Jamaica he came on board with some letters and was then quite tipsy. The only way he could have got tipsy was by broaching the casks as no liquor was allowed on board. I cannot say I would have given him charge of a vessel of my own, but I would not from what I saw of him coming home with me, have any objections to take him as a mate. After what I saw of him in Jamaica, I could not have taken him if I could help it. |
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Cross examined. I left Jamaica three or four days after the
arrival of the Industry, I was on board of that vessel three times,
I think. On the first I found Dixon attending to his duty, on the
second also, I think, and one the third he was asleep on deck, but
upon being called by Ryan, he gave directions to men to open the
hatches, which is the mate's duty. I thought from Dixon's
appearance that he had been drinking, but I cannot take upon myself
to say that he had. It was only from the appearance and sound
sleep that I thought so, for he went about and showed no indication
of being intoxicated at that time. I have no knowledge of his ever
being intoxicated while serving under me, it was only on one
occasion that I saw Dixon really tipsy at Montego Bay. Re-examined. It is not usual for mates to sleep on deck in the daytime. Wilson. I have been 40 years at sea, during which period I have been 30 years master. I now command the Providence, of Hull. I have been in almost all trades. I should not consider myself safe without another navigator on board; I generally have two navigators besides myself. As far as I know it is generally the custom to have two navigators on board ships. I should not conceive the vessel, in such case, to be properly manned. I would not myself sail without a second navigator for without one I should decidedly consider the vessel as unseaworthy. Cross examined. At Hull there is always a good supply of seamen and competent officers, and I have experienced no difficulty of late years in obtaining them. The size of the vessel I command is 659 tons register. It never happened to me to lose my mate in a foreign port. I would not proceed on my voyage without a competent second navigator. I would remain until I got one. I never was placed in such a situation but if I were so I should not consider it safe to put to sea with only myself as navigator on board. I do not remember any instance of a vessel having a mate who was no navigator, nor I ever heard of a vessel returning to England with loss of all her navigators but one. All the mates I have had in sailing from the north of England have been navigators, but I cannot speak of the usage that obtains in vessels other than my own. I cannot take upon myself, for I do not know, to say whether other vessels do not sail without a second navigator. Re-examined. I have sailed in a vessel of 240 tons, and occasionally have had two navigators besides myself on board of her. Joseph Ferrie. I command the Charlotte, 378 tons, have been 37 years at sea, 17 of which as master. I generally carry three mates understanding navigation. On one occasion, when sailing from the port of Lancaster, I put to sea without a mate who was a navigator, the one I had engaged having absconded; it was with much anxiety I did so and in consequence of orders from the owners to wait no longer. My second mate could read and write and take the sun, but could not work the days reckoning. I would not consider myself seaworthy without a second navigator on board. I have traded between the Clyde and the West Indies, have been to New Orleans and the Brazils, and latterly have been employed in the North American lumber trade. I should not like to come in a vessel from Jamaica to Quebec without a second navigator. It would make no difference on a foreign voyage, whether a vessel were large or small, as far as regards the necessity of her having two navigators. The general custom of merchant ships is to have two navigators; I never knew it otherwise except in the single case to which I have alluded as happening to myself, and of another captain who lost his mate at Quebec by cholera, in 1832. Cross-examined. I have never sailed from Quebec to the West Indies though I have from Scotland. Each of the three navigators in my ship works his own reckoning and the three results are compared together. I never knew in former times, of vessels in the West India trade with only one navigator. I cannot say whether it be difficult to find a mate at Montego Bay at the latter end of August. I know that vessels are anxious to leave there before the hurricanes come on. I never was in Jamaica but once. A vessel by remaining there during the hurricane months is very much exposed to be driven ashore, and it is safer to put to sea than to remain in port. I have known vessels to slip their cables and run out to sea rather than remain. I would put out to sea without a second navigator rather than remain there, but I should not consider myself safe. I cannot say that I am acquainted with the usage of the ports in the north of England with regard to the number of navigators on board the ships. I do not make it my business to enquire into the affairs of other ships. |
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Robert Young. I am Superintendent of Pilots, I have been 31
years at sea, 20 of which as a master, and have been in the Baltic,
Mediterranean and Quebec trades. I have always had one navigator
besides myself on board the vessel in which I sailed. I do not
consider a vessel on a foreign voyage to be seaworthy with only one
navigator. I consider the voyage from Jamaica to Quebec a foreign
voyage. I have always understood it to be the custom to carry a
second navigator and frequently a third. Cross examined. I was never engaged in the West India trade, therefore in speaking of the general custom I do not allude to this trade. I have never experienced any difficulty in obtaining seamen and officers in the ports at which I sailed from England. I have heard that some difficulty exists in this respect in the West India Islands, but I have no personal knowledge of the fact. It has never occurred to me to be in a port where I could not procure a second navigator. If I were situated as Dixon was, I would consult my consignees and proceed to sea without a second navigator. Adjourned until tomorrow. |
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| Saturday, 20th October. | ||
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William Holt. I command the ship Mathew Bell, have been 21 years
at sea and ten years as master. I have made voyages to the East
Indies and to Africa, and, as apprentice and second mate have made
several voyages from Liverpool to the West Indies. I know nothing
of the custom that exists between this port and the West Indies,
but from Liverpool there, when I sailed in the trade, was
invariably to have three navigators on board the vessel. I have
never known it otherwise in the West India trade. I do not
consider a vessel trading between this port and the West Indies
seaworthy, as far as her hands went, if she had only one navigator. Cross examined. I have never sailed between Quebec and the West Indies. There is no difficulty to procuring men and officers in Liverpool. It has occurred to me once, when in Africa, to find myself left without a second navigator, my mate having died. In this emergency I applied to a man-of-war on the coast but could not obtain one, and received directions to proceed to sea without a second navigator which I did. This is the only occasion on which I have been left in a foreign port without a second navigator. If the man-of-war had not been upon the coast I should have taken upon myself to proceed to sea without a second navigator provided I was in good health. I am now in the employ of Mr. D. Burnet, one of the defendants in this case. It would depend upon circumstances whether I would act at Montego Bay as I did in Africa, being placed in a similar position. W.K. Rayside. I have been at sea 35 years, 26 of which as master, principally employed in the Quebec trade. I have made one voyage from Quebec, and several from the Clyde, to the West Indies. Since 1834 I have resided in Quebec, and been connected with shipping. In all cases coming to my knowledge, vessels trading between Quebec and the West Indies have carried two navigators. I should not conceive a vessel to be seaworthy, as far as her crew is concerned, coming from Montego Bay to Quebec with only one navigator on board. I consider such a voyage to be a foreign voyage; it may be made a coasting voyage, but that would be the most direct way. Cross examined. The tonnage of the vessels which I commanded was from 221 to 315 tons. There is no difficulty in procuring a mate on sailing from the Clyde. At Montego Bay in the latter part of August, vessels generally leave prior to the hurricanes commencing, and it is the practice of insurance companies to demand an advanced rate of premium on risks on vessels remaining after August. I never was in Montego Bay, but I am aware that it is an open roadstead. It would be dangerous for vessels to remain there after the setting in of the hurricanes, more dangerous I should say than to put to sea. If I were in Montego Bay at the latter end of August and unable to procure a second navigator, I would if in health, put to sea without one. I should prefer a mate who was a good sailor and no navigator to one who was a good navigator and a bad sailor. I never carried a mate who was no navigator myself, but I have known a few instances of its being done. I have very seldom had occasion to change mates; the one I had in the Cherub remained with me for nine years, and others remained with me for two and three years. I never had occasion to look out much for a mate. The vessels I commanded were always fitted out in a superior manner. A vessel with a master, mate and crew of 8 or 10 men would be sufficiently equipped for a voyage from Montego Bay to Quebec, better equipped than vessels generally are in that trade. It is certainly more necessary to have a second navigator on a voyage from Madras than it would be on a shorter one, the necessity being increased in proportion to the length of the voyage. Before the Industry left Quebec, I was surveyor there for the Canada Marine Insurance Company, with a salary from the Company. I am not in their regular employ now, but survey vessels for them when called upon to do so. Re-examined. It is as necessary for a small vessel to be well equipped as a large one, and it is as difficult to ascertain the situation at sea of the one as the other. |
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| Henry Woolsey Bayfield. I am Captain in the Royal Navy and have
been at sea in different capacities in Her Majesty's service for 33 years. I should not consider a vessel seaworthy on a voyage from
Jamaica to Quebec with only one person on board capable of keeping
a reckoning of her course, because one person cannot always be on
deck, and in his absence, there would be no one to take his place,
besides there are accidents such as sickness which might render the
one person incapable of navigating the ship. The general custom in
merchant vessels is to have one mate and sometimes two, one for
whom must be capable of navigating the ship independently of the
captain who is always a navigator. This is my opinion as to the
general custom of vessels making such distant voyages as that from
Jamaica to Quebec. The navigation through the Gulf of Florida is
dangerous. The climate of Jamaica is very unhealthy, and it is a
matter of notoriety that ships sailing there frequently lose a
number of crew from sickness. From these facts I should think that
a vessel on that trade should have more than one navigator on
board. I would not take a passage in a vessel from Quebec to
Jamaica with only one navigator on board, because in case of the
death of the one navigator, I would be obliged to navigate the
vessel myself. When prises were sent away, in the cases which came
to my knowledge, two navigators were sent in charge of each. By
law, mates of merchantmen are exempt from impressment, on the
ground that if taken away their absence might endanger their ships.
I consider it as necessary for a vessel to have two navigators on
a voyage from Montego Bay as from the East Indies. Cross examined. My maritime service has been exclusively in the Royal Navy, or in ships employed in the public service, but I have made several voyages in merchant vessels. I have never sailed from Jamaica to Quebec or vice versa, but have sailed from England to Jamaica and back again, passing through the Gulf of Florida. (This witness was cross-examined at some length, but nothing particular was elicited beyond a repetition of the preceding evidence.) Thomas Hunter. I am master of the ship Matthew Bell now in Quebec, and have been as ship-master for ten years; I have been engaged in several different trades, and in all of them, the custom has been for vessels to have two navigators on board. I have never known an instance in seventeen years, of a vessel going on a foreign voyage with only one navigator on board. I do not consider a vessel so manned as seaworthy, and I would not proceed to sea myself without a second navigator. I consider a voyage from Quebec to Jamaica, a foreign voyage. A man who can neither read nor write is unfit to be a mate on a foreign voyage, because he cannot perform the duties of the office. Cross examined. I am in the employ of David Barnet, one of the defendants in this case. After detailing the names of the vessels which he has commanded, this witness says: I never fitted out a vessel for the West India trade, and cannot say what vessels are not engaged in it with one navigator only. I would not proceed to sea without a second navigator, if I could procure one, but if I could not, I would proceed without one. Re-examined. I consider it quite as necessary to have two navigators on board a ship from Jamaica to Quebec, as from England to Quebec. I conceive it necessary for all vessels on a foreign voyage, to have two navigators without reference to the size of the vessel. Cross examined. I don't speak from actual knowledge of what occurs on the West India trade, I am aware that in the East India trade there are always two navigators on board the ships. Robert Maxwell. I am master of the ship Rebecca, and have been a ship master for about twenty-three years, principally engaged in the trade between this port and the West Indies, Liverpool and the Clyde. It is the custom for vessels on a foreign voyage to have two navigators on board, and I don't consider it safe for a vessel to proceed to sea with less, particularly on a West India voyage, (describes the duties of a mate) from his being required to perform these duties; a mate must read and write, otherwise the ship cannot be properly manned. I consider a voyage from Jamaica to Quebec, much more dangerous than a voyage from England to Quebec, and that it is much more difficult to keep the ship's way in the former than the latter. The climate of Jamaica is unwholesome, and I have known whole crews cut off by fever; in coming through the Gulf of Florida, I would prefer the weather shore with the wind at northeast. Cross examined. It is within my knowledge that vessels sometimes leave Jamaica for this country with but one navigator on board, which occurs when a second navigator cannot be procured; it is usual for the vessel in this case to proceed without one, if there be a sufficient number of hands on board. I know of no instance of a vessel being detained in port for any length of time, to procure a second navigator, where seamen were to be had, and where they are to be had, you can generally find navigators among them. There is less danger in performing the voyage to, or from Jamaica than in performing both, but of the two I consider the homeward voyage the most dangerous, on account of the sickness which frequently does not break out until they have left Jamaica. In the event of my being in a port in which I could not procure a second navigator, I would take upon myself the responsibility of proceeding without one. |
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Henry H. Tuzo. I have been at sea for the last 25 years, in the
West India trade, as master of a vessel, and am well acquainted
with the trade between Quebec and the Windward Islands. I have
never know an instance of a vessel sailing from Quebec to the West
India Islands and back with only one person on board who understood
navigation. I would not proceed to sea in a vessel so navigated,
because, I do not conceive that the lives of the people and the
property on board, would be safe. One the last voyage I made, I
retained a mate, who was a worthless character. I did not choose to
discharge him, and proceeded to sea without a second navigator,
because it might cause a question with the underwriters in the
event of loss. I conceive that the voyage to and from Jamaica is
a more dangerous one by far than that between Quebec and the
Windward Island, the latter being in open sea, the former among
keys and shoals. The return voyage from Jamaica, is more dangerous
than the outward one, for a vessel must either beat up and come to
windward of Cuba, and through the Calicos passage, or go through
the gulf stream to get out, and it requires a fast sailing vessel
to beat up; a vessel that is heavily laden cannot beat up, but must
go through the gulf stream, or Gulf of Florida, where she has many
dangers to encounter. Cross examined. I am in the employ of Stevenson, and before that was in the employ of Mr. Leaycraft. I know nothing of the present difficulty, when I hesitated to discharge my mate, between August and December, there is generally more difficulty in procuring seamen in the West Indies than at any other season, at least it is so in the Windward Islands. I cannot say as to Jamaica, in saying that I would not proceed to sea without a second navigator, I mean if I could not procure one, in which event I should feel bound to proceed on the voyage. I never was in the Gulf of Florida. The case for the defence having now closed. Mr. Black, in reply, said, that from the close attention which the jury had bestowed upon the case, and upon the examination and statements of the several witnesses who had been produced, as well on the part of the plaintiffs as on the defence, it must be manifest to the minds of the jury that the question in which all this various testimony centered was, whether Messrs. Gillespie, Jamieson & Co. should be deprived of their recourse against the Canada Marine Insurance Company for the amount insured by them upon the goods which they shipped at Jamaica, in consequence of the inability of the owners of the vessel wherein the goods were laden to procure in the West Indies a mate possessing the qualifications as to the art of navigation, distinguished from seamanship, which would have enabled him to take command of the ship, if from any unforeseen accident the master should have been unable to discharge the duties of his situation. That it would be desirable that not only the master and mate, but that every man on board the vessel should be in possession of sufficient nautical skill to direct the course of the vessel might readily be granted, but that was not the question. The question here was, whether there was a positive, certain, known rule which obliged the owners of ships, of whatever dimension, and engaged in whatever trade, and under all circumstances and contingencies to have on board their vessels over and above a master of competent skill and qualifications, another person possessing the same nautical skill, and this on pain of forfeiting their insurance, and being rendered liable to various highly onerous responsibilities towards the persons shipping goods on board the vessel. One of the first things that struck the mind in relation to this question, was, that if there were such a rule, so highly penal in its consequences and where cases for its application must so frequently have arisen since the introduction of marine insurance into modern Europe, the rule itself would not be found distinctly stated, and a multitude of cases, to which it had been applied adverted to. The only case that could be referred to, was the case tried before Lord Tenterden in 1827, which did not lay down any general rule, but contained only a decision founded upon the circumstances of that particular case. The voyage there, was a voyage from Madras and the Mauritius to London, the master was very ill on their arrival at the Mauritius, and continued so while there, and having had the indiscretion to sail in this state of health, and without any person on board capable of taking his place, he put back towards the Mauritius to get some other officer, and on the way back the ship was lost. In almost every point this case differed from that before the jury. The voyage differed most essentially, the voyage from the Mauritius was a voyage of from four to five months, the voyage from Jamaica to Quebec was performed in from four to five weeks. The size of the vessels, the manning and providing of them, the wages and allowances to the officers, and the quota of officers were all as different from those of a West India voyage as could be imagined, and Lord Tenterden expressly says, that "in determining what a crew competent for the voyage should be, consideration must be had of its length, and the circumstances under which it was undertaken. The East India vessel was found to have deviated, and it was lost after the deviation, and not in the course of the voyage, and that constituted another difference between that case and present one." |
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Here there was no pretence of any deviation, the captain was proved
to have been competent to the discharge of his duty, he was not
like the East India captain, incompetent from illness or from any
other cause, at the time of the sailing of the vessel, or at the
time of the loss, or at any time during the whole period of his
voyage homeward. Then, to the circumstances under which the voyage
was undertaken, to which Lord Tenterden adverted, it would be
remembered that every effort was made as well by Dixon, the master
named in the policy of insurance, as by the consignees of the
vessel, to obtain a mate of nautical skill, sufficient to take the
command of the ship in the place of the master, if necessary, but
that no such person was to be had at Jamaica. It was to be
observed too, the risk was taken by the Canada Marine Insurance
Company after the removal of Cook, and after they were made
acquainted with such removal, and on referring to the policy, it
would be seen that Dixon's name was mentioned therein as master.
The witnesses produced by the plaintiffs showed that it was not at
all unusual for vessels in the West Indies and similar trades to
proceed on voyages, as was done upon this occasion. These
witnesses were all experienced masters of vessels, most of them had
been long engaged in the trade of this port, and had deservedly
acquired the confidence of the public. They spoke not from theory,
but from actual practice, and from their testimony, it was
deducible, that the master and crew were quite competent for the
voyage, considering its length, the season of the year, and other
circumstances under which it was undertaken. To this testimony
was exposed the examination of Captain Bayfield, whose scientific
attainments and character could not be put in question. Still,
Captain Bayfield was not a ship master in the merchant service, but
in the Royal Navy, accustomed to that full complement of men and
means which the public service affords, and certainly without any
intention of disparaging Captain Bayfield, one might be permitted
to observe, that so far as the merchant service was concerned, the
opinion and experience of the gentlemen in that service, and who
had been examined in the case, entitled them to superior weight
individually, and of course still more collectively. The evidence
of Captain Bayfield was also at variance with that of Captain
Alleyn, another gentleman of known character and ability, as well
as the evidence of other witnesses produced by the defendants, all
of whom were forced to admit that under similar circumstance they
would themselves have acted precisely as was done upon the present
occasion. Mr. Black then replied to the various other objections raised by the counsel for the defense, and concluded by summing up as follows: How then stood the case? A small vessel, just over 150 tons measurement, received a cargo of West India produce at Montego Bay, to be conveyed to Quebec. She has an efficient master and a sufficient crew, with an active, industrious supercargo, and a mate who is acknowledged to have been an excellent seaman, and with no possibility of obtaining any other. In this state she proceeds on her voyage from Montego Bay to Quebec, and, the usual light-house being destroyed, is lost in a violent storm, which no nautical skill could have enabled her to resist. Upon applying to the insurers, the plaintiffs, were met with objections of various kinds, which at last are reduced to this solitary ground, that the mate's knowledge of navigation was not such as he ought to possess. On this ground alone, after receiving a large amount of premium they ask a forfeiture of several thousands pounds against the persons who have paid them their premiums, leaving the risk which they had been paid to take upon themselves, and the loss to be borne by the individual whom they insured; and they, doubtless, expected, at least hoped, that an intelligent jury, like that which he, (Mr. Black) then had the honour of addressing, would send their sanction to such an act of injustice. Mr Justice Bowen then charged the jury nearly in the following terms. After the lengthy and patient examination which the case now submitted to your decision and verdict has undergone, this being the third day of the trial, I shall endeavour to condense the observations which it is my duty to make into as small a compass as possible. The case is one of much interest, and perfectly novel in the Courts of this country; as much interest, as carried on between parties of such high respectability as the plaintiffs, and defendants, and the sum as stake large; novel, inasmuch as question relating to marine insurance could not have arisen here before the formation of the Canada Marine Insurance Company, which is but of recent date, and also novel as involving a question which has not hitherto received a formal decision in any of the British or American Courts of Judicature. |
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The action is in assumption, and
brought to recover a sum of £2,000, on a policy of insurance
effected with the Canada Marine Insurance Company, by the
plaintiffs, on the 23rd September, 1837, on goods per the barge
Industry; Dixon, master, at and from Montego Bay, in the Island of
Jamaica, to the port of Quebec, which vessel was lost in the Gulf
of Florida. To this demand the defendants, being advised that the vessel was not seaworthy when she sailed from Montego Bay, have pleaded the general issue, and you gentlemen, have now a case to decide in which much conflicting testimony has been adduced by most highly respectable and intelligent witnesses on both sides. The defendants, however, much to their credit, have shown no disposition to throw obstacles in the way of the plaintiffs; on the contrary, they have made ample admissions narrowing down the case chiefly to this enquiry: namely, whether to constitute the vessel seaworthy at the time of her departure from the Island of Jamaica, it was or was not necessary that she should have on board a mate competently skilled in the science of navigation, to navigate the vessel in safety to the port of destination. The defendants have been censured for raising this objection, and refusing to pay off the loss. I think the censure not merited, the directors of the company acting for stockholders, if they were advised and conscientiously believed, considering the nature of the voyage, and the very hazardous navigation in the Gulf of Florida, that the vessel was not seaworthy, have merely exercised a right common to all, that of having the opinion of a Court, and jury of intelligent merchants, upon the particular facts of the case. With these preliminary observations, I shall now proceed to state to you, gentlemen, what I understand to be the law of the case, and I do not hesitate to say, there is no rule of law, no decision of any of the tribunals of Europe or America to be met with, declaring in terms that under no circumstance can a vessel proceeding to sea be held seaworthy, unless she have on board at the time of her departure, a second person skilled in navigation. In every case, therefore, that arises, it becomes a mixed question of law and fact, under the peculiar circumstances in which the voyage is undertaken, the size of the vessel, the probably duration of the voyage, and above all, the intricacy and danger of navigation in particular places, whether the vessel is to be considered seaworthy or not. The definition of a marine insurance is this: a marine policy contains in general, that the underwriters cause the assured to be insured in a certain sum on ship, cargo, freight, or profits, for a certain voyage or time, against the enumerated risks, for which they confess themselves to have been paid a premium at a certain rate per cent. These are the leading and substantial parts of every policy, and in connexion with these are introduced all the provisions, stipulations, conditions, and warranties. The assured is understood, by the act of procuring the policy, to warrant that the vessel is seaworthy and in every respect for the voyage or service on which she is employed. This agreement is uniformly a part of the contract, though it is never expressed in the policy. Again. by effecting a policy, whether it be on the ship, freight or cargo, or the commissions or profits to accrue upon the cargo, the assured is always understood to warrant that the ship is seaworthy, or that the materials on which the ship is made, its construction, the qualification of the captain, the number and description of the crew, the tackle, sails and rigging, stores, equipment and outfit, generally are such as to render the ship in every respect for the voyage insured. If the ship be not such as the assured is understood, by effecting the policy, to warrant, the condition on which the liability of the underwriter depends, is forfeited, though the unseaworthiness arises from some latent defect which the assured could not have prevented or discovered. Lord Redesdale said, "Unless the assured were bound to take care that the vessel was in every respect seaworthy, the consequence would be to render those chiefly interested much more careless about the condition of the ship, and the lives of those engaged in navigating her." (3 Dow's R 60.) I shall now state to you, gentlemen, what constitutes seaworthiness, and in the general acceptation of it. The rule is, that a ship must be seaworthy at the time of her setting sail on the voyage insured. (1. Dow, 344.) For, to use the words of Lord Kenyon, if a ship be not seaworthy or in a proper condition for sailing during a part of the voyage, nothing which happens afterwards can better her original situation, or restore the underwriter's liability. (7 Tenn. Reports. 709.) The case which I am about to cite to you certainly bears some analogy to the present one, more particularly if you should be of opinion that the mate ought to have been acquainted with navigation. The plaintiffs admit it would have been prudent and highly desirable to have had a mate on board the Industry so qualified, and they have proved to you that not only Dixon, the master, but Ryan as supercargo from Quebec to Jamaica, and also the consignees of the cargo, used every diligence to procure a mate at Montego Bay, previous to the sailing of the vessel, but without effect, and that thereupon one of the crew who was an able and competent seaman, though he could neither read or write, or take an observations or work the ship's reckoning, was appointed mate. |
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The case to which I allude is that
of a ship which, insured for a voyage from Cuba to Liverpool, the
proper complement of the crew for that voyage being ten men, but
the master being unable to procure ten men at Cuba, who would
engage to go as far as Liverpool, took on board only eight men at
Cuba, who were engaged as far as Liverpool, and two who were
engaged to go part of the way, namely, as far as the Island of
Jamaica: it was held the ship was not seaworthy when she sailed
from Cuba, and that the circumstance of her having become seaworthy
after her leaving Cuba and before the loss did not entitle the
assured to recover. Not only must the hull of ship be tight,
staunch, and strong, but the vessel must be properly equipped with
sails, so that she may be enabled to keep up with her convoy, and
get to her part of destination with reasonable expedition, for a
ship ought to be rendered reasonably secure against capture as well
as against the other perils which she is likely to encounter. (1
Camp. 1.) So the ship must be provided with sufficient ground
tackle for the service in which she is engaged, and, therefore,
where the best bower anchor and the cable of the small bower anchor
were defective, the vessel was held not to be seaworthy. (5 Dow's
R. 57) The vessel must also be provided with a sufficient crew and a captain. (8 T.R.) On a long voyage there should be some person besides the captain who can take command, if he be ill. (1 Moodie & Malkin, 103) The case in which this latter dictum of Lord Tenterden is to be found, I shall have occasion to refer to presently; it is the one in which (for the first time.) such a broad position has been stated, and it may be observed, en passant. It is the single opinion of a Judge, (highly respectable, no doubt), but given at Nisi Prius, the authority of which, not having undergone discussion in banco, may yet be considered questionable. Seaworthiness depends in part upon the capacity of the captain and his skill in his profession. The Court was inclined to hold a vessel not be seaworthy, the captain of which, from ignorance of the coast, mistook Barcelona for Terragona. Mr. Justice Platt in giving the opinion of the Court said, I consider the contract to be essentially this: that the assured shall, in good faith, employ a captain of competent skill and general good character. (14 East 481.) The assured is bound to provide a competent captain, crew and ship, in the first place, but such a captain and crew being once provided, they are as much the agents and representatives of the underwriters as of the assured, in respect to everything coming within the sphere of their duty in the navigation of the ship, and although barratry be not covered by the policy, still if losses happen by the enumerated perils, in consequence of the mistake or negligence of the master and crew, the underwriters have no right to impute the fault to the assured, who, in the outset, provided a competent crew, any more than they can object to a loss that happens in consequence of some insufficiency of the ship, arising after the risk commences, a seaworthy ship having been provided at the outset; and there are certainly not wanting reasons and a number of decided cases in favour of this position. We have two decisions directly in support of such a doctrine, Lord Tenterden says, in a recent case: "We are all of opinion that underwriters are responsible for the misconduct and negligence of the captain and crew, but the owner as a condition precedent is bound to provide a crew of competent skill." (7. B. & C. 798.) So in another case, a ship fastened to the quay by a rope fell over on her side when the tide left her, in consequence of the insufficiency of the rope, and was insured thereby. Mr. Justice Bayley said: "The underwriters are liable for a loss, the proximate cause of which is one of the enumerated risks, though the remote cause may be traced in the negligence of the master and mariners." (7 B. & C. 219.) The contract of insurance properly so called, is clearly void, if the ship at the commencement of the voyage be not seaworthy, although the person who has effected the insurance is ignorant of the circumstance. (Abbott 208.) And not only must the ship and her furniture be sufficient for the voyage, but she must also be furnished with an adequate number of persons of competent skill and ability to navigate her. And for sailing down rivers, out of harbours, or through roads, &c. where either by usage or the law of the country, a pilot is required, a pilot must be taken on board. (1, Emerigon, 375 Melley, book 2, ch. 2. sec. 7. Roccus, Nos. 59 and 60. Fr. Ord. liv. du capitaine, act 8). From all that has been stated, you cannot fail to perceive, gentlemen, that in every case it is a question of construction bearing upon peculiar circumstance and the nature of the voyage to be performed, and that no where is mention to be found that the mate ought to be a navigator. The Captain and a competent crew is all that is required. The plaintiffs contend, and the great majority of their witnesses prove that in their opinion, the barge Industry was amply manned and equipped for the voyage from Montego Bay to Quebec, most of them have likewise deposed that they consider it a mere coasting voyage, as the ship need never be out of sight of land for above a day and a half, and that at any time they could make the east coast of Florida and the United States, and that with a fair wind Nova Scotia might be reached in eight days. |
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The defendants, however,
contended, and have produced no less respectable witnesses, who
depose that the voyage is a most dangerous one, infinitely more so
than to cross the Atlantic; indeed one of the plaintiffs' own
witnesses, Captain John Walter Douglas as well as Captain Bayfield
of the Royal Navy and Captains Hunter, Maxwell and Tuzo, have
expressed their opinions that for such a voyage, which they
designate as highly dangerous, a vessel with but one navigator is
not seaworthy. A very majority of the witnesses, however, swear
they think otherwise, and would prefer to have as mate, a skilful
seaman who was not a navigator to one who was skilled in navigation
but was not an able seaman. The defendants' counsel have cited a
passage or two from Bell's Commentaries on the Law of Scotland,
under the title of insurance, to this effect. "The captain and
crew must be of sufficient skill and strength for the voyage." And
again, "That a deficiency of force in the crew, or of skill in the
master, mate &c. is want of seaworthiness;", by the words 'want of
skill in the master and mate' does not necessarily imply, as has
been insisted upon, that the mate ought to be a navigator, and Bell
in his note to the latter passage refers to the case of Wedderburn
and Bell, (1 Camp. 1,) which I have now before me, and which I beg
leave to read, and from it you will find that no such position is
attempted to be maintained. The crew upon which the defendants
mainly rely for a verdict in their favour is the case before
alluded to, of Clifford and Hunter,(M. & M. 103), before Lord
Tenterden. The case was in assumption in a policy of insurance on
sugar from the Mauritius to London. The vessel had originally
sailed from Madras with a captain, two mates and a full crew of
sailors. On their arrival at the Mauritius, the captain was very
ill and continued so while there. He set sail, however, on his
voyage homeward with the same crew. The next day his illness
increased, and feeling himself incompetent to take charge of the
vessel, he enquired of the other officers whether they could manage
the voyage to England, but found no one capable to undertake it.
He, therefore, put back towards the Mauritius to get some other
officer, and on his way thither, the ship was lost by perils of the
sea. The Attorney General for the defendant said, "The return
towards the Mauritius is a deviation, and voids the policy, unless
it were necessary under the circumstances. But the only
circumstance to render it necessary was, that the captain being ill
there was no person to supply his place, that is, there was an
insufficient crew. The ship, therefore, put back, not on account
of any accidental distress, but of an original incompetence for the
voyage." Lord Tenterden, Chief Justice, said, "I think it is
rather a question for the jury, whether the ship was competent for
the voyage, than for me. A ship certainly is not fit for a voyage
unless she sails with a competent crew, a crew competent for the
voyage, considering its length, and the circumstances under which
it was undertaken. Do you think, considering the length of the
voyage from Mauritius to England, that a ship can be sufficiently
manned when, in the event of any accident to the captain, there is
no one else on board able to perform his duty? If not, the
defendant must have a verdict. The jury, which was special, found
for the defendant." In the case as now submitted to you, gentlemen,
if you are of opinion under all the circumstances of the case, that
the barge Industry was seaworthy at the time she set sail from
Montego Bay for the port of Quebec, you will necessarily find a
verdict for the plaintiffs for the entire sum demanded. On the
other hand, if you find that the vessel was not seaworthy, you will
find for the defendants; and I beg you to lay out of consideration
altogether, as to whether in the event of a verdict for the
defendants, the plaintiffs have any recourse against the owners of
the Industry, as their solvency or otherwise cannot be judicially
known to the Court or jury. Gentlemen, the case is in your hands,
and I doubt not with persons of your experience, a correct verdict
will be arrived at. Here the judge offered to read over the great mass of evidence which had been adduced, but the jury declared it was unnecessary. The jury then retired, and after an absence of five minutes, returned into Courts with a verdict for the plaintiffs, £2,000, with interest from the service of process. Case submitted by Messrs. Gillespie, Jamieson & Co. for the opinion of Chancellor Kent of New York, and Sir J. Campbell, Attorney General of England. On the 11th of June, 1837, the schooner Industry, Cook, master, of the burthen of 156 tons, sailed from Quebec, with a cargo bound to Montego Bay, in the Island of Jamaica, having besides the master, a crew of ten men including the mate, and also a supercargo. On the arrival of the schooner at Montego Bay, the supercargo discharged the master for some cause which does not appear, and had his own name endorsed upon the certificate of registry as master; but previous to the sailing of the vessel upon her return voyage to Quebec, the mate, John Dixon, was appointed master by the supercargo, and his name endorsed upon the certificate of registry as master. |
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| To supply the place of Dixon, one of the seamen was appointed mate by him. The individual so appointed was fully competent to discharge all the duties of mate depending upon seamanship, but he could not write, and was not what is called a navigator, nor was there any other person on board capable of navigating the vessel except the master. The master and supercargo had previously made diligent search and inquiry for a person possessing such qualification, and without success. Several masters of ships testify that although it is desirable that mates of vessels should possess the knowledge of navigation as well as the skill of seamen, yet that it not infrequently happens that they are without his knowledge, and that it is not essential to the discharge of their duties as mates, which they consider as requiring rather skill in seamanship than knowledge in navigation. The vessel on her return voyage was wholly lost in the Gulf of Florida, in a violent storm which she suffered there, but not from any fault of insufficiency of the mate, nor from any want of skill or knowledge of the master. She had been insured at the Canada Marine Insurance Company for £1200 on a policy made before she left Quebec, for the voyage out and back. On her return cargo there had been insured at the same office £2000 by a policy wherein Dixon, the new master's name is given, the latter insurance having been effected after the change of master, and after that change was known at Quebec. The insurance as well on the ship as on the cargo, is now resisted by the Canada Marine Insurance Company, on the grounds that the vessel was not seaworthy at the time of her sailing from Montego Bay, she not having on board a mate of competent qualifications, as is alleged, nor any person capable of taking the command of her in the event of an accident happening to disqualify the master. Your opinion requested as to the right of the insured to recover the foregoing sums insured. | ||
| OPINION. | ||
|
I have examined and considered the annexed case submitted to me
for my opinion. Both the vessel and return cargo were lost by a
peril of the sea on the return voyage, and the assured claim a
total loss on the policies effected at Quebec on the vessel and
cargo. I am opinion that the claim is well founded; in the defence set up is a breach of the implied warranty of seaworthiness, inasmuch as the mate of the vessel in return voyage was not a person of scientific skill in navigation. The master on the outward voyage was discharged by the supercargo at Montego Bay where the outward voyage terminated. It was the undoubted right of the owner, (and the supercargo was here his representative,) to change the master in his discretion, without prejudice to the policies, provided it was done in good faith and a substitute of competent skill provided. The Supreme Court of New York, in Walden, as Fireman Insurance Company, (12 Johnson R. 128,) says that the absolute right in such a case is unquestionable. In the case before me, the former mate was appointed master for the return voyage and of his competency to navigate the vessel on her return voyage from Montego Bay to Quebec there does not appear to be a question. One of the seamen was appointed mate instead of Dixon, the former mate, promoted to the rank of master, and thought that seaman was competent to discharge the duties of mate to which trust he was appointed, he had not the scientific skill in navigation ordinarily requisite for the due discharge of the duties of master. I do not think that, at least in reference to the voyage in question, and under the circumstances of the case, the skill of a master was requisite in the mate, and that the vessel cannot justly or lawfully be deemed unseaworthy for the return voyage by reason of the want of a competent captain, mate, and crew. The case of Clifford vs. Hunter, (3 Carr. and Payne 16,) before Lord Tenterden at Nisi Prius, is the only authority that I am aware of, for the broad position that a ship is not seaworthy for a voyage from India to England with no other person on board capable of commanding, but the captain. I apprehend that such a general and unqualified doctrine was not previously to be found in the English, the Continental, or the American Law of insurance. The code of insurance law is essentially the same everywhere, and is a branch of the international law of all maritime nations. Without questioning the high authority of the case as far as the distinguished and admirable character of the Judge who pronounced it is concerned, it is to be observed that it was a Nisi Prius decision, very briefly reported, and never discussed in banco, and that after all the point was declared to be not a question of law but a question of fact for a jury. This takes away all the stubbornness of the case, and it is liable to be controlled and modified or set aside by circumstance. It was the case of an East India ship coming from Madras in India to Europe, and it has a very feeble application to the present case of a small schooner navigating along the American coast from Jamaica to the St. Lawrence, over a sea alive with the coasting trade, and with light-houses, pilot and harbours in abundance along the whole extend of the continent adjacent to the track of the voyage. |
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| To supply the place of Dixon, one of the seamen was appointed mate by him. The individual so appointed was fully competent to discharge all the duties of mate depending upon seamanship, but he could not write, and was not what is called a navigator, nor was there any other person on board capable of navigating the vessel except the master. The master and supercargo had previously made diligent search and inquiry for a person possessing such qualification, and without success. Several masters of ships testify that although it is desirable that mates of vessels should possess the knowledge of navigation as well as the skill of seamen, yet that it not infrequently happens that they are without his knowledge, and that it is not essential to the discharge of their duties as mates, which they consider as requiring rather skill in seamanship than knowledge in navigation. The vessel on her return voyage was wholly lost in the Gulf of Florida, in a violent storm which she suffered there, but not from any fault of insufficiency of the mate, nor from any want of skill or knowledge of the master. She had been insured at the Canada Marine Insurance Company for £1200 on a policy made before she left Quebec, for the voyage out and back. On her return cargo there had been insured at the same office £2000 by a policy wherein Dixon, the new master's name is given, the latter insurance having been effected after the change of master, and after that change was known at Quebec. The insurance as well on the ship as on the cargo, is now resisted by the Canada Marine Insurance Company, on the grounds that the vessel was not seaworthy at the time of her sailing from Montego Bay, she not having on board a mate of competent qualifications, as is alleged, nor any person capable of taking the command of her in the event of an accident happening to disqualify the master. Your opinion requested as to the right of the insured to recover the foregoing sums insured. | ||
| OPINION. | ||
|
I have examined and considered the annexed case submitted to me
for my opinion. Both the vessel and return cargo were lost by a
peril of the sea on the return voyage, and the assured claim a
total loss on the policies effected at Quebec on the vessel and
cargo. I am opinion that the claim is well founded; in the defence set up is a breach of the implied warranty of seaworthiness, inasmuch as the mate of the vessel in return voyage was not a person of scientific skill in navigation. The master on the outward voyage was discharged by the supercargo at Montego Bay where the outward voyage terminated. It was the undoubted right of the owner, (and the supercargo was here his representative,) to change the master in his discretion, without prejudice to the policies, provided it was done in good faith and a substitute of competent skill provided. The Supreme Court of New York, in Walden, as Fireman Insurance Company, (12 Johnson R. 128,) says that the absolute right in such a case is unquestionable. In the case before me, the former mate was appointed master for the return voyage and of his competency to navigate the vessel on her return voyage from Montego Bay to Quebec there does not appear to be a question. One of the seamen was appointed mate instead of Dixon, the former mate, promoted to the rank of master, and thought that seaman was competent to discharge the duties of mate to which trust he was appointed, he had not the scientific skill in navigation ordinarily requisite for the due discharge of the duties of master. I do not think that, at least in reference to the voyage in question, and under the circumstances of the case, the skill of a master was requisite in the mate, and that the vessel cannot justly or lawfully be deemed unseaworthy for the return voyage by reason of the want of a competent captain, mate, and crew. The case of Clifford vs. Hunter, (3 Carr. and Payne 16,) before Lord Tenterden at Nisi Prius, is the only authority that I am aware of, for the broad position that a ship is not seaworthy for a voyage from India to England with no other person on board capable of commanding, but the captain. I apprehend that such a general and unqualified doctrine was not previously to be found in the English, the Continental, or the American Law of insurance. The code of insurance law is essentially the same everywhere, and is a branch of the international law of all maritime nations. Without questioning the high authority of the case as far as the distinguished and admirable character of the Judge who pronounced it is concerned, it is to be observed that it was a Nisi Prius decision, very briefly reported, and never discussed in banco, and that after all the point was declared to be not a question of law but a question of fact for a jury. This takes away all the stubbornness of the case, and it is liable to be controlled and modified or set aside by circumstance. It was the case of an East India ship coming from Madras in India to Europe, and it has a very feeble application to the present case of a small schooner navigating along the American coast from Jamaica to the St. Lawrence, over a sea alive with the coasting trade, and with light-houses, pilot and harbours in abundance along the whole extend of the continent adjacent to the track of the voyage. |
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It was shown by proof that not
more than one quarter of the masters of vessels of the size of the
schooner Lodge, and engaged in that trade understood the science of
navigation and that this fact was generally known in New York, and
it was proved to the satisfaction of the Court and Jury upon the
trial that the master was competent for the voyage though he was
not a scientific navigator, and his competency as master in
reference to a voyage was submitted at the circuit or Nisi Prius
court in the city of New York to a Jury, & a verdict found for the
plaintiff. On motion for a new trial before the Supreme Court, the
question was ably discussed by a first commercial counsel in the
city and the verdict sustained.
I presume that there is not any material difference in the usage
and customs of commerce between voyages from Quebec and from St.
Johns, Boston, or New York to the southern states, and the West
Indies, and back again; that generally speaking a similar spirit of
economy and enterprise prevails in the outfits as to the competency
of the master and crew in science and numbers. The case before me states that it was testified by several masters of ships not to be an infrequent case that mates of vessels were without the knowledge of navigation, and that this was not deemed essential to the discharge of their duties as mates. This fact is of decisive moment in the case and shows that the usages and sense of the mercantile community was the same at Quebec and New York. The schooner Industry in the present case was extremely well equipped for a vessel of her tonnage and character, she had a competent master and mate and a crew of ten men for the return voyage, and to deny the rights of recovery on the ground that the mate did not unite with his competent qualifications as mate, the superior qualification of a master, when he was only called to act as mate and could not act in any higher character, would appear to me to be repugnant to the contract, and to justice. The original master was discharged by the supercargo at Montego Bay, and we are to presume for sufficient cause and certainly in good faith, and the case states that the new master (Dixon), and the supercargo made diligent search and inquiry, but without success, for a new mate competent to navigate, and the seaman that was taken for that purpose from the necessity was fully competent to act as mate though not as master. When all is done to supply any deficiency in the course of the voyage that due diligence dictates, it is all that is required therein Phillips vs Headlam (2 Barm & Adolph. 380) the ship was insured from Liverpool to Sierra Leone and at the mouth of that river there was a regular establishment of pilots. The vessel arrived off the harbour at 3 P.M., and hoisted the signal for a pilot, none came, and at 10 o'clock P.M., the captain judged it proper to attempt to enter without one, and the ship took ground and was lost. It was left to the jury to determine whether the master did what a prudent man ought to have done under the circumstances, and a verdict was found for the assured. On the motion for a new trial, the K.B. held that the captain, being a person of competent skill and having used diligence in seeking a pilot and exercising his discretion in good faith, he did all that could be required by law, even if he acted erroneously, and the insurer was liable for the loss. The doctrine of that case is strongly applicable here to the conduct of the supercargo in his selection of the new mate at Montego Bay, and I have no doubt that under the circumstances of the case before me the insured in the policies on the vessel and on the cargo are entitled to recover. The construction of the warranty of seaworthiness is understood to be the same on ship, freight and cargo. (Tayfor vs. Sewell, 3 Mars, R. 331, Merchants Ins. Co. vs. Clapp, 11 Pickerings, R. 56). |
| James Kent. | ||||
| New York, May 7th, 1839. |
| --------- | ||
Opinion. | ||
| "This resolves itself into a question of fact for a jury rather than a question of law. I conjecture that a jury would find the underwriters liable if it should appear that in such a vessel (a schooner of 156 tons), the master was well qualified to take observations and make nautical calculations, although the mate could not do more than discharge the duties belonging to good seamanship. The vessel could hardly be considered unseaworthy because the contingency of the master being disabled during the voyage was not provided for. |
| L. Campbell. | ||||
| Norwich Assizes. | ||||
| August 1st, 1839. | ||||
| G.R. Bossé©2000-03. | Posted: Jan. 29th, 2000. |
Updated: July 15, 2003. |
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