tutes seawor Clifford v. 1 Mood, & Malk, 103. 3 C. & P. 16. questioned by This decision Mr. Chancellor dence, asked the jury, "whether they thought, considering the What constilength of the voyage from Mauritius to England, that a ship could thiness. be sufficiently manned, when, in the event of any accident to the captain, there was no one else on board able to perform his duties." Hunter, The jury, which was special, found for the underwriters. (n) The effect of this decision is, that no ship insured from the East Indies to England can be seaworthy, unless she have on board at the time of sailing a mate competent to take the command of the ship, in case of the death or sickness of the master. Mr. Chancellor Kent questions the soundness of this doctrine in any case, and observes, that the warranty of seaworthiness "would seem to imply no more, than that the assured must have a sound and well-equipped vessel with reference to the voyage, and have on board a competent person as master, a competent person as mate, and a competent crew as seamen;" he also cites American cases in which Lord Tenterden's doctrine has been discarded, as far as regards the American coasting and West India trade. (0) Lord Tenterden's rule would undoubtedly operate with a good deal of harshness, if enforced with regard to short voyages, or vessels of small burden, and it seems better to confine it to the case of East Indian voyages, or others of at least equal length and duration. Secondly, as to the crew. The ship when she sails must be manned by a crew competent as seamen, and sufficient to navigate her on the voyage insured. "The owner," says Lord Tenterden, "as a condition precedent is bound to provide a crew of competent skill.” (p) "The crew," says Lord Ellenborough, " must be adequate to discharge the usual duties, and to meet the usual dangers to which she is exposed." (q) It must, at all events, be confined to long voyages. 2. As to the crew. The ship is not seaworthy unless the crew were originally competent in skill and numbers. If the crew be originally sufficient, i. e. if they be suf- If originally (n) Clifford v. Hunter, 1 Mood. & Malk. 103. S. C. Rep. in 3 C. & P. 16. (0) Kent's Comm., vol. ii. p. 287. note (e), ed. 1844. See also the cases cited in 1 Phillips on Ins. 312. sufficient, the implied war (p) Shore v. Bentall, 7 B. & Cr. ranty is satisfied; there is none that they 798. (9) In Hunter v. Potts, Selw. N.Pr. shall continue 1031. 9th ed. SO What constitutes seaworthiness. If the ship, when the policy attaches, have been some time on a distant voyage, she will be seaworthy with a if adequate to her then risk. She must, how ever, be pro perly manned for the whole voyage when she sails. If a ship be in ficient when the ship sailed on the voyage insured, the implied warranty is fully satisfied; the assured does not contract that the ship shall continue to be properly manned throughout the voyage, nor is he responsible for any subsequent negligence or misconduct on the part of the crew. (r) If, at the time the policy attaches, the ship has been some time engaged on a distant voyage, although the numbers of the crew may have been greatly reduced by death or descrtion, yet the implied warranty will be satisfied if they are at that time sufficient for navigating the ship home, or for perreduced crew, forming any of the purposes of the voyage insured. (s) Is is, however, indispensably necessary that the ship should be properly manned for the voyage at the time she sails on it; if not, the underwriters are not liable. Thus, a policy was effected on ship and goods on an homeward voyage “at and from Cuba to Liverpool," without any leave given to touch and stay in the original policy; the proper complement for such a voyage is ten seamen, but the captain having lost some of his outward crew by sickness and desertion at Cuba, and finding it impossible there to engage ten men for Livermust be manned pool, sailed from Cuba with only eight men engaged for Liverpool, and two for Montego Bay (Jamaica), at which place he touched, landed the two men, and, having procured others to supply their place, proceeded on his voyage to Liverpool. The court held that the ship was not seaworthy when she sailed from Cuba for a voyage to Liverpool, as she ought then to have had on board a full complement of men engaged for the whole voyage. (t) sured from A. to B., with out liberty to touch at any intermediate port, the ship, when she sails, with a full crew, all of whom are engaged for the whole voyage from A to B. Forshaw v. The result of this case is, that every ship, when she sails on the voyage insured, at all events when no liberty is reserved to touch or stay in the course of it, must have a crew, not only sufficient in number for the voyage, but also consisting of men, all of whom are engaged for the whole voyage.(u) (r) Busk v. Royal Exch. Comp., 2 B. & Ald. 73. Walker v. Maitland, 5 B. & Ald. 175. Bishop v. Pentland, 7 B. & Cr. 214. Houldsworth v. Wise, ibid. 794. Shore v. Bentall, ibid. 798. Dixon v. Sadler, 5 Mees. & Wels. 405. S. C. in error, 8 Mees, & Wels. 895. 30. (s) Hucks v. Thornton, Holt's N.P. (t) Forshaw v. Chabert, 3 Brod. & Bingh. 158. (u) The judgment of the court in this case mainly proceeded on the ground that there had been a material tutes seawor Thirdly, as to the pilot. Generally speaking no ship is sea- What constiworthy at the outset of the risk unless she have on board a thiness. pilot, where requisite by law or usage for her safe navigation; 5. As to the pilot. a difficulty, however, has arisen in determining whether the ship, in order to be seaworthy, must have a pilot on board at every intermediate stage of the voyage, where an establishment of pilots is kept, and usage requires one to be taken on board, either in entering or coming out of port. (v) cases. The law seems to be that, supposing the ship to have been Result of the seaworthy when she sailed, and provided with a competent master and crew, the underwriter is liable for all loss proximately caused by the perils of the sea, although it may have been remotely occasioned by the negligence or misconduct of the master in entering, without a pilot, an intermediate port where pilots are kept, and usage requires one to be taken on board for that purpose (w); à fortiori, he will be so liable, if the master on arriving off the port have done his best to procure a pilot to come off, and has only entered the harbour without one when it became the wisest course for him, as a prudent and skilful man, so to do. (x) If not only usage, but the positive regulations of an act of parliament, require a pilot to be taken on board on entering either an intermediate or an home port, then it is unseaworthiness to enter such port without one. (y) And in all cases where it is necessary, either by law or usage, for the master to have a pilot on board in going out of an intermediate port, or in clearing from his outport homewards, it will be unseaworthiness not to take one, for it is in such cases always in his power to do so. (z) SECT. III. Of the Proof of Unseaworthiness. § 255. Where a ship becomes so leaky or disabled as to be of the proof of unable to proceed on her voyage, soon after sailing on it, and unseaworthi ness. unseaworthi ness. Of the proof of this cannot be ascribed to any violent storm, or extraordinary peril of the seas, the fair and natural presumption is, that it arose from causes existing before her setting out on her comes disabled voyage, and consequently that she was not seaworthy when she sailed. Where ship be soon after sailing, without any visibly ade quate cause in the perils to which she has been exposed, tion is, that she the presump sailed unseaworthy. When the In such cases, therefore, it is incumbent on the assured to show that, at the time of her departure, she was in fact seaworthy, and that her inability has arisen from causes subsequent to the commencement of the voyage. (a) If, on the other hand, the loss takes place long after sailing, or under such circumstances that it may fairly be attributed, disability does primâ facie, to the violent and immediate action of the winds and waves, or other perils insured against, then, if the underwriters mean to rely on the defence that the ship was unseaworthy when she sailed, the onus probandi will be on them, some peril suffi- and they will have to make out the fact by satisfactory not take place till late in the voyage, and may, primá facie, seem to be the result of cient to account the for it, Even though, shortly after sailing, the ship encounters bad weather, yet if, evidence. Thus, if a ship, a day or two after sailing, become leaky, and subsequently founder, without any storm, or other visible or adequate cause to produce this effect, the presumption is that she was not seaworthy when she sailed, and it lies on the assured to prove that she was. (b) Even though shortly after sailing she may have encountered boisterous weather, bad and dangerous seas, stiff breezes, or even severe gales, yet, if she become leaky, and forced to on examination, run for a port of distress, and on being examined there is found to be in a state of decay or damage which cannot fairly be accounted for by the immediate operation of the perils to which she has been exposed, the inference will still be that she was unseaworthy when she sailed. (c) it appears that she is in a state Thus, in the case of the Midsummer Blossom, insured on a homeward voyage "at and from Honduras to London," it presumption is, appeared that the ship, which was thirty-five years old at the exposed, the that she sailed unseaworthy. (a) Per Lord Eldon in Watson v. Clark, 1 Dow, 344. Munro v. Vandam, Park on Ins. 469. 8th ed. (b) Munro v. Vandam, Park on Ins. 469. 8th ed. (c) Watson v. Clark, 1 Dow, 336. Parker v. Potts, 3 Dow, 23. Douglas v. Scougall, 4 Dow, 269. unseaworthi ness. Blossom. Watson v. Clark, 1 Dow, 336. time of loss, had taken in a cargo of logwood in the Belize Of the proof of river at Honduras, and sailed thence on the voyage insured on the 27th of October; at that time she was not making Case of the more than twelve inches water per diem, but three days after- Midsummer wards, having encountered fresh gales and squally weather, she was found to be making ten inches of water per hour, and the weather continuing squally, with a heavy sea, her leakiness gradually increased till the 6th of November, when, as the ship was making forty inches water per hour, the captain bore up for the Belize, but before he could make it. the ship struck on a reef and was lost. The assured contended that the leaky state of the vessel, which forced the captain to put back, was owing to the weather he had encountered since sailing; but Lord Eldon held that the weather encountered, viz., fresh gales and squally weather, could not account for the leakiness of the ship, and as no adequate cause appeared for the inability of the ship to perform the voyage, arising after she had sailed from Honduras, the presumption was that she was unseaworthy when she sailed. Lord Redesdale thought that, as the vessel, without any apparent cause of injury, was obliged to put back, being incapable of proceeding on her voyage, there was not only presumptive, but direct, evidence that she was not seaworthy; for if, upon the statement of facts, it appeared that there was neither bad weather, nor any thing else to injure the vessel after her leaving port, and yet it was found she was in a bad condition, and continued increasing in that badness, then it was clear that she could not have been seaworthy when the voyage commenced. (d) 23. So, where a ship, to all outward appearance seaworthy, Parker r. Potts, the night after sailing fell in with a gale which strained her 3 Dow. Rep. so much that she made 10 inches water in the hour, and the leakiness increased for about a week after, when, as she was then making 3 feet water per hour, the captain put back in distress, Lord Eldon held this presumptive proof that the (d) Watson v. Clark, 1 Dow's Rep. 336. |