The master has an implied authority both from the under writer and assured to do all the best he can for the benefit of all concerned, and the under writer is bound by his acts. The captain is agent for the freighter as well as the owner. land in the February following, and gave the plaintiff notice of what had been done, which was the first notice he received of it; and the plaintiff immediately claimed for a total loss, and offered to abandon. Lord Mansfield, at the trial, told the jury, that if they were satisfied that the captain had done what was best for the benefit of all concerned, they must find as for a total loss, which they accordingly did. Upon a motion for a new trial, the unanimous opinion of the Court was delivered by Lord Mansfield, who said, in the course of the judgment, "when the assured first had notice, and offered to abandon (which was when the captain came to England), and when the ship was brought to New York, it was still a total loss. The only answer the defendant makes, or can make to this is, that the loss was total indeed, but that the captain made it so by his improper conduct; for that on taking possession of the ship the loss became partial, and that he ought to have pursued the voyage. But is this defence true? The captain, when he came to New York, had no express order, but he had an implied authority, from both sides, to do what was fit and right to be done, as neither of them had agents in the place; and whatever it was right for him to have done, if it had been his own ship and cargo, the underwriters must answer for the consequences of it, because this was within his contract of indemnity." In the case of Shipton v. Thornton (a), Lord Denman says, "that it must never be forgotten, that the master acts in a double capacity-as agent to the owners as to the ship and freight, and agent to the merchant as to the goods: these interests may sometimes conflict with each other, and from that circumstance may have arisen the difficulty of defining the master's duty, under all circumstances, in any but very general terms. The case now put supposes an inability to complete the contract in its terms in another bottom, and therefore the owner's right to tranship will be at an end; but still, all circumstances considered, it may be greatly for the (a) 9 A. & E. 314. benefit of the freighter that the goods should be forwarded to their destination, even at an increased rate of freight; and, if so, it will be the duty of the master, as his agent, to do so. In such a case, the freighter will be bound by the act of his agent, and liable for the increased freight." It is likewise required by law (a) that the master should take on board a pilot at those points in the voyage when the law bids him. Pilots are established at different places in England, by the authority of various charters and acts of Parliament; and, in general, the master of a ship engaged in a foreign trade must place the ship under the charge of such a pilot, both in the outward and homeward voyage, within the limits of every such establishment (b). The case of lingsworth is Law v. Hol the more rities. There is a case of Law v. Hollingsworth (c), of which only a brief notice will be requisite, inasmuch as the decision in that case is considered to be overruled by more modern overruled by authorities; the reader may, however, refer to the full report modern authoof the case, and judge for himself. The facts were simply these:-A captain of a vessel entering the Thames took on board a pilot at Orfordness, who again quitted her at Halfway Reach; after which, and before she came to her moorings higher up the river, the accident happened which occasioned the loss. The captain, also, had left the vessel before the time of the actual loss. It further appeared that the pilot was not properly qualified at the time, according to the provisions of 5 Geo. 2, c. 20, for the regulations of pilots on the River Thames; but it did not appear that this fact was known to the captain; and the pilot had since received his regular qualification. In the case of Dixon v. Sadler (d), which we shall have to refer to at length in the course of this treatise, Parke, B., (a) See the case of "The Protector," 1 Dr. W. Rob. Ad. Rep. N. S. 45; and see the provisions of the General Pilot Act, 6 Geo. 4, c. 125; also the cases of M'Intosh v. Slade, 6 B. & C. 657; Bennet v. Moita, 7 Taunt. 258; Lucey v Ingram, 6 M. & W. 302; Ritchie v. Bous- (b) See Abbott on Shipping, 6th (c) 7 T. R. 160. In Dixon v. In the same case, in error, who delivered the judgment of that case, after deliberation by the Court of Exchequer, says (on the subject of the case of Law v. Hollingsworth):-" The only case which appears to be at variance with the principle now laid down is the case of Law v. Hollingsworth, in which the fact of the pilot who had been taken on board for the navigation of the River Thames having quitted it before he ought (under what circumstances is not distinctly stated), appears to have been held to have vitiated the policy. In this respect we cannot help thinking that the case must be considered as having been overruled by the modern authorities above alluded to. The great principle established by the more recent decisions is, that if the vessel's crew and equipments be originally sufficient the assured has done all he contracted to do, and is not responsible for the subsequent deficiency occasioned by any neglect or misconduct of the master or crew, or of the pilot as a temporary master. And this principle prevents many nice and difficult inquiries, and causes a more complete indemnity to the assured, which is the object of the contract of insurance." When this case of Dixon v. Sadler was brought into a Court of Error (a), Lord Chief Justice Tindal, who delivered by Tindal, C.J. the judgment, says, at the conclusion of it, "But, without entering into a further discussion of the principle, we think, upon the later authorities, the rule is established, that there is no implied warranty, on the part of the assured, for the continuance of the seaworthiness of the vessel, or for the performance of their duty by the master and crew, during the whole course of the voyage. The case of Law v. Hollingsworth must be allowed to bear against the principle so laid down by those later authorities. The ground of decision in that case appears to have been, that there was no pilot on board during the time the ship was sailing up the Thames, which was required by 5 Geo. 2, and that there was an implied duty on the part of the assured that there should be such (a) 8 M. & W. 895. a person. This, at least, appears to be the ground of Lord Kenyon's judgment, although, certainly, the other two Judges seemed to have considered that it was a loss arising from an act of gross negligence. The decision may be maintainable on the ground of an implied warranty to observe the positive requisitions of an act of Parliament; but if it is to be taken as an authority, that the implied warranty of the assured extends to acts of negligence on the part of the master and crew throughout the voyage, we think it cannot be supported against the weight of the later authorities." "This case of Law v. Hollingsworth, appears not to apply to cases of the neglect of the master or pilot, if one has come on board, and the provisions of the General Pilot Act on this subject, seem to have done little more than to have confirmed and strengthened this principle of law. The pilot, when in charge of the vessel, stands in the place of the master; and the underwriters are no more discharged by his neglect than they are by the neglect of the master. In the case of Carruthers v. Sydebotham (a), it was held, that where the ship was stranded by the neglect and fault of the pilot, the underwriters were not discharged: and the same principle one would naturally suppose would apply to the case where the pilot, having been once on board, leaves the ship sooner than he ought to do, either wilfully or by neglect. Now, bearing the provisions of the General Pilot Act in mind, let us see what would be the effect on the contract of insurance, if in any case where a pilot is required by law, or by the practice of navigation in any particular place, to take charge of the vessel, and no pilot can be obtained or ever comes on board. There can be no doubt that it is the duty of the master to use all possible endeavour to comply with this rule; and when he is leaving a port and has the means in his power, it would seem to be imperative on him not to sail without one (b). But what is he to do if in approaching a port, he finds it impossible, either on account of the violence of the sea, Phillips v. Headlam, 2 B. & Ad. (a) 4 M. & S. 77. 383. or any other insurmountable cause to procure one? Why in such a case the master must act to the best of his judgment— and supposing him to be a captain of competent skill, the case will fall within the plea of necessity, which in extremities in matters relating to insurances have always been allowed. And by the express provisions of the act above referred to, it is declared, that the underwriters shall not be discharged by reason of no pilot being on board, unless it shall be proved that the want of a pilot, or of a duly qualified pilot, shall have arisen from any refusal, or to take a pilot, or a duly qualified pilot on board, or for the wilful neglect of the master of such a vessel, in not heaving to, or using all practicable means consistently with the safety of such ship or vessel, for the purpose of taking on board any pilot, who shall be ready and offer to take charge of such ship or vessel'” (a). And this enactment is in direct conformity with the principles of law laid down by Lord Tenterden, in the case of Phillips v. Headlam (b), which was an action upon a policy of assurance, "at and from Liverpool to the ship's port or ports of discharge in Sierra Leone, and during her stay there, and from thence to her port or ports of discharge in the United Kingdom.” At the trial before Bayley, J., at the Summer Assizes for the county of Lancaster, 1829, it appeared that the ship sailed on the voyage insured, and arrived at three o'clock in the evening of the 30th January, off the river Sierra Leone, where there is a regular establishment of pilots; that the captain then hoisted a signal for a pilot, and at ten o'clock no pilot having come on board, the captain attempted to enter the river, and in doing so, the vessel struck the ground and was lost. It was proved that it was usual for vessels either coming out or going into the river, to take a pilot, and the defendant's evidence went to show, that it was not necessary or proper that the captain should enter the river without one. Bayley, J., told the jury to find for the plaintiff, if they thought that the captain in entering the harbour without a |