
    Draper v. Commercial Insurance Company.
    
      Seaworthiness.—Competent Master.
    
    If a vessel have, in fact, a competent sailing-master, she is not unseaworthy, though the registered master have no nautical skill, and act only as supercargo; the act of congress, in relation to the registry of vessels, has no effect upon the contract of insurance, in that respect.
    Draper v. Commercial Insurance Go., 5 Duer 334, reversed.
    Appeal from the Superior Court of the city of New York, where there was a verdict and judgment in favor of the defendant. (Reported below, 5 Duer 234.)
    This was an action upon a policy of marine insurance, for $9000, upon the steamer Albatross, on a voyage at and from New York to Vera Cruz and back. The complaint averred a total loss, in the usual form, by the perils of the séa. The defence was, that, at the commencement of the voyage, the vessel was unseaworthy, from the incompetency of the master.
    On the trial, it appeared, that prior to the 10th March 1853, the Albatross, a vessel of American build, but sailing under the British flag, had been commanded by one McNeil, a skilful and experienced seaman and navigator, whose qualification as such was not disputed. On her return to New York from a voyage to Vera Cruz, under the command of McNeil, she became the property of the plaintiff, and her flag was changed. "As McNeil was a British subject, when she was registered at the custom-house, on the 30fch March 1853, Alexander H. Greene, a citizen of the United States, was named as her master. Greene had no nautical knowledge, and on the voyage in question, simply acted as supercargo; the vessel, by written instructions to him from the plaintiff, being placed under the exclusive control of McNeil, as sailing-master. The vessel sailed for Vera Cruz on the 1st April 1853, and on the 19th, was wrecked upon a coral reef, about sixty miles from her port of destination. The evidence is fully stated in the opinion of the court.
    The judge charged the jury that, if Greene, the registered master, had no nautical skill or experience, the vessel was not deemed seaworthy, and' the defendant was entitled to their verdict; to which an exception was taken; and on argument upon the exception, at general term, judgment having been entered upon the verdict, in favor of the defendant, the plaintiff took this appeal.
    
      Evarts, for the appellant.
    
      Cutting, for the respondent.
   Welles, J.

In a marine insurance, the as- * sured is understood to warrant that, at the commencement of the voyage, the ship is seaworthy. Among other things necessary to constitute seaworthiness, it is requisite, that the ship should have a competent master and officers, according to the service upon which she is employed. But the law in relation to seaworthiness does not require that the master, or any of the subordinate officers or crew, should be a citizen or citizens of the United States, nor that the ship itself should be registered in pursuance of the acts of congress. I am not aware of any law which prohibits a ship-owner from sailing his vessel from any port in the United States to any other in the world, without a register. An insurance upon the vessel or cargo for any such voyage would be valid, if there ivas no objection but its non-registry. The object of the register is to secure certain advantages to the ship, its owner and company, which would be lost, by neglecting it; but there is no law requiring it to be done, and no penalty is incurred by such neglect, excepting the loss of the advantages attendant upon the registry.

It is, nevertheless, of the first importance to the insurer and assured, that the ship be sufficiently officered and manned; and as the insurer cannot control the owner in that respect, the latter undertakes that it shall be done; not indeed in terms, but the law attaches the undertaking, by implication, to the contract of insurance, as an indispensable quality of seaworthiness.

That the ship, when she commences her voyage, shall be put in charge and under the command of a person of competent nautical skill and experience as sailing-master, is a condition precedent to any liability of the insurer, growing out of the contract of insurance. It is no part of the contract, however, that the name of the acting master should appear in the register of the ship, in case a register is effected, nor that the actual sailing-master should be a citizen of the United States. If the owner chooses to register the ship in the name of a person, as master, Avho has no nautical skill or experience, Avhen, in fact, he never intended he should act as master, or take any pari in navigating the ship, or any control of the subordinate ^officers or mariners, it is a matter with which the insurer has nothing to do; provided always the ship is actually put under the command of a competent master.

The decision of the superior court in this case was placed mainly upon the ground, that Greene is to be regarded' as master of the Albatross upon the voyage in question; and that although the vessel was in fact navigated by McNeil, yet there was an absence of authority in him to enforce the discipline and secure the obedience to his commands among the subordinate" officers and crew, which an emergency, involving the safety of the vessel or cargo, might render indispensable. Assuming such absence of authority in McNeil, I am not prepared to deny tl>e conclusion to which the learned court has arrived; but I cannot assent to the correctness of the premises from which the conclusion is derived. The owner most assuredly had the right to appoint and employ whomsover he chose to command the vessel and act as captain or master, in the full sense which those terms import, and to be at the head of the subordinate officers and crew, clothed with all the authority which such position implies.

In this case, the vessel was registered in the name of Greene as master, who was confessedly a mere landsman, with no nautical skill or experience whatever. The evidence shows that he, in fact, took no part in navigating the vessel, but that he entered upon the voyage, and continued, until the ship was lost, in the character of purser and agent of the owner, and absolutely subject to McNeil, the master in fact, in all matters pertaining to the navigation and government of the vessel. He testified, that he was employed by the plaintiff, the owner of the Albatross, as purser on board of her on her last trip from New York to Y era Cruz, on which trip she was lost; that his duties were to take charge of the money affairs of the ship, to collect the bills for freight and passage, and to pay bills on account of the ship; that McNeil had charge of the navigation of the ship; that the first he heard of his being in the ship’s register as a captain, was three or four hours before the advertised hour for sailing; that, V03raSe> h® took no part *in the command or control of the vessel; that McNeil acted as master in the navigation and discipline of the vessel; that he (Greene) was not known or called captain on hoard of the vessel; that McNeil was the only person on board that knew that he, the witness, was named in the register; that he had written instructions from the plaintiff as to his duties on board the vessel, in the shape of a letter from the plaintiff to the witness, which letter was in his trunk on the Albatross when she was lost, and went down with it; that the instructions were, that he, the witness, was to take charge of the financial affairs of the ship; and that McNeil was to have the whole charge of the navigation of the ship.

McNeil testified, that Greene, from the time they left New York, until they struck, did nothing about the ship any more than a passenger; that he was unwell the whole time, and a part of the time confined to his bed; that he, the witness, sailed the vessel, under Greene’s direction, that is, wherever Greene told him to take the ship he took it, and remained as long as he told him; that Greene acted on board as the owner or supercargo of the ship; that he had no control, and attempted none, as to the sailing of the ship or its management at sea. It appears also by the evidence of McNeil, that on the occasion of the disaster, he exercised the entire command of the vessel and crew, and that Greene gave no directions, that he was just like any of the passengers, and that he (McNeil) did not consult with him as to what should be done. There is nothing in the evidence to controvert these facts, as testified to by Greene and McNeil; and the same facts are strongly corroborated by other evidence.

The court .charged the jury that, if they should find ' that Greene was not possessed, of nautical skill and experience, the defendant ivas entitled to their verdict, although the plaintiff may have engaged for the voyage, and placed onboard, McNeil, and he was possessed of the requisite skill and experience, and was fully competent for that purpose. This was equivalent, under the evidence, to a direction to the jury to ""find for the defendant, as no one pretended or claimed that Greene had any such skill or experience.

The case, then, is one where the owner placed the ship in the charge and command of a competent sailing-master, clothed with all the authority incidental to that position, and who accordingly took possession of the ship for the voyage, and exercised all the authority throughout the voyage, as long as it lasted, as such master; that the ship was registered in the name of another person as master, who possessed no nautical skill or experience, and who never possessed any authority whatever as such master, but who “embarked upon the voyage in the character of purser and supercargo, with no authority but such as appertained to such character, and with instructions from the owner to treat and regard the other as the actual master and commander of the ship during the voyage.

The fact that the Albatross was registered in the name of Greene, as master, is only to be regarded as evidence .tending to prove that he was in fact such master. It is not conclusive of his relation to the ship, but at most only prima facie, and liable to be overcome by other evidence. The evidence, taken altogether, shows clearly and indisputably, that it was never intended, either by the plaintiff or Greene, that the latter should have or exercise the least particle of authority in the ship, as sailing-master, nor any authority whatsoever, excepting such as was connected with his position of purser and supercargo. Any other hypothesis is simply absurd; no one but a madman would intrust the navigation of a vessel, on such a voyage, to such a man as Greene admits himself to have been.

I am constrained, therefore, to the conclusion, that, as the ship was put in the possession of a competent master, and the voyage prosecuted by him as such, the fact that the name of another person, who had not the requisite skill or experience for that purpose, was put in the register as master, does not affect the question of seaworthiness of the ship. Suppose, in this case, Greene had not gone on the voyage at all; it is not perceived, how that fact could affect the question under consideration. Most c-t-earty’ th® owner might have engaged ^another person to go as master; and that is substantially this case. Greene did not go as master, but did go in another capacity, which, for the purposes of the present question, is the same as if he had not gone at all. Or, suppose, when the plaintiff procured the vessel to be registered, he believed Greene to be in'all respects competent and qualified to act as master, but afterwards, and . before the vessel sailed, discovered he was incompetent, and thereupon McNeil was engaged and went as master; I apprehend, it could not be denied, in suóh case, that the latter should be regarded, to all intents and purposes, the master and commander, as effectually as if his • name had been in the register as master.

The policy in this case contemplates the right of the owner to change the master before the voyage should commence. It describes the vessel insured as follows: “ Upon the body, tackle, apparel and other furniture of the good steamer called the Albatross, whereof.... . . . . is at present master, or whoever else shall go for master in the said vessel,” &c. Now, McNeil went for master, and he was confessedly competent. If the defendant intended to insist that no one should go as master on the voyage, except a citizen of the United States, and hi ■name put in the register of the ship as such it should have -taken the precaution to have had such a provision in the policy.

For the foregoing reasons, the judgment of the superior court should be reversed, and a new trial ordered.

Comstock, C. J.

(Dissenting)—Greene was master of the steamer Albatross, for every legal intendment and purpose. He was so described in the register; in that character, he signed the shipping articles and the bills of lading; the vessel was also cleared in his name as master. He had, it is true, a letter of instructions from the owner, according to which McNeil, a subordinate, was to take charge of the nautical management of the ship. But, so far as I can see, this letter only affected ""the re-lotions between Greene and his employer. In virtue of those instructions, it, no doubt, became the duty of Greene to consult and be guided by McNeil upon all questions which concerned merely the navigation of the vessel; but they did not convert the subordinate into the master. Greene had the legal authority which belonged to that office, and McNeil had not; the allegiance of the crew was due to the office, and not to the private instructions, of which they may, or may not, have been entirely ignorant. The relations between master and crew, as established by the maritime law and the acts of congress, cannot be changed by an interference of this nature. The nature of the service admits of but one supreme authority, and the laws recognise but one; that authority was vested in Greene, in virtue of his office; he alone had the power to compel the obedience of the crew by dispipline and punishment, although the directions might be given by another person. (United States v. Taylor, 2 Sumner 584; Curtis’ Rights and Duties of Merchant Seamen, 4, 5, 7, 15; 1 U. S. Statutes at Large, 1790, c. 29, § 1; 4 Id. 1835, c. 40, p. 775.) In a conflict of opinion or command, between Greene, as -master, and McNeil, the crew would have been guilty of revolt or mutiny, if they had obeyed the latter, and disregarded the authority of the former.

The vessel, then, was not seaworthy, according to the definitions contained in all the authorities. Seaworthiness requires the presence of a master of competent skill. Keeler v. Firemen’s Insurance Co., 3 Hill 255; 3 Kent 287; 1 Arnould on Insurance 684.) But Greene was totally ignorant of navigation; having, in fact, never before been at sea. McNeil had the required skill; but he had not the legal power of a commander. We may speculate; but we cannot affirm, that the perils of the voyage would have been the same, if the requisite skill and authority had been combined in one person. In the contract of marine insurance, seaworthiness is an implied condition, fatal to the policy, in its very inception, if the condition be not performed. We think, it was not performed in the present case, because the authority of the master ex-Without skill; and the skill of the subordinote was without legal authority. The policy was, therefore, void.

Judgment reversed, and new trial awarded. 
      
       In the case of The Dubuque, 2 Abb. U. S. 20, in the district court of the United States for the eastern district of Michigan, Longyear-, J., dissented in toto -from the doctrine of this case, and held the opinion of Chief Justice Comstock to be the better law. And in this the writer entirely concurs ; the transaction was clearly in fraud of the act of congress, and contrary to public policy, ■
     