
    No. 1008.
    Jose Domingo v. The Merchants’ Mutual Insurance Co.
    Where the Merchants’ Mutual Insurance Company of New Orleans, having insured the steamship Cornudella to navigate the waters of the gulf between certain ports named in the policy, seek to avoid payment of the insurance, when the vessel has been lost by being wrecked on the bar, while attempting to enter one of the ports named, they must show by evidence that the loss ocourred through the negligence and fault of the master of the vessel.
    It is sufficient for the master to place the vessel in charge of a pilot familiar with the bar and channel, who has been in the habit of piloting sea-going vessels across the bar, where the contract shows no stipulation to the contrary.
    A PPEAL from the Third District Court of New Orleans, Fellowes, J.
    
      W. H. Hunt and T. L. Bayne, for plaintiff and appellee.
    
      A.. & M.. Voorhies, for defendant and appellants.
    
      Brief of Wm. H. Hunt and Thos. L. Bayne, for plaintiff and appellee.
    
    * * * But it is said that Cromer was taken aboard the Oornudella at New Orleans, and had not visited Bagdad for “ four or six weeks previous” to the loss of the steamer. It is asked: “Taking this in connection with the shifting character of the quicksand bar ‘and channel at the mouth of the Rio Grande, and with the well-established custom of bar pilots (whether regular pilots or captains of lighters) to sound constantly, daily, if possible, in order to keep the run of these changes, did not the assured commit a breach of warranty, in taking as pilot to cross the bar, a lighterman who had been so long absent ?”
    The answer to this inquiry is obvious. If the law or usage at Bagdad required a vessel about to cross the bar to take even a regularly licensed pilot offering himself, the master of the vessel would be compelled, according to this doctrine, to ascertain before he took him, whether such pilot had sounded the bar on that day or the day before, in order to come up to the standard of seaworthiness here contended for! Such a requirement would be unusual, and is not in accordance with any system of law. “If a person, representing himself and believed tobé a qualified pilot, is taken, the warranty of seaworthiness is satisfied, though he is not in fact qualified. ” 1 Phil., $ 714, p. 888. Law v. Hollingsworth, 7 T. R. 160.
    
      It was enough for the assured to know that Cromer was familiar with the bar; that his reputation, as a pilot, was unexceptionable, and that he was in the constant habit of taking other vessels over the bar. The plaintiff had no right and no reason to believe, that if the bar required to be sounded before attempting to cross' it, he would omit to perform ■ his duty. Indeed the evidence of all the witnesses concurs in showing that Cromer, after first surveying the bar, took the correct channel over it, and that had he sounded for the channel he would not have run more directly through its centre.
    But it is said that “ the loss of the vessel was the result of stubborn mismanagement on the part of the master, thereby discharging the insurers from all liability. ” The only evidence referred to in proof of this ground of defence is that of James Hill. He seems, from his own account, to have boarded the steamer after she got aground, and to have ■been quite officious in at once volunteering advice as to the means of saving her. He recommended to the captain to engage an anchor and cable that were in the small boat on which he had come out to the steamer.
    He is particular in the avowal of his disinterestedness, in giving this advice; and adds: “the boat and cable did not belong to me.” “Capt. Sheldon positively refused, saying he could save the boat without it. ” He . further told Capt. Sheldon “ she must be rescued by anchors and ropes, and not by working her machinery. Capt. S. persisted in working the machinery.”
    Unfortunately for the defendant’s case, the correctness of Hill’s advice is not shown by the testimony of other witnesses; and the fact that the captain persisted in attempting to save her by means of working her machinery instead of by anchors and ropes, is not demonstrated to have been a mistake. The opinion of Hill seems to have been in opposition to that of the captain and pilot of the steamer; and there is nothing in the record to prove that Hill’s method of saving her would have been more successful than theirs.
    In conclusion, the plaintiff submits:
    . That the loss of the Cornudella, by an event within the policy of insurance, is shown by the evidence and admitted by the pleadings;
    , That the presumption of law is in favor of her seaworthiness. 2 Gren. Ev., §401. Hen. Dig., p. 715, and the burthen of proof of unseaworthiness rests upon the defendants;
    That the testimony shows that she was seaworthy, and that the proof of unseaworthiness has signally failed;
    That the port of Bagdad was in no sense a well-appointed port; that lightermen were the most competent and experienced pilots, and were generally employed as such, even in preference to the two or three parties spoken of by a. few witnesses as pilots, and who derived their pretended authority from irresponsible and irregular sources;
    That the Cornudella, when lost, was in charge of a pilot of established reputation and entire .competency; and
    That every act was done by the master and crew of the vessel to avoid the disaster which befell her, and which resulted in a loss, now sought to be entailed entirely upon the plaintiff, in spite of the defendant’s solemn contract of partial indemnity in the event of its occurrence.
   Howell, J.

This is au action on a policy of insurance taken out, by plaintiff on a steamship, to run from New Orleans to the Rio Grande, and there navigate between Bagdad and Oamargo ; the defence to which is, that the ‘1 loss was caused by the master’s failure to employ a pilot' to navigate the vessel on coming upon pilotage ground, at the mouth of..the, Rio Grande, where custom and usage required .said vessel to be s.o nayi7' gated ; * * * and that the doings and actings of the master, and crew, at the time of, and after the loss, further occasioned said loss.’ ?.

Judgment was rendered in favor of the plaintiff for the amount of-the, policy, and defendant appealed. . . . . '.

The evidence shows that the master of the steamship took on at New, Orleans a pilot, who was a captain of a lighter used at, and was familiar,, with, the bar at the mouth of the Rio Grande, and who, upon arriving.;there, and after examination, informed the master that it was safe then, to cross, although the water on the bar was quite rough ; but after, pas-; sing over the shoal portion of the bar, the vessel struck some hidden-, object in the channel, supposed to be ananohor or a sunken vessel, whicR, broke one of the wheels, and caused the boat to sheer to the northward, and run on the bar on the Texas shore. In backing her 'off, the other, wheel was also disabled, and she drifted seaward upon the bar, broadside;, to the channel, where she became a wreck. ... ...

It is contended that the custom required the vessel to be put under i;h®.. charge of a licensed pilot in crossing the bar, and a large number of wib, nesses on each side were examined as to the existence of such a.custom ; but we think the preponderance of evidence is with plaintiff—that it ie; sufficient to place the vessel in charge of a pilot familiar, with, the bar, and channel, and in the habit of piloting sea-going vessels.across the bar, ,, and that the person employed by the master was such a pilot. The-, argument, that it is necessary, from the shifting nature of the-bar, for, the pilot to examine it daily, and that the pilot on this boat had been; absent a few weeks, does not seem to possess much force, as it appears, that the vessel was steered in the right channel. It seems, also, that one of defendant’s witnesses, who claims to be a licensed pilot, had his, .boat sunk in attempting to go out to plaintiff’s steamer on the occasion.

It is by no means satisfactorily shown that Bagdad was a well-appointed port, with regular pilots commissioned by public authority.

It is said, by some of the witnesses, that there are some “licensed pilots ” there, but the sources'from which they obtained license, if it be in any manner a formal license, are vague and irregular. Ve are left to, conjecture, in regard to the duties and authority of the captain of the port, and any established power to control the affairs óf the port, -.

The evidence is insufficient to establish such a custom as the defence relies on, and which it was incumbent on them to prove. 2 Green. Ev,,„ i 401.

When lost the boat was in charge of a pilot of established reputation and entiro competency—one of that class to which it was customary to intrust vessels in crossing the bar at the Rio Grande, although there were some of this class, who seem to have been favored in some way by some of. the various authorities, which, existed from time to time in that and adjacent localities.

From the testimony of those who had the best opportunities of knowing, we think the master and crew did all in their power to avoid the loss.

Judgment affirmed, with costs.

Rehearing refused.  