Draper v. The Commercial Insurance Company.

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 such 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.

....

It

The policy in this case contemplates the right of the owner to change the master before the voyage should commence. 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 his 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.

SELDEN, DAVIES, CLERKE, and WRIGHT, Js., concurred.

COMSTOCK, Ch. 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

Draper v. The Commercial Insurance Company.

the relations 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 recognize 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 discipline and punishment, although the directions might be given by another per son. (United States v. Taylor, 2 Sumner C. C., 584; Curtis' Rights and Duties of Merchant Seamen, 4, 5, 7, 15; 1 U. S. Statutes at Large, 1790, ch. 29, § 1; 4 Id., 1835, ch. 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. The Firemen's Ins. Co., 3 Hill, 255; 3 Kent, 287; 1 Arnold 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 existed SMITH.-VOL. VII.

49

Milbank v. Dennistoun.

without skill; and the skill of the subordinate was without legal authority. The policy was therefore void.

DENIO and BACON, Js., concurred in this opinion.

Judgment reversed, and new trial ordered.

MILBANK et al. v. DENNISTOUN et al.

Where the instructions of an American owner of flour to his factor at Liverpool were to withhold it from sale until an expected act of Parliament had produced its results upon the market, the latter is not chargeable with a breach of instructions in selling prematurely, if he wait a considerable time after the passage of the act and then sell in good faith and with reasonable prudence.

Under such instructions, the factor has a discretion, after the market has remained a considerable time under the influence of the new law, to judge whether the measure has produced its full effect upon the market; and he is not liable for an error in judgment in that respect.

The evidence being in no respect contradictory, it was error to submit to the jury whether there was a breach of instructions.

APPEAL from the Superior Court of the city of New York. The action was commenced in 1847, to recover damages against the defendants for alleged misconduct in selling a cargo of five thousand barrels of flour, which the plaintiffs had consigned to them as factors for sale at Liverpool. The plaintiffs were merchants in New York, having also a house in New Orleans; and the defendants transacted business in Liverpool, and likewise had a house in the city of New York. The flour was shipped from New Orleans by the N. Biddle, in June, 1846, and arrived at Liverpool on the 18th July following. The plaintiffs obtained an advance from the defendants, through their house in New York, of $2.25 per barrel on the flour, on delivering the bills of lading indorsed to the defendants. It appeared that, at the time of the shipment, a bill had been introduced into Parliament greatly reducing the duties on

Milbank v. Dennistoun.

breadstuffs imported into the United Kingdom, which eventually received the royal assent on the 27th June, and took full effect on the 30th of the same month. It immediately reduced the duty on foreign wheat imported, from eighteen shillings to four shillings per quarter (which was the lowest duty which could be received under that act), and upon imported flour in the same proportion, viz., from ten shillings and ten pence to two shillings and five pence per barrel; and it applied equally to flour which had arrived and been placed in a bonded warehouse before the act took effect, with that which arrived subsequently. The plaintiffs gave in evidence the correspondence between the parties respecting the shipment, from the commencement to the conclusion of the adventure, embracing a good many letters on each side. On the 25th June, the plaintiffs wrote the defendants, advising them of the consignment, but directing them not to dispose of the flour until they should further advise them by a subsequent steamer, the Caledonia, unless twenty-two shillings in bond should be obtainable, at which price they were permitted to sell, if they should consider it for the interest of the plaintiffs. On the 27th June, the plaintiffs wrote the defendants, by the Caledonia, a letter upon which the principal question in the case turns. They inclose invoices of the flour by the N. Biddle, and also of three thousand barrels of other flour sent by another vessel, the Georgianna, and state the particulars of the advance they had received from the defendants' partners in New York, and express confidence that the flour would arrive out in a sweet condition. The letter then proceeds as follows: "When shipping, we had hoped for a better market than the prospect now justifies. We fear the first introductions for consumption may tend to continue low prices, as they will probably be large immediately on the passage of the new bill. Believing that after the stocks now in bond shall have been reduced by consumption, &c., that an improvement may ensue, we would express our desire that these parcels may be withheld from the mar ket until the operation of the new law shall have produced its results. We hope we may not err in assuming its passage; though if

Milbank v. Dennistoun.

twenty-two shillings in bond is obtainable on arrival, and you think our interest dictates such sale, please so dispose of it.”

The defendants received this letter on the 12th July, prior to the arrival of the N. Biddle; and upon her arrival, they wrote the plaintiffs that the price mentioned in their letter of the 27th June could not be obtained, and that they thought it probable that after getting a sample of the flour they should have it stored, and should await the arrival of one of the plaintiffs, who was expected to come out to Liverpool very soon. They, however, sold the flour soon afterwards, about half of it on the 4th and the remainder on the 5th and 7th of August, at twenty-one shillings, except one hundred barrels, which brought twenty-one shillings sixpence, free of duty. On the 18th August the defendants wrote the plaintiffs, enclosing a note of the sales of the flour, and saying that they were induced to sell by the continued fine appearance of the season; but that they now regretted having done so, for that on the 11th and 12th instant a great change for the worse had taken place in the weather, and the potatoe crop was completely blighted. They added: "A great change has accordingly taken place in the last five or six days in the corn markets all over the country, and New Orleans flour has risen two shillings per barrel, with every prospect of a further advance, as the advices are daily more decided from every quarter of the country as to the irreparable injury which the potatoe crop has sustained."*

*The failure of the potatoe crop, and the consequent advance in the price of breadstuffs and the famine which ensued, referred to in the testimony in this case, are events forming an interesting chapter in the history of Europe for the years 1846 and 1847. Sir ARCHIBALD ALISON, in treating of them, uses this language: "We now approach the most awful and memorable catastrophe in modern times; that in which the most appalling destruction of human life took place, the greatest transposition of mankind was induced, and in which the judgments of the Almighty were most visibly executed upon the earth." "The summer [of 1846], which had been warm and genial in the earlier months, became suddenly overcharged with moisture and electricity in the last weeks of August. Heavy rains fell for above a fortnight, accompanied by six violent thunder storms; a peculiarity of the weather which has always been observed in the seasons when the potatoe disease has been remarkably widespread and violent.