case no bond had been executed, would have been discharged by the want of notice of dishonour. The condition, however, is totally silent as to notice, as the only event there mentioned is non-payment by the acceptor. I am of opinion, that here there was no payment by the acceptor, either in fact or in law; and, therefore, that the defendant still remains liable on the bond. 1821. MURRAY against KING. BEST J. Co concurred. Judgment for the plaintiff. WALKER against MAITLAND. .t A RULE nisi having been obtained, in Hilary term last, for setting aside the award in this case, the Court, on cause being shewn, ordered the award to be stated in a case for their opinion. The material facts stated on the face of the award were the following: The plaintiff, being owner of the ship Britannia, by a charterparty, bearing date the 5th day of Cctober, 1818, chartered her to James Wildman to proceed to the West Indies, there to load a cargo of colonial produce, and to bring home the same to this country. By the usage of trade in that behalf, the risk of bringing colonial produce in the West Indies from shore to the ships in which the same is to be conveyed home to England, is borne by the owners of ships, unless specifically agreed to the contrary. The plaintiff, to indemnify himself against such risk, with respect to loading the Britannia in the said voyage, on the 24th April, 1819, effected a policy of 1821. WALKER against MAITLAND. ! of insurance in the common printed form on boats belonging to the ship Britannia, and on produce in said boats, or in any other craft employed in loading the ship during her stay at St. Kitts. The defendant, by his agent, subscribed the policy for 200l., The ship Britannia arrived at St. Kitts, on the said voyage, on the 6th day of January, 1819. She was manned with a competent crew, had they conducted themselves with propriety, and done their duty in loading the ship. On the 16th day of April, 1819, while the ship lay at St. Kitts to take in her cargo, a certain sloop, called the Vigilant, was employed as a craft on behalf of the said plaintiff, to bring produce from a place in the island called Red Flag Bay to the ship, then lying at the distance of fifteen miles therefrom. The sloop having received a full loading of sugar, to be carried on board the ship, proceeded from Red Flag Bay about six in the morning for the ship, in charge of the chief mate and three seamen belonging to the ship, and four negroes, labourers. The sloop was sufficiently manned; and if the mate and the other persons had done their duty, the sloop, with the produce on board thereof, would have safely reached the ship. About eight in the evening the mate lay down to sleep, leaving the charge of the watch to one of the seamen, another having the helm'; and soon after the mate went to sleep, the whole of the watch on duty went to sleep also. The sloop being left to herself, ran ashore, and was beat to pieces, whereby part of her loading was lost, and the residue damaged. The loss arose and happened from the misconduct and negligence of the persons so on board the sloop. On the 17th April, while the ship was at St. Kitts, for the ! . purpose purpose aforesaid, four seamen of the ship were sent ashore by the master in the long boat of the ship to bring on board a hogshead of sugar, then lying on the beach, and, having put the hogshead of sugar into the boat, by their mismanagement the boat was driven on the beach and wrecked, and the hogshead of sugar was entirely washed out. If the boat's crew had done their duty, the boat would have safely reached the ship with the hogshead of sugar; and the loss' thereof arose from the misconduct and negligence of the boat's crew. Upon these facts the arbitrators awarded in favour of the plaintiff. Campbell, for the plaintiff, relied upon Busk v. The Royal Exchange Assurance Company as an authority in point. (a) Pollock, contrà. Here the loss has happened in consequence of the negligence of the crew, who are the servants of the plaintiff, and not by perils of the sea. This is, therefore, in point of law, a loss happening from the negligence of the assured himself; and, therefore, the underwriters are not liable. In Gregson v. Gilbert (b), it was held, that where a loss happened by a mistake of the master, it could not be considered a loss by perils of the sea. And Buller v. Fisher (c) is to the same effect. In this case, too, there was a breach of the implied warranty to provide a master and crew of competent skill. For here they were not sufficiently (a) 2 B. & 4. 73. (b) Marshall on Insurance, 690. vigilant, 1821. WALKER against MAITLAND. vigilant; and, in consequence of that, the loss happened. Tait v. Levi. (a) ABBOTT C. J. I am of opinion that the plaintiff is entitled to recover. The subject of this insurance was very special; it was on boats belonging to the ship Britannia, and on produce in the said boats, or in any other craft employed in loading the ship during her stay at St. Kitts. No doubt the owner, under this policy, expected to be indemnified against the loss in question. The words of the policy are very large, and, although it may appear extraordinary, that the underwriters should undertake to indemnify the assured against the negligence of the master and crew, which is a species of misconduct on their part, yet it is clear, that they do so in the case of barratry, which is the highest species of misconduct of which the master and crew can be guilty. In this case, the immediate cause of the loss was the violence of the winds and waves. No decision can be cited, where, in such a case, the underwriters have been held to be excused in consequence of the loss having been remotely occasioned by the negligence of the crew. I am afraid of laying down any such rule; it will introduce an infinite number of questions, as to the quantum of care which, if used, might have prevented the loss. Suppose, for instance, the master were to send a man to the mast-head to look out, and he falls asleep, in consequence of which the vessel runs upon a rock, or is taken by the enemy, in that case it might be argued, as here, that the loss was imputable to the neg (a) 14 East, 481. ligence ligence of one of the crew, and that the underwriters were not liable. These, and a variety of other such questions would be introduced, in case our opinion were in favour of the underwriters. I cannot distinguish this case from that of Busk v. The Royal Exchange Assurance Company; there, the immediate cause of the loss was fire, produced by the negligence of one of the crew; yet the underwriters were held to be liable. Here, the winds and waves caused the loss, but they would not have produced that effect, unless there had been neglect on the part of the crew, I think that the underwriters are liable for the loss that has arisen in this case. BAYLEY J. Here, the loss arose from the sloop with the goods on board having been beat to pieces by the force of the winds and waves; and the question in this case is, whether the underwriters are exonerated from the loss, by proving negligence on the part of the crew, although the damage was occasioned by the perils of the sea. It is the duty of the owner to have the ship properly equipped, and for that purpose, it is necessary that he should provide a competent master and crew in the first instance; but having done that, he has discharged his duty, and is not responsible for their negligence, as between him and the underwriters. If that were not considered to be the law, the question must have frequently arisen, whether there had been proper care and attention by the master and mariners. It is now, however, raised almost for the first time. I am of opinion, that in this case the underwriters are liable. 1821. WALKER against MAITLAND. HOL |