ers are not liable for any occasioned to the ship, cargo, or to any other vessel, unless such damage or loss be occasioned by their own default, or that of the crew. The pilot him self is answer able for gross neglect, or in competency. Bennett v. in running down another ship, unless, indeed, express evidence be damage or loss given, that the master superseded the pilot in the management of the ship, and that the fault was occasioned by himself or crew. In Bennet v. Moita, (a) the ship Ranger had taken a pilot on board, off Gravesend, to navigate her to her moorings, near Rotherhithe; in the course of proceeding to this place she was run foul of by the defendant's brig the Carvalto, the Carvalto at that time having an old experienced pilot on board. The counsel for the defendant objected, that the action could not be maintained, the Carvalto having a pilot on board, by whom the authority of the master was divested. He supported this objection upon the 52 Geo. 3. c. 39. s. 30. (before cited) by which it is provided, "That no master or owner of any ship or vessel shall be answerable for any loss or damage; nor shall any owner or owners of any ship or vessel or consignee of goods be prevented from recovering any loss or damage upon any contract of insurance of the same, or upon any other contract relating to any other ship, or vessel or any cargo on board of the same, for or by reason or means of any neglect, default, incompetency, or incapacity of any pilot taken on board of any such ship or vessel under or in pursuance of this act." It was contended on the other side-1. That the act did not extend to ships in the river Thames. The act was intituled "an act for the more effectual regulation of pilots and pilotage of ships and vessels on the coast of England." Now, the term coast was properly confined to the shores of the sea. Had rivers been intended,—would not the act have used the characteristic word banks? 2. That the statute did not prevent an action being brought against the captain; and that, at any rate, to exculpate the captain, it should be shewn that the accident arose from the negligence or incapacity of the pilot. But Gibbs, C. J. determined both points in favour of the defendant. He said, that the act manifestly extended to the river Thames; and the pilot being on board, and the authority of the master thereby divested, the latter ceased to be responsible when he ceased to act. If a pilot were grossly incompetent he (a) Holt, N. P. 359.; and 7 Taunt. 258. See likewise Boucher v. Noidstrom, 1 Taunt. 568. Nicholson v. Mounsey, 16 East. 384.-See likewise Cotts v. Herbert, 3 Stark. N. P. 14. Case for negligently running foul of a vessel.-Defence, that the defendant's vessel was under the management of a pilot.-L. C. J. Abbott said that it was still a question of fact for the decision of a jury, whether the mischief had been occasioned by the incapacity of the pilot.-Did the pilot, in fact, take upon himself the management of the vessel. If the pilot had legally the management of the vessel, the master and owners were not answerable. would be answerable for his own negligence or misfeasance; when the master is required to give up the ship to him. XVI. In Carruthers v. Sydebotham, (a) the Court of King's Carruthers v. Sydebotham. Bench, on the same principle, decided, that where the captain of a vessel took on board a pilot by virtue of the Liverpool Pilot Act, (which incorporated the general provisions of the 52 Geo. 3. c. 39.) and a loss happened, occasioned by the neglect of such pilot, whilst the ship was under his conduct, the assured were not prevented from recovering an average loss upon a damage by stranding. XVII. In Carruthers v. Sydebotham the judgment of the court of King's Bench was founded upon the principle, that the master shall not be answerable for the act of the pilot whom he does not appoint; whom he is bound by law to receive into his vessel; and who, when on board, displaces his authority, and supersedes him in the temporary government of the ship. It seems, indeed, unreasonable to make a master responsible where he has no controul. It was upon this principle that the decision in Nicholson v. Mounsey, supra, proceeded. But, unquestionably, the captain would be answerable for any individual personal misconduct in himself and crew; and the pilot himself is responsible, if he be guilty of gross negligence, or if he does not exercise his art with reasonable skill and discretion.-He is bound to be competent, and to have the necessary knowledge and experience. It must be observed, that the case of Carruthers v. Sydebotham is somewhat at variance with a case subsequently decided in the Court of Exchequer. In the Attorney General v. Case, (b) that court decided, Attorney Gethat the owners of a merchant vessel running foul of, and damaging a king's ship lying in the river Mersey, by the misconduct of the persons on board, were liable in an information for damages, in the nature of an action on the care, although she had on board, at the time of the accident, a pilot duly licensed. This case likewise turned on the Liverpool Pilot Act, and not on the 52 Geo. 3. c. 39.; and the distinction which the court took was, that the Liverpool Pilot Act was not of itself (nor by reference to the 52 Geo. 3. c. 39.) imperative, compulsory, or penal on the captain, to take a pilot on board whilst his vessel was lying at anchor: but merely subjected him to the payment of the pilot's regulated allowance on refusal. In this case also the court, after great deliberation, determined, that the thirtieth section of the 52 Geo. 3. c. 39. (which, they said, was commonly, but improperly, termed the gene neral v. Case. Construction pool Pilot Act of the Liver by the Court of Exchequer. Of the pilot's responsibility. Slater v. ral pilot act,) discharging masters and owners of vessels having pilots on board from responsibility for damages occasioned by the neglect of the pilot, did not apply to vessels having on board pilots appointed for other places than those expressly named in the preamble and provisions of that act. They thought, however, where that act did apply, that the crown was equally bound with the subject. Indeed, the 52 Geo. 3. has always been considered as an act in relief of the general responsibility of the master and owners of ships, having pilots on board in pursuance of its provisions. Therefore, in Ritchie v. Bousfield, before cited, (a) the Court of C. P. decided that the exemption of the master, &c. from responsibility by the thirtieth section of that act was not confined to loss or damage happening to the piloted ship and cargo but extended to damage done by that ship to others. XVIII. We have already said, that a pilot is answerable for general negligence and incompetency: but his liability does not extend so far as that of the master and owners. Carriers, whether by sea or land, are in the nature of insurers; and are answerable in all cases, except the act of God and the King's enemies, unless protected by special agreements. Pilots are not responsible to this extent; they are bound to have competent skill and ability, and to exercise their functions with diligence and discretion but they are not insurers, and are not, therefore, responsible for miscarriage or accident, unless occasioned by their negligence or wilful default. Thus, in Slater v. Burgess, (b) where a vessel was placed under the management of a cinque port pilot, and ran foul of another vessel in a dark and foggy night, but under such circumstances, that no reasonable blame was imputable to the pilot; Dallas, L. C. J. said, that the master and owners were exempted under the general pilot act, because they had taken a pilot on board under the compulsory clauses of that act; and that with respect to the pilot, the only question was, whether he conducted himself with that proper skill and ability which he owed to those who employed him? That he exercised a profession of art, and was therefore responsible for misfeasance: but that he was not liable to make good a loss occasioned by ordinary misadventure or miscarriage. If he was guilty of positive default or negligence, or wanted the proper skill and competency of a person in his situation, he would be responsible; otherwise not. The jury found a verdict for the defendant. (a) 7 Taunt. 309.; and see ante. after Trin. Term, 1820. See likewise sect. 31. of 52 Geo. 3. c. 29. of Where a mas ter takes a pilot volunta so to do, he is protection of Geo. 3. c. 39. not within the s. 30. of 52 XIX. Wherever it is penal upon a master not to take a pilot on board, within any limits for which pilots are appointed, he is, course, within the protection of sect. 30. 52 Geo. 3. c. 39. But rily; that is, not being comin many foreign and home ports, where pilotage, however neces-pelled by law sary, is not enjoined upon masters under a penalty; in such cases, the master must act according to his discretion, and on his own responsibility. It will perhaps be his duty to take a pilot, in order to navigate the ship safely: but he does not thereby shift off his responsibility, and that of his owners. In such cases, there will be a privity between the master and the pilot, who would be, in effect, the master's servant, for whom he would be responsible. It is only where the master cannot navigate without a pilot under a penalty, that he is under the compulsion of law to take one; and then he is not answerable for the misconduct of a person, whose appointment the provisions of the law have taken out of his hands. It is a different case where he takes a pilot voluntarily. (a) (a) See the Judgment of Lord El- botham, 4 Maule and Selw. 77. lenborough in Carruthers v. Syde 308 CHAPTER VII. OF CONVOY. Of the reason acts. SHIPS and their cargo being a species of property of no less imof the convoy portance to nations than to their individual proprietors, and being often of a character, the capture of which would add to the hostile means and power of the adversary, the Legislature has imposed restraints during a period of war, the object of which is to prevent them from falling into the hands of the enemy. Of the pro visions of the 3. c. 57. I. With this purpose the law requires all captains and masters, unless in certain excepted cases, to sail with convoy. Accordingly, at the commencement of every war, it is usual to pass an act of parliament, prescribing and regulating the stations of convoy, and the duties of captains to sail with them: but which act necessarily expires with the war which gave occasion to it. The last of these acts was the 43 Geo. 3. c. 57. which expired upon the conclusion of the late peace: but the provisions of this statute are so reasonable, and so necessarily applicable to all wars, that as they must be re-enacted fundamentally upon any future commencement of hostilities, they may be regarded as constituting the law of convoy in a period of war; and under this view they fall within the present division of our subject, II. With a difference only in the name and date of the act, according to any future occasion, the following principles and cases will for the most part apply to any subsequent act of convoy. III. By the 43 Geo. 3. c. 57., the last convoy act as above said, late convoy act it was enacted, "That it shall not be lawful for any ship belongof the 43 Geo. ing to his Majesty's subjects, (except as therein after provided,) to depart from any port or place whatever, unless under such convoy as may be appointed for that purpose. And the master is required to use his utmost endeavours to continue with the convoy during the whole voyage, or such part thereof as the convoy shall be directed to accompany the ship, and not to separate therefrom |