By the court:
Slidell, J.
This action is upon a policy of insurance for the value of goods shipped in the schooner Maria, on a voyage “ from New Orleans to Brazos river and about twelve miles above Columbia.” The vessel was wrecked in crossing the bar at the mouth of that river. The defendants resist the payment of the loss, on the gi’ound that it was occasioned by the neglect of the master to employ a pilot in crossing the bar.
There was judgment for the plaintiff in the court below, and the defendants have appealed.
[685]*685We consider it as satisfactorily resulting from the evidence, that it is customary for vessels of the description of the Maria, to take a pilot in ci'ossing the bar of the Brazos river; and the propriety of doing so is shown by the nature of the locality. It appears from the testimony, that there is a shifting bar and channel, and that it would not be safe to cross without a pilot. The absence of a pilot under such circumstances, must be considered as producing a positive and definite increase of risk.
It may be considered as well settled in American jurisprudence, that a master, in entering a foreign port where pilots are usually employed, is bound to approach the pilot ground with caution, and to use reasonable diligence to obtain a pilot. If he enters without a pilot, and the vessel grounds and is wrecked in doing so, the underwriters on ship are not answerable for the loss thereby sustained, unless it be shown that the reasonable diligence to obtain a pilot was unsuccessfully exerted, or that circumstances of impending danger rendered it unsafe to wait for a pilot, or that such other state of facts existed as would reasonably excuse the omission, by showing its necessity. See Bolton v. American Insurance Company, cited in 3 Kent, in note page 76. Phillips on Insurance, p. 315. Keeler v. Firemen’s Insurance Company, 3 Hill, 250. 2 Greenleaf’s Evidence, § 400. McMillen v. Union Insurance Company, 1 Rice, 248, cited in note, Kent, supra. See also 3 Kent, 289, Patapsco Insurance Company v. Coulter, 3 Peters, 235.
That the question of liability of underwriters, in case of the omission to take a pilot, is the same, whether insurance be on the ship or goods laden on board by third persons, seems clear. The subject of employing a pilot appears properly to fall under the head of seaworthiness, and is so treated by the commentators. Now, it is settled, that the warranty of seaworthiness is equally implied, whatever may be the subject of insurance, and applies no less to insurances effected by the owner of goods, than to those effected by the owners of the ship. See Oliver v. Cowley, cited in Park, vol. 1, p. 298. Ib. 306. Arnould, 654. 1 Phillips, 308. See also Taylor v. Lowell, 3 Mass. 347.
The owners of the goods are not without recourse. They have their remedy, for the consequences of the captain’s neglect to take a pilot, against him and the owners of the ship.
It is proper here to remark, that although it seems to be the great leading principle of the English doctrine of seaworthiness, that there is no implied warranty of seaworthiness, except at the commencement of the voyage, yet the law in the principal commercial States of this Union, is at variance with the English doctrine, and gives a wider extent to the implied warranty. It holds it to be the duty of the assured to keep his vessel seaworthy during the voyage, if it be in his power to do so ; and if, from the neglect of the owner, or his agents, the vessel becomes unseaworthy, by damage or loss in her hull or equipments, during the voyage, the owner must repair the damage or supply the loss, at the port of refuge, refreshment, or trade. The underwriter will be discharged from liability for any loss, the consequence of such want of diligence. Kent, vol. 3, p. 288. Ib. 289. Arnould, 666.
The American doctrine, however, is qualified to this extent: that unseaworthiness, arising after the commencement of the voyage, has not a retrospective operation, so as to destroy a just claim in respect of losses which have occurred prior to the breach of the implied warranty; and also, that if the ship sailed seaworthy for the voyage, subsequent unseaworthiness shall not operate as a [686]*686defence, except where the loss is distinctly shown to have been occasioned by it, and the unseaworthiness itself to have arisen from the negligence or misconduct of the assured or his agents. The language of Mr. Kent, with regard to this latter qualification, is very apposite, by reason of the illustration it gives, to the present controversy. “The owner,” says he, “is bound to keep the vessel in a competent state of repair and equipment during the voyage, as far as it may be in his power. If this be not the case, and a loss afterwards happens, which could by any means be either increased or affected by a prior breach of the implied warranty of seaworthiness when the policy attached, — as, for instance, if the master should omit to take a pilot at an intermediate port, where he ought and might have done it, and the vessel be, two years afterwards, lost, by capture; or, if he sailed without sufficient anchors, and the vessel be afterwards struck with lighthing, — would the insurer be discharged ? The better opinion would seem to be, that he would not be discharged.” 3 Kent, 289. See also Paddock v. Franklin Insurance Company, 11 Pick. 227.
Mr. Arnould advocates the English rule, and considers it decidedly preferable, both as giving the assured a more complete indemnity, and also preventing many nice and difficult inquiries, which, in his opinion, the other system has a direct tendency to produce. But, it seems to us, on the other hand, that the American rule is more consistent with public policy, considered with reference to the preservation of life and property.
In the present case, the plaintiffs insist, that the captain did all he could to procure the services of a pilot; and in support of this proposition, they rely on the testimony of the captain, which is as follows:
On Tuesday, 30th April, 1850, at 5 o’clock, a. m., made Galveston Island, bearing Northwest. At 10 o’clock, a. m., made the mouth of the Brazos river. The bar, to appearance, was smooth, and, being abreast of it, (the bar,) hove the vessel to for a pilot, witness at the same time seeing the pilot boat making for his schooner. The pilot boat approached within hailing distance of the schooner, the schooner heading at that time to the South and West, the jib to windward and below her lee, and the pilot boat was on the same tack, at the stern of the schooner, gaining on her, when the pilot boat hailed the schooner and demanded if she wanted a pilot. Witness answered from the schooner, yes; what is the pilotage ? They hailed again from the pilot boat, but witness could not hear distinctly what they said, but supposed it was to repeat the question, and witness returned the same answer. Whilst these questions were being propounded and answered, witness was standing by the lee main rigging, and having a man heaving the lead and reporting four fathoms of water.
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By the court:
Slidell, J.
This action is upon a policy of insurance for the value of goods shipped in the schooner Maria, on a voyage “ from New Orleans to Brazos river and about twelve miles above Columbia.” The vessel was wrecked in crossing the bar at the mouth of that river. The defendants resist the payment of the loss, on the gi’ound that it was occasioned by the neglect of the master to employ a pilot in crossing the bar.
There was judgment for the plaintiff in the court below, and the defendants have appealed.
[685]*685We consider it as satisfactorily resulting from the evidence, that it is customary for vessels of the description of the Maria, to take a pilot in ci'ossing the bar of the Brazos river; and the propriety of doing so is shown by the nature of the locality. It appears from the testimony, that there is a shifting bar and channel, and that it would not be safe to cross without a pilot. The absence of a pilot under such circumstances, must be considered as producing a positive and definite increase of risk.
It may be considered as well settled in American jurisprudence, that a master, in entering a foreign port where pilots are usually employed, is bound to approach the pilot ground with caution, and to use reasonable diligence to obtain a pilot. If he enters without a pilot, and the vessel grounds and is wrecked in doing so, the underwriters on ship are not answerable for the loss thereby sustained, unless it be shown that the reasonable diligence to obtain a pilot was unsuccessfully exerted, or that circumstances of impending danger rendered it unsafe to wait for a pilot, or that such other state of facts existed as would reasonably excuse the omission, by showing its necessity. See Bolton v. American Insurance Company, cited in 3 Kent, in note page 76. Phillips on Insurance, p. 315. Keeler v. Firemen’s Insurance Company, 3 Hill, 250. 2 Greenleaf’s Evidence, § 400. McMillen v. Union Insurance Company, 1 Rice, 248, cited in note, Kent, supra. See also 3 Kent, 289, Patapsco Insurance Company v. Coulter, 3 Peters, 235.
That the question of liability of underwriters, in case of the omission to take a pilot, is the same, whether insurance be on the ship or goods laden on board by third persons, seems clear. The subject of employing a pilot appears properly to fall under the head of seaworthiness, and is so treated by the commentators. Now, it is settled, that the warranty of seaworthiness is equally implied, whatever may be the subject of insurance, and applies no less to insurances effected by the owner of goods, than to those effected by the owners of the ship. See Oliver v. Cowley, cited in Park, vol. 1, p. 298. Ib. 306. Arnould, 654. 1 Phillips, 308. See also Taylor v. Lowell, 3 Mass. 347.
The owners of the goods are not without recourse. They have their remedy, for the consequences of the captain’s neglect to take a pilot, against him and the owners of the ship.
It is proper here to remark, that although it seems to be the great leading principle of the English doctrine of seaworthiness, that there is no implied warranty of seaworthiness, except at the commencement of the voyage, yet the law in the principal commercial States of this Union, is at variance with the English doctrine, and gives a wider extent to the implied warranty. It holds it to be the duty of the assured to keep his vessel seaworthy during the voyage, if it be in his power to do so ; and if, from the neglect of the owner, or his agents, the vessel becomes unseaworthy, by damage or loss in her hull or equipments, during the voyage, the owner must repair the damage or supply the loss, at the port of refuge, refreshment, or trade. The underwriter will be discharged from liability for any loss, the consequence of such want of diligence. Kent, vol. 3, p. 288. Ib. 289. Arnould, 666.
The American doctrine, however, is qualified to this extent: that unseaworthiness, arising after the commencement of the voyage, has not a retrospective operation, so as to destroy a just claim in respect of losses which have occurred prior to the breach of the implied warranty; and also, that if the ship sailed seaworthy for the voyage, subsequent unseaworthiness shall not operate as a [686]*686defence, except where the loss is distinctly shown to have been occasioned by it, and the unseaworthiness itself to have arisen from the negligence or misconduct of the assured or his agents. The language of Mr. Kent, with regard to this latter qualification, is very apposite, by reason of the illustration it gives, to the present controversy. “The owner,” says he, “is bound to keep the vessel in a competent state of repair and equipment during the voyage, as far as it may be in his power. If this be not the case, and a loss afterwards happens, which could by any means be either increased or affected by a prior breach of the implied warranty of seaworthiness when the policy attached, — as, for instance, if the master should omit to take a pilot at an intermediate port, where he ought and might have done it, and the vessel be, two years afterwards, lost, by capture; or, if he sailed without sufficient anchors, and the vessel be afterwards struck with lighthing, — would the insurer be discharged ? The better opinion would seem to be, that he would not be discharged.” 3 Kent, 289. See also Paddock v. Franklin Insurance Company, 11 Pick. 227.
Mr. Arnould advocates the English rule, and considers it decidedly preferable, both as giving the assured a more complete indemnity, and also preventing many nice and difficult inquiries, which, in his opinion, the other system has a direct tendency to produce. But, it seems to us, on the other hand, that the American rule is more consistent with public policy, considered with reference to the preservation of life and property.
In the present case, the plaintiffs insist, that the captain did all he could to procure the services of a pilot; and in support of this proposition, they rely on the testimony of the captain, which is as follows:
On Tuesday, 30th April, 1850, at 5 o’clock, a. m., made Galveston Island, bearing Northwest. At 10 o’clock, a. m., made the mouth of the Brazos river. The bar, to appearance, was smooth, and, being abreast of it, (the bar,) hove the vessel to for a pilot, witness at the same time seeing the pilot boat making for his schooner. The pilot boat approached within hailing distance of the schooner, the schooner heading at that time to the South and West, the jib to windward and below her lee, and the pilot boat was on the same tack, at the stern of the schooner, gaining on her, when the pilot boat hailed the schooner and demanded if she wanted a pilot. Witness answered from the schooner, yes; what is the pilotage ? They hailed again from the pilot boat, but witness could not hear distinctly what they said, but supposed it was to repeat the question, and witness returned the same answer. Whilst these questions were being propounded and answered, witness was standing by the lee main rigging, and having a man heaving the lead and reporting four fathoms of water. The pilot then bore away before the wind, and went on the opposite tack; and, as it is customary on the bar of Texas, for pilot boats to go in first, and for vessels to follow, I bore away after the pilot boat, and followed it for about half an hour; but not keeping up with the pilot boat, I set my signal for him to wait; but he not waiting, and the schooner not getting any farther off from the shore on this tack, witness put the schooner about and stood on the opposite tack. By putting the schooner about, she dropped astern, and was in three fathoms of water before she got headway; and, whilst standing on this tack, she not being able to clear the South breakers, and her anchor and chains not being able to hold her, witness kept her away and attempted to cross the bar. This was the only alternative, either to cross the bar, or drift on the North or South breakers. It was then about 1 o’clock, r. m. when the schooner got on the bar, and she commenced thumping; and, the [687]*687wind being light and dying away, [she lost her steerage way, and the current running very strong out of the river,, swept the schooner on the Southwest point, &c.
In addition to this testimony, the plaintiff also offered the testimony of one of the seamen, which substantially accords with the captain’s. These depositions were taken before a justice of the peace, after the answer was filed in the cause.
If the case stood upon this testimony alone, we might have concurred with the district judge, in holding the defendants liable.
But, a grave difficulty is presented, by comparing the testimony of the captain and seaman, taken after the refusal of the underwriters to pay the loss, on account of the omission to employ a pilot, with the protest made in Texas, a few days after the wreck, and signed by them. This instrument relates, with the usual detail of a log book, from which it would seem to have been copied, the circumstances of the vessel’s voyage from New Orleans to the coast of Texas, giving, day by day, the winds, soundings, weather, accidents occurring on board, &c. We then find the following statement: “ Tuesday, 30th, at 5 o’clock, a. M., made Galveston Island, bearing North-West; at 10 a. m., made the mouth of the Brazos River, the bar to appearance was smooth, the wind fresh from the South-East; at one o’clock, r. m., bore away, and stood on to the bar; but while crossing it, the wind died away, and before the anchors could be let go, the current, which was then running six miles per hour, swept the schooner on to the South-West point, where she commenced thumping on the bottom very heavy; immediately got out the boat, and carried out the anchor; and, at 10^ r. m. succeded in bearing the schooner to the inner point (she thumping heavily all the time, and leaking badly), when the hawser parted, and she was again swept on the South point; it now required both pumps to keep her free; the wind light from the South-East, and continued so until midnight. Wednesday, May 1st, at 1, a. m., the wind began to increase; at 4, the wind still freshening; went on shore in the yaul, and borrowed an anchor from the schooner McNeil, and got the pilot boat and pilot’s men, to assist in taking out the anchor, and to assist in heaving her off. At 5, returned to the schooner, and found she. could not be kept free with both pumps, and that she had settled in the sand. Commenced heaving on the hawser, but found she did not move. At 8, a. m., she had gained on the pumps 2 feet water, and at 10, A. m., she settled down and soon filled to the deck, and became a total wreck; at which time, H. C. Wilcox, wreck-master, came off with two launches and twenty-two men, and began to strip the vessel and take out the cargo ; two men would go under the water and hook on to articles, and the rest hoist them out, and took them on shore. The vessel was all the time gradually sinking, the wind continued fresh, and very little progress could be made in getting out the cargo. Thursday, May 2d, the schooner had sunk so, that the water was one foot on the deck. Worked all this day, but owing to the high sea, got out but little cargo. Friday, May 3d, at daylight went down to the wreck, found six feet water on the deck ; we could get no more cargo out, and abandoned the vessel and cargo as it lay.”
It will be observed that the protest is entirely silent, as to any attempt whatever, to get a pilot. No mention whatever is made of heaving to for a pilot, of speaking one, or even of having seen one, until many hours after the vessel had attempted to cross the bar, and was wrecked.
[688]*688A protest is a very important and solemn instrument. We have indeed no law such as is contained in the celebrated Ordonnanca de la Marine of France, in her existing Code de Commerce ; in the Codigo di Comercio of Spain, and the legislation of some other commercial nations, commanding captains of vessels to make protests or consulates; yet, it is a matter of commercial usage to make them. Although not receivable in our courts as evidence for the masters, his owners or shippers, credit is often given to their contents by merchants and underwriters. Such an instrument usually is, as Mr. Abbott observes, and as every merchant and captain knows, a narrative by the master of the particulars of the voyage, of the storms encountered, the accidents which may have occurred, and the conduct which, in cases of emergency, he had thought proper to pursue. “Fie should take care,” says Mr. Abbott, “ to supply from the logbook, his own recollections, and that of the mate or trustworthy mariners, true and faithful instructions for its preparation.”
When, therefore, a captain, having met with a disaster, prepares and signs a protest, while the circumstances are fresh in his memory, setting forth the manner of its occurrence, and afterwards, when a litigation involving a charge of misconduct against himself has arisen, attempts, as a witness, to account for the disaster, by statements of material incidents of his voyage, undisclosed by the protest, his testimony must be viewed with great distrust, and cannot be considered as satisfactorily verifying the circumstances of the loss.
In Senat v. Porter. 7 Term Rep., it was held, that the protest of the captain could be used to contradict his testimony.
Emerigon, who had not merely studied the law of insurance in books, but had a very large practical experience as an advocate and judge in the admiralfy, says that a captain cannot impeach his own work, and say that he has betrayed the truth, or that he has not exhibited in his consulate all the important facts of the case. And, in another place* he observes : “Every captain who, having the power of making his consulate in due form, fails to do so, renders his conduct very suspicious.” He cites the forcible language of Casaregis: Ex qua omissione actús solüi, facilis, et necessarii, oritur suspicio et presunvptio, quod pretensum damnum navis non accident ex dicta causa.
We must not be surprised therefore, says Emerigon, at the judgments, which having regard to the circumstances of fact, have rested on the want of a consulate, to decide the cause in favor of the insurers. He then cites a case^which presents, as regards the master’s conduct, a very strong analogy to the one before us. A captain borrowed a sum on maritime loan, his voyage being for the coast of Italy, Naples, Corsica and Sardinia. He went to Tunis, where he made no consulate, to show the necessity of his deviation. He there took on board a cargo of timber. He touched at Bastía, where he made a consulate, in which he said nothing as to the cause of his voyage to the Barbary coast. Having left Bastía, he was wrecked. Arrived at Marseilles, he made a consulate, by which he attested, that a storm had forced him to put into Tunis. The lenders objected, that the consulate should have been made at Tunis. The decree, in spite of the shipwreck, condemned the captain to pay the sum received on maritime loans, with the marine interest and land interest. See Emerigon (Meredith) p. 606. et secq.
Although in the tribunals of France, the rules of evidence, in matters of insurance, differ from our own, and the doctrines thus enunciated by Emerigon must therefore be considered with proper qualifications, their spirit commends itself to our reason, and may be invoked here in the investigation of truth. .
[689]*689It is therefore decreed, that the judgment of the district court be reversed, and that there be judgment of nonsuit, the plaintiff paying costs in both courts.