MARINE INSURANCE.-LOSS OCCASIONED BY NEGLECT TO EMPLOY A PILOT will, where the loss is a direct and immediate consequence of the neglect, discharge the insurers of the ship, freight, or cargo, of their liability. The obligation imposed upon the assured to take a pilot on board the vessel, when a port has been reached at which it is the custom to employ the aid of a professional pilot, it has usually been conceded, arises under the implied warranty included in the insurance, that the vessel is in all respects seaworthy. In marine insurance the assured is understood impliedly to warrant, by the mere fact of effecting the insurance, independently of the express terms employed in the policy, that the vessel is, at the time, entirely seaworthy: Ph. Ins., sec. 695; Barnewall v. Church, 2 Am. Dec., 180; Warren v. United Ins. Co., 1 Id. 164, and cases cited in the note. The warranty includes not only the materials of which the vessel is composed, and her security as regards construction, but also whatever is essential to safe and suc• cessful navigation and the conduct and completion of the voyage. The skill, competence, knowledge, and ability of the master, number, character, and effi ciency of the crew, condition of the tackle, sails, and rigging; sufficiency of the stores and general equipment, are embraced within the implied warranty of seaworthiness. By any material failure or deficiency in these requisites, the condition upon which the liability of the underwriter, in whole or in part, depends, is forfeited, and the latter thereby discharged in case of loss: Ph. Ins., sec. 696. When, therefore, the insured vessel has arrived at a particular port at which the aid of a professional pilot, or of some person possessing competent knowledge and skill in local navigation, is required as a precaution necessary to entire safety, the employment of such a person is just as requisite to seaworthiness as a competent master, reliable officers, and a sufficient crew are so in general: Id., sec. 712; Hildyard on Marine Insurance, 115; Pars. on Marine Insurance, 384; Arnould on Marine Insurance, 3d ed., 604. The obligation to obtain the aid and services of a pilot will, of course, be controlled by the law and the usage that prevail at the particular port, to or from which the entry or departure is effected. In most, if not all, civilized countries, a system of pilotage is established and regulated by law and maintained by the state. The master of a vessel would not naturally be required to make more than the ordinary and usual attempt to procure a pilot upon arriving at a port which he desired to enter. Nothing more could be demanded of him than to conform to the usual custom and practice in that respect.

As has been stated, a pilot is requisite to seaworthiness. In England the doctrine relative to the implied warranty of seaworthiness in marine insurance, is, that the warranty only comprehends the condition of the vessel at the commencement of the risk. The English rule, then, may be stated to be that the negligence of the master in failing to take a pilot on board at an intermediate stage of the voyage, though usage requires him to do so, will not discharge the insurers in case of loss, provided the ship was seaworthy when she sailed, the master and crew were originally competent, and the loss was occasioned proximately by the perils insured against: Arnould on Marine Insurance, 604; Pars. on Marine Insurance, 384, note 3; the rule is stated thus, in substance, by the commentators, upon the authority of recent English decisions: Hollingworth v. Broderick, 7 Ad. & El. 40; Sadler v. Dixon, 8 Mee. & W. 895. In these cases the precise question of responsibility for loss resulting from neglect to take a pilot on board, was not involved. They arose, however, from alleged defects in the seaworthiness of the vessel, and, as the obligation to employ a pilot proceeds upon the ground that it is a constituent element of seaworthiness, the principle is analogous

and these cases may therefore be said to modify the earlier doctrine declared in the English courts. It was held by Lord Kenyon, in 1797, in Law v. Hollingsworth, 7 T. R. 160, that the underwriters were discharged from their liability upon a policy of insurance upon a ship and cargo, homeward bound to the port of London, although a pilot had been taken on board at Orfordness, but had quitted the vessel before she had reached her moorings in the Thames. In Sadler v. Dixon, supra, Tindal, C. J., commenting upon Law V. Hollingsworth, said: "This case must be allowed to bear against the principle laid down in later authorities. The ground of the decision appears to have been, that there was no pilot on board during the time the ship was sailing up the river Thames, which was required by the statute 5 Geo. II., and that it was an implied contract upon the part of the assured, that there should be such person. This, at least, appears to be the ground of Lord Kenyon's judgment, although certainly the other two judges seem to have considered that it was a loss arising from an act of gross negligence. The decision of that case may be maintainable on the ground of an implied warranty to observe the positive requisitions of an act of parliament; but if it is to be taken as an authority, that the implied warranty on the part of the assured extends to acts of negligence on the part of the master and crew, throughout the voyage, we think it can not be supported against the weight of later authorities."

In Phillips v. Ileadlam, 2 Barn. & Ad. 380, it was held that the master of a vessel, having arrived at the port of destination, where there was a regular establishment of pilots, was not bound, absolutely, to delay his ship until a pilot should come on board, but that he was required to use no more than ordinary diligence to procure a pilot, and if none was obtained, he might attempt to enter the harbor, using his own discretion in good faith under the circumstances, and the insurers would be held responsible. The action in that case was upon a policy of insurance upon the ship from Liverpool to Sierra Leone and return. The ship arrived off the river Sierra Leone at three o'clock in the evening, and the captain then hoisted the signal for a pilot, but none having come on board at ten the following morning, he attempted to enter, and in so doing the vessel struck aground and was lost. So in Pillans v. Dalgerno, Faculty Dec. 1808 to 1810, p. 1, reported also in Sansum's Digest of the Law of Insurance, 947, the master of a ship being at Memel, slipped his cables and ran out without taking a pilot, but in crossing the bar struck and the vessel was lost, it was held, that, as the master in attempting to depart was endeavoring to avoid an embargo with which vessels lying at that port were threatened, the insurers must respond for the loss.

The doctrine which prevails in the United States is at variance with that upheld by the English authorities in relation to the implied warranty of seaworthiness. It holds it to be the duty of the assured to keep his vessel seaworthy during the different periods of the voyage subsequent to its commencement, and if, from any neglect of the owner, the vessel becomes unseaworthy, the insurers will be discharged from any loss resulting as a consequence of the want of diligence: 3 Kent's Com. 289; Arnould on Marine Ins. 606; McDowell v. Genl. Mut. Ins. Co., 7 La. Ann. 681. The American doctrine ́s qualified, however, to this extent, that unseaworthiness arising after the commencement of the voyage, has no retrospective operation, so as to destroy a just claim in respect to 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 defense, 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: 3 Kent's Com 289; Arnould on Marine Ins. 607; Paddock v. Franklin Ins. Co., 11 Pick. 227. The effect of this rule when applied to the obligation imposed upon the assured to employ pilots at certain stages of the voyage, would certainly seem to be, that the insurers would still be liable, though an entrance or offing were made without a pilot, if the loss was proximately occasioned by the perils insured against, and not directly attributable to the neglect. It may be considered, independent of what may technically constitute a breach of the implied warranty of seaworthiness, and the effect of such breach, that the master of a vessel entering or departing from a port where it is the custom to take a pilot on board will be bound so to do, or to exercise reasonable diligence to obtain a pilot; and the question, what constitutes reasonable diligence, will be qualified by the necessities under which the master was acting. In McDowell v. Genl. Mut. Ins. Co., supra, Slidell, J., speaking for the court, said: "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 the 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." This principle is followed in Van Syckel v. The Ewing, Crabbe, 405; De Pau v. Jones, 1 Brev. 437.

It is not necessary, when the circumstances are such as to bring the case within the rule making the employment of a pilot imperative, that the person into whose charge the vessel is given in going into port, should be a licensed pilot. It will be sufficient, where the contract shows no stipulation to the contrary, for the master to place the vessel in charge of a pilot familiar with the bar and channel, who had been accustomed to pilot sea-going vessels across the bar. So, where the master of a steamship bound from New Orleans to the Rio Grande, took on at the former place the captain of a lighter used at the latter, and who was familiar with the bar at the mouth of the Rio Grande, and who, upon arriving there, informed the master that it was safe to attempt to effect a crossing, the insurers were charged for the loss of the vessel: Domingo v. Merchants' Mut. Ins. Co., 19 La. Ann. 479. The rule is to be understood with the qualification, that the employment of a pilot is essential only at those ports where such is the usual and prevailing practice, usage, and custom. Where it is not customary to take a pilot on board, the captain, mate, or any other competent person may be relied upon: Keeler v. Fireman's Ins. Co., 3 Hill, 250; Maitland v. Charleston F. and M. Ins. Co., 3 Rich. 331. In McMillan v. Union Ins. Co., ante, the court held, that the employment of a pilot was not a part of the seaworthiness. "Nothing," said the court, "can enter into that which is not for the whole voyage. The business of a pilot is merely temporary. He is a part of the crew of a vessel only for a few miles or a few hours. He navigates her only occasionally, and under such circumstances it would be an abuse of terms to say, that a competent pilot was necessary to make a vessel seaworthy." The court concluded, that if from neglect to employ a pilot the vessel were lost, it would be a loss, simply, which was not within the perils insured against, and therefore not such a loss as would charge the insurers. This seems to be the better doctrine: See note, Pars. on Marine Ins. 385.

CASES

IN THE

SUPREME JUDICIAL COURT

OF

MAINE.

LINSCOTT V. MOINTIRE.

[15 MAINE, 201.]

SUIT MAY BE Brought on a PAROL CONTRACT for the sale of lands, after the same has been fully executed, and nothing remains to be done except to pay over the purchase price.

CONTRACT WHICH MAY BE PERFORMED WITHIN A YEAR is not within the provision of the statute of frauds in reference to time.

CONVEYANCE OF LAND TO ANOTHER UPON THE LATTER'S PROMISE TO SELL the same and pay over the price received above a certain sum, constitutes a sufficient consideration for such promise.

ASSUMPSIT for money had and received. Plaintiff conveyed to one Grover certain lands, receiving back an unsealed instrument, by which he promised to reconvey at any time within three years, upon being paid five hundred dollars. Just before the three years expired, defendant, at plaintiff's request, paid to Grover the sum due, and took a deed to himself, agreeing at the time to sell the land and pay over the difference between the sum received and his advances. Defendant sold the land for eight hundred dollars. Plaintiff sues for the difference and recovers verdict. Defendant appealed.

D. Goodenow, for the defendant.

Hayes and Cogswell, and J. Shepley, for the plaintiff.

By Court, WESTON, C. J. The consideration for the promise, upon which the plaintiff relies, was the sale by him of a certain interest in real estate to the defendant. If this contract of sale had been an executory agreement, there being no note or memorandum in writing, signed by the party to be charged, it would

have been void by the statute of frauds, and would therefore have constituted no legal consideration for the defendant's promise. But the consideration was executed. The plaintiff having a legal and effectual right to the reconveyance by his grantee of certain land, put the defendant by substitution in his place, and thereupon the grantee of the plaintiff, by his appointment, conveyed the land to the defendant, in pursuance of a written agreement between the plaintiff and his grantee. This was

a valuable interest available to the plaintiff, which thus actually passed to the defendant, and constituted a legal consideration for his promise. If he had agreed to pay therefor a gross sum, there could be no doubt that such a promise could be enforced at law. And the promise might be contingent or qualified, at the pleasure of the parties. In this case what the defendant was to pay for the interest, which the plaintiff had caused to be conveyed to him, depended upon the amount, which the former might realize, upon a sale of the premises. That being done, the amount to be paid became a matter of calculation, which has been settled by the jury. The sale of land, if executed, is as valid a consideration for the promise, as the payment of money: Dillingham v. Runnels, 4 Mass. 400.

In the case of Bunnel v. Taintor, 4 Conn. 568, the parties had entered into a parol agreement, by virtue of which they were to be jointly interested in the purchase and sale of real estate, and the profits were to be equally divided between them, whereupon certain estates having been bought and sold at a profit, the plaintiff sustained an action for his moiety; and it was held not to be a case within the statute of frauds. The case of Hess v. Fox, 10 Wend. 436, is not distinguishable in principle from the one before us. The defendant's testator was mortgagee of certain real estate which had been conveyed to him by deed, conditioned to be void upon the payment of a certain bond. The plaintiff subsequently executed an absolute deed and surrendered the premises, upon a parol agreement by the defendant's testator, to pay to the plaintiff the excess, which he might realize upon a sale of the land, beyond the amount of his debt. Upon a sale by the defendant, his executor, under lawful authority, for a greater sum, the plaintiff sustained an action for the excess; and the court held the statute of frauds no legal objection.

It is insisted, that the agreement was not to be performed within the space of one year, and not being in writing, was void under another clause of the same statute. The sale did not happen to be made until a year had expired; but it might have