dissenting. The defence to this suit, on a policy of insurance on cargo, is that the loss claimed did not result from the perils insured against, but was caused by the willful neglect of the master to take a pilot on entering^ the Brazos River. This, it is contended on authority, rendered the vessel unseaworthy, and exonerated the underwriters.
The cause of the loss, as stated in the protest of the master and crew, evidently taken from the log book, was that the vessel attempted to cross the bar of the Brazos River under sail, but while crossing it the wind died away, and before the anchor could be let go, the current, which was running six miles an hour, swept the schooner on the Southwest point, where she commenced thumping; could not be got off, and sunk. The cargo, consisting of heavy machinery and brick, belonging to the plaintiffs, who were not owners of the vessel, was lost. The immediate cause of the loss was the dying away of the wind at the critical moment of crossing the bar, the rapidity of the current of the river over the bar forcing the vessel on a point where she thumped and sunk. These were perils of the sea insured against, and the loss must be borne by the' insurers unless they can exonerate themselves from liability by the proof of facts having that effect. The burden is on them, and they undertake to show, that though the proximate causes of the loss were perils insured against, yet these were traceable to neglect and misconduct of the master in not having a pilot, where it was customary and necessary, thus rendering, in the language of books of authority, the vessel unseaworthy.
Now, the only two witnesses to the facts, which actually occurred, are the master and a seaman. Both state, that the master made all reasonable efforts to obtain a pilot, but without success. Their testimony, in this respect, is not in contradiction to the log-book and protest, but certainly makes additions to them, and is thereby, to some extent, impaired. Still the testimony is uncontradicted, while-the defendants, by examining the pilots at the Brazos, could have entirely destroyed it if untrue. Being a question of fact, and with regard to which the district court gave full credence to the testimony of the witnesses, I think we should yield to his judgment as to the facts, and if so, to cpnclude that the loss was caused by vis major, the effect of force.
If we take it for granted that the log-book contains the whole of the facts, and that the master made no efforts to obtain a pilot, the case is still, in my judgment, on the meagre testimony before us, against the defendants. It is true three insurance officers, of New Orleans, have been examined in their behalf. Two were never at the Brazos, one has passed over the bar twice. They state that the bar is a shifting one, the channel changeable, that they do not consider it safe to attempt to cross without a pilot, and would not insure a vessel going to the port if it was understood that the captain was to be his own pilot. These are the opinions of witnesses who have no practical knowledge on the subject, for Mr. Wilder probably crossed the bar only as a passenger. They do not refer to the circumstances of this case. In it we are obliged to believe the master was a mariner by profession. It appears he was in command of a small schooner of fifty-five tons, which might have safely passed the bar, although a vessel of two hundred tons could not. The water on the bar was smooth and the wind faff. He was the owner of one-fourth of his vessel, and it was uninsured. Under such circumstances he attempted to cross the bar *690himself. I cannot doubt that he exercised ordinary prudence, and that in the . best exercise of his judgment he believed that he could cross the bar with his small schooner without a pilot, or he would not have risked his own property rather than pay three or four dollars pilotage.
The defendants have offered no proof, but the event, to show an entire want ilf judgment in the master. Success is undoubtedly the best criterion by which to test the judgment of men in every thing, but it is not so invariably correct as to dispense with the proof of bad judgment in case of misfortune. For the want of ordinary care and prudence the master would, perhaps, have forfeited the insurance of his owners on the vessel. But, in my opinion, the shippers and insurers of cargo forfeit their insurance only by their own negligence, and not by negligence on behalf of the master. Thus, the plaintiffs shipped, and insured their property, on a vessel which, it is not disputed, was seaworthy and properly manned when she sailed. It was a sufficient compliance with their warranty as to the master, that he possessed a general good character for care and skill in his profession. Perhaps, as insurers of cargo only, and in the very port where the insurance company was established, even an inquiry as to the general good character and capacity of the master is immaterial, because the insurers are bound to a knowledge on these subjects as well as the insured, and in fact take cai’e, by officers, to obtain the same knowledge with the assui'ed. As to the latter, he often ships his freight on the vessel by the master named, or whoever may go as master. The strict scrutiny of this subject is not required, as there is not the slightest impeachment of the general character or capacity of the master at the commencement of the voyage. And it is to be presumed to have been good until the contrary is shown by evidence. As, therefore, it is to be taken for granted, in this case, that the master possessed a general good character for care and capacity, when the cargo was shipped, the shippers must be exonerated from negligence or want of prudence in shipping the cargo on board his vessel.
After the vessel sails, I do not think the insurers of a cargo liable to loose their insurance for the errors of judgment, mistakes, or even negligence of the master. The general rule laid down by elementary writers, as Phillips and even Chancellor Kent, that the failure to take on board a pilot, where it is customary, renders the vessel unseaworthy and avoids the policy, must be subject in practice to this distinction in favor of the insurers of cargo, who have no interest in the vessel, or it would be a most unreasonable rule.
Mr. Arnould states, that it is the rule in England that the assured warrants the vessel as being seaworthy at the commencement, and not during the voyage ; but that it is settled in the United States that she must be kept seaworthy during the voyage, and thinks the English rule most eligible. As far as I can judge, there is some diversity of decisions in both countries, growing out of the extremely varying circumstances of particular cases. And, perhaps, the real error consists in elementary writers classing together cases and things that are dissimilar, and attempting to subject them to a general rule.
Thus, the unseaworthiness of a vessel, and the neglect to employ a pilot, are two different things, and not necessarily subject to the same general rule -as to their effect upon insurance. The neglect of the master to employ a pilot, seems more assimilated to the neglect to set the proper sails, or to steer the right course, or to keep the necessary watch, or cast anchor when approaching breakers.
*691Now, for all losses, the proximate cause of which is one of the enumerated risks, although remotely caused by negligence or unskillfulness of this character, it has over and over again been decided in England that the underwriters are responsible. The maxim causa próxima non remota spectatur, invariably governs. Bush v. The Royal Exchange Company, 2 Barnwell and Alderson’s Rep. 73. Walker v. -, 5 Ib. 173. Bush v. Poulland, Barn and Cresswell Rep. 219. And in this country the Supreme Court of the United States have fully adopted the same doctrine in three cases.
In the case of the Patapsco Insurance Company v. Coulter, I consider analogous in facts and principle to the case under consideration. The insurance was upon a cargo of flour, from Philadelphia to Gibraltar. The vessel was burnt by the negligence or carelessness of the master1, in Gibraltar, and the cargo was lost. The Supreme Court of the United States, in so many terms, decided that the underwriters were not discharged, it being admitted that the loss of the flour was caused by the negligence or carelessness of the master. The Patapsco Insurance Company v. Coulter, 3 Peters, 222. The Columbia Insurance Company of Alexandria v. Laurence, 10 Peters, 507. Waters v. The Merchants’ Louisville Insurance Company, 1 Peters, 225.
This last case was a river risk, upon a steamboat, but declared by the court to be assimilated to and governed by principles applicable to marine risks. The court, after an elaborate opinion, came to the conclusion that the policy covers a loss of the boat by fire, caused by the negligence, carelessness or unskillfulness of the master and crew of the boat, or any of them, and that pleas to the effect that the fire by which the boat was lost, was caused by the carelessness, neglect or unskillful conduct of the master and crew of the boat, was not a defence to the action, by the owners on the policy, or sufficient in law to bar their recovery of the loss. The whole scope of the opinion goes as far as any English decision, and further than I should be willing to go, for in effect the owners of the boat were indemnified for a loss caused by their own agents, and consequently by themselves.
It is by no means necessary to go so far as the Supreme Court of the United States have gone in this case, to support the claim of the assured in the case under consideration. They insured cargo, not on their own vessel. It is alleged to have been lost by the neglect and carelessness not of their agents, but of the master of a vessel which did not belong to them, and who was not under their control. His general character for care and skill is not attacked. At most, as has been seen, his general character is all that could be expected from the assured or that he bound himself to warrant, and not all the particular acts of the master on consequences of his omissions.
The fact that barratry is generally excepted from the risks insured when the assured is an owner of the vessel, though not excepted when he is not an owner, shows by analogy that there should be a distinction between the liability of the insurer for the negligence or unskillfulness of the master as to the loss of the vessel, and the loss of the cargo. As to the latter, it appears to me nothing but a general character, at the shipping port, for negligence and unskillfulness, and that unknown to the insurers should exonerate them.
There is another consideration in this case which'is conclusive to my mind. By the very terms of the policy, the plaintiffs are insured against the barratry of the master. Surely, since the parties .by express contract, agreed to insurance against the crimes- of the master, they, by implied contract, intended *692insurance against his particular acts of negligence or unskillfulness. Such an implied agreement has been inferred, from insurance against barratry, in several decisions.
In the case of Lowe v. Hollinsworth, on which the defendants principally rely, it is probable the insured were owners of both ship and cargo, and if so, the master was agent of both. He violated a statute of George III, which expressly required that vessels should be navigated on the river Thames, under the direction of a competent pilot, because, as declared by the statute, the navigation was intricate and dangerous. No discretion was left to the master, and his employers were condemned to bear the consequences of his violation of law. So in the other case relied upon, of Stanwood v. Rich, the insurance was on the vessel, and Chief Justice Parker left it to the jury to decide whether the failure of the master to take a pilot, in the harbor of Boston, was such negligence as would discharge the underwriters. He did not, indeed, put their discharge on the ground that he was the agent of the insured, and that, therefore, the principals must suffer for the negligence of their agent; but it appears to me this was the true ground. I can see no more reason for discharging the underwriters from insurance on cargo on account of the negligence of the master, than for discharging the insurance on the stock of a store, on account of the negligence of the owner of the house, which caused the fire and loss, and vice versa.
For these reasons, I think the judgment of the district court should be affirmed.
Application for re-hearing refused.