Opinion of the Court, per Haight, J.

[Vol 147.

require coastwise, sca-going steam vessels not sailing under register, when under way, except on the high sea, to be under the control and direction of a pilot licensed by the inspectors of steamboats. A failure to comply with the provisions of the statute subjects the offender to a penalty of $100.00 for each offense. This statute is founded upon principles of pub lic policy, and is in aid of the owners and shippers as well as the passengers, and is designed to furnish qualifiea and competent pilots to masters of vessels arriving from foreign ports, and thus prevent the intrusting of a vessel and cargo to incompetent and unqualified persons. The position of a pilot is one of great responsibility, and his duties at times are grave and important, requiring a skilled, trusty and experi enced man. Occasions, however, may arise when it is not convenient or possible to procure the services of a licensed government pilot, and the master may be compelled to proceed without such a pilot. It will be observed that the statute does not impose a liability for damages sustained for a failure to employ a licensed pilot. It only imposes the penalty mentioned, which may be excused when the master has discharged his whole duty. The General Term speaks of the statute, and we think aptly, as not unlike the statutes or municipal ordinances prescribing the speed of trains in thickly settled localities, a violation of which is evidence but not proof of negligence, and being evidence only may be rebutted.

Parsons, in his work on Marine Insurance, volume 1, at page 384, says: "So as to pilotage, the ship is unseaworthy if she is without a pilot where usage and the reason of the case require that she should have one, whether in entering or leav ing a port, and yet if a vessel sails to a port where it is not always possible to obtain a pilot, then the law only requires that the master should use all reasonable efforts to obtain one, and if such efforts are made, the want of success does not make the ship unseaworthy in any sense which discharges the insurers. If a pilot be necessary and a person, falsely representing himself as one, is in good faith and without gross negligence received as such, there is no breach of the war

N. Y. Rep.]

Opinion of the Court, per HAIGHT, J.

ranty of seaworthiness, nor is there if the master or some one else on board can direct the ship over the pilotage grounds and has sufficient skill to perform the duty as a pilot should perform it, nor should we say on general principles that the neglect to receive a pilot where one was required to be taken by a law of the port necessarily made the ship unseaworthy."

In Flanigen v. The Washington Insurance Company (7 Penn. St. 306) ROGERS, J., after referring to the act of Congress and the Pennsylvania statute with reference to pilots, says: "We have come to the conclusion that there is nothing in the statutes which makes it obligatory upon the owner or master of a vessel, whether engaged in the foreign or coasting trade, to employ a pilot. This proposition being thus established there is an end of the argument based as it is on the supposition that the act is imperative. The argument is founded on the hypothesis that there is a statutory unseaworthiness prescribed, that failing or omitting to comply with the provisions of the act is a breach of an implied warranty in the policy which avoids it, and, further, that there is a penalty imposed which renders the voyage illegal. It is

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not my intention to deny that it is part of the implied warranty of seaworthiness that there should be on board the vessel at the time the risk commences not only a sufficient crew and a master of competent skill and ability to navigate her, but if she sails from a port where there is an establishment of pilots, and the nature of the navigation requires one, that the master should take a pilot on board. (Phillips v. Headlam, 2 Barn. & Ad. 380.) This as a general proposition is true, with some exceptions. It is not necessary in all cases to take a pilot without regard to the burden of a vessel or the nature of the trade. In 1 Emerigon, 402, it is laid down that a captain who knows the place to which he is bound is not obliged to employ a coast pilot. These matters must be regulated by the custom of the port, and hence the necessity of inquiring into the custom, which can be done only through the medium of a jury. Is it customary or necessary for a vessel engaged in the coasting trade of the burden of the one in question to take

Opinion of the Court, per HAIGHT, J.

[Vol. 147.

a pilot when the master, in the opinion of the owner, has competent skill to conduct her to the ocean? That the river and bay of Delaware is pilot ground for all vessels engaged in the foreign or coasting trade is most true, but it is made so, not by force of the act of 1803, but by the usage of the trade or port. * * That the usage may be modified by statute may be conceded, but not to the extent of creating a statutory seaworthiness."

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In the case of Boston Towboat Company v. The Charlotte (51 Federal Reporter, 455) there were cross libels arising from a collision in the Patapsco river, between the coal barge Lone Star in tow of the steam tug Mercury and the steamer Charlotte. It was contended that presumption of fault against the tug was to be drawn from the fact that her master did not have a pilot licensed for the Chesapeake bay and its tributaries, but it was held that the master of the tug was competent for the duties he was performing, and that the fact that he did not have a pilot's license was immaterial. In The Blue Jacket (144 U. S. 371) a collision occurred between the ship the Blue Jacket and the steam tug Tacoma near Ediz Hook light, in the straits of Fuca, in the territory of Washington. It was held that the tug was not at fault for the reason that its mate had no license, he being competent and having faithfully performed his duties. (See, also, McDowell v. General Mutual Insurance Company, 56 American Decisions, 619; Hays v. Millar, 18 American Reports, 445; Keeler v. Fireman's Insurance Company, 3 Hill, 250; Carroll v. Staten Island Railroad Company, 58 N. Y. 126; Patterson's Railway Accident Law, section 40.)

Whilst we do not wish to be understood as approving of all that has been said in the cases referred to, it is quite apparent that the general trend of the authorities is to the effect that a vessel is not as a matter of law unseaworthy because it is navigated by an unlicensed pilot, provided he is competent, experienced and otherwise qualified, and, whilst we think that the requirements of the statute are wholesome and should be faithfully complied with, yet the rule adopted by the courts

in the cases referred to appears to us to be reasonable and just,
and has our assent. It consequently follows that, unless the
stranding of the barges was owing to the incompetency of the
plaintiff's pilot, or that such stranding would not have occurred
if a licensed pilot had been on board, the defense of the
defendants must fail. Upon these questions the evidence is to
some extent conflicting. The facts have been determined by
the jury and its verdict has been approved by the General
Term. The evidence bearing upon the stranding after the
barges had passed Handkerchief light vessel, and the testi-
mony bearing upon their grounding whilst entering Boston
harbor, have been considered and discussed in the courts
below, where the facts were open for consideration. It is
sufficient to here say that the evidence was of such a charac-
ter as to justify the submission to the jury of these questions.
of fact, and that the evidence is sufficient to sustain its verdict
to the effect that the accidents were in consequence of the
perils of the sea, and not because of the failure to employ a
competent pilot.

The judgment should, therefore, be affirmed, with costs.
All concur.

Judgment affirmed.

ALBERT BAER, Appellant, v. CHARLES W. BONYNGE,

Respondent.

AGREEMENT TO GIVE A LEASE-PRINCIPAL AND AGENT. An action cannot be maintained to recover damages as for a breach of an agreement by the defendant to give a lease of a building, when the facts show that the building was not owned by the defendant; that the only contract contemplated between the parties was one between the plaintiff and the owner of the building; that the attitude of the defendant was that of the owner's adviser, upon whose judgment as to the terms of the lease the owner was expected to rely; and that the defendant did not bind himself personally, conceding that he might have done so although known to be the agent of the owner and acting in that capacity.

Reported below, 72 Hun, 33.

(Argued October 18, 1895; decided November 26, 1895.)

APPEAL from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made June 19, 1893, which overruled plaintiff's exceptions ordered to be heard in the first instance at General Term and dismissed the complaint.

The nature of the action and the facts, as stated by Mr. Justice FOLLETT in connection with the opinion at General Term, are as follows:

This action was brought for the recovery of damages resulting from the defendant's refusal to execute a lease to the plaintiff. Amos R. Eno, the former owner of No. 922 Broadway, leased it until May 1, 1891, to John W. Salter, who assigned his lease to the plaintiff, under which the plaintiff occupied the premises for a butcher's shop and market for four years. Whether he occupied the whole or but part of the premises does not appear. At some time prior to 1890, Eno conveyed the premises to Rodie S. Bonynge, the defendant's wife. The plaintiff testified that five or six months before October 27, 1889, which would be in May or June, he had a conversation with defendant about a new lease, in which it was stated, "I (plaintiff) told him (defendant) I wished to renew the lease, as I wished to make some alterations about the building, and if I would not get the lease I would not do it; so he said, 'You can go right ahead. No one will get the lease but you.' I said, 'I am never sure of anything unless I have it. I would rather have it in my pocket than wait for it.' He said, 'You can take my word for it. That is all you will have, my word; you can go ahead and paint the house and do all the repairs you want.' So he said, 'You can go ahead with all the alterations you want to do.' I said I wanted to put a new front in the building, as it was getting a kind of old now and bad, and he said, 'You can go right ahead.' So I went and got the house painted, and got the roof fixed, and got the sidewalk all around fixed, and put the building in good condition."

September twenty-fourth defendant wrote the plaintiff as follows: