Waters v. Merchants' Louisville Insurance Company
36 U.S. 213

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U.S. Supreme Court

Waters v. Merchants' Louisville Insurance Company, 36 U.S. 11 Pet. 213 213 (1837)

Waters v. Merchants' Louisville Insurance Company

36 U.S. (11 Pet.) 213

Syllabus

Insurance. The steamboat Lioness was insured on her voyages on the western waters, particularly from New Orleans to Natchitoches on Red River and elsewhere, "the Missouri and Upper Mississippi excepted," for twelve months. One of the perils insured against was "fire." The vessel was lost by the explosion of gunpowder.

"On the trial of the cause, the judges of the Circuit Court of Kentucky was divided in opinion on the following questions, which were certified to this Court:"

"1. Does the policy cover the loss of the boat by a fire, caused by"

the barratry of the master?

"2. Does the policy cover 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?"

"3. Is the allegation of the defendants in these pleas, or any of them, to the effect that the fire by which the boat was lost, was caused by the carelessness or unskillful conduct of the master and crew, a defense to this action?"

"4. Are the pleas of the defendant, or either of them, sufficient?"

A loss by fire, when the fire was directly and immediately caused by the barratry of the master and crew as the efficient agents when the fire was communicated and occasioned by the direct act and agency of the master and crew, intentionally done from a barratrous purpose, is not a loss within the policy if barratry is not insured against.

If the master or crew should barratrously bore holes in the bottom of a vessel, and she should thereby be filled with water and sink, the loss would probably be deemed a loss by barratry, and not by a peril of the seas or of rivers, though the water should cooperate in producing the sinking.

The doctrine as applied to policies against fire on land has for a great length of time prevailed that losses occasioned by the mere fault or negligence of the assured or his servants, unaffected by fraud or design, are within the protection of the policy, and as such are recoverable from the underwriters. This doctrine is fully established in England and America.

It is a well established principle of the common law that in all cases of loss, we are to attribute it to the proximate cause, and not to the remote cause. This has become a maxim to govern cases arising under policies of insurance.

In the case of Columbia Insurance Company v. Lawrence, 10 Pet. 507, this Court thought that in marine policies, whether containing the risk of barratry or not, a loss whose proximate cause was a peril insured against is within the protection of the policy, notwithstanding it might have been occasioned remotely by the negligence of the master and mariners. The Court has seen no reason to change that opinion.

As the explosion on board the Lioness was caused by fire, the fire was the proximate cause of the loss.

If taking gunpowder on board a vessel insured against fire was not justified by the usage of the trade, and therefore was not contemplated as a risk by the policy, there might be great reason to contend that if it increased the risk, the loss was not covered by the policy.

Page 36 U. S. 214

The plaintiff, a citizen of the State of Louisiana, on the 12th day of September, 1832, caused insurance to be made by the Merchants' Louisville Insurance Company at the City of Louisville, in the State of Kentucky, in the sum of $6,000, on the steamboat Lioness, her engine, &c., to navigate the western waters usually navigated by steamboats &c, the assured having the privilege of placing competent masters in command at any time, the insurance to continue for twelve months, until 12 September 1833. The perils insured against were those

"of rivers, fire, enemies, pirates, assailing thieves, and all other losses and misfortunes which shall come to the hurt or detriment of the steamboat, her engine, tackle and furniture, according to the true intent and meaning of the policy."

An action was instituted in the circuit court on this policy by William Waters, the assured, to November term 1836, and the plaintiff averred in the declaration an interest in the steamboat Lioness at the time of the insurance and up to her loss of $16,000; that the said steamboat Lioness, her engine, tackle and furniture, after the execution of said policy and before its termination, to-wit, on 19 May, 1833, on Red River about one mile below the mouth of Bon Dieu River whilst she was on her voyage from New Orleans to Natchitoches, Louisiana, on Red River were, by the adventures and perils of fire and the river, exploded, sunk to the bottom of Red River aforesaid, and utterly destroyed, so as to cause and make it a total loss. And the plaintiff averred that said steamboat Lioness was, at the time of the explosion, sinking and destruction aforesaid, by the perils aforesaid, sufficiently found in tackle and appurtenances thereto, and completely provided with master, officers and crew, and in good order and condition, and perfectly seaworthy. The declaration also averred that a regular protest of the manner in which the loss of vessel took place was made, and the same, with proof of the plaintiff's interest, were delivered to the defendants. To this declaration, the defendants filed the following pleas:

1. That the officers and crew of the Lioness, and the time of her explosion and sinking, so negligently and carelessly conducted themselves in managing and attending to the safety of the cargo on board, that

Page 36 U. S. 215

the steamboat was, by means of fire negligently and carelessly communicated to gunpowder in the hold by the officers and crew, blown up and destroyed.

2. That the Lioness was loaded in part with gunpowder, and that the officers and crew, or some of them, carelessly and negligently carried a lighted candle or lamp into the hold, where the powder was stored, and negligently handled the candle or lamp at the time that the powder was exploded, and thereby produced the explosion and destruction of the said steamer.

3. That the Lioness was in part loaded with gunpowder, and the same was so unskillfully, negligently and carelessly stowed away in the boat by the officers and crew, or some of them, that the gunpowder took fire by reason of the said unskillfulness, negligence, and carelessness, and the boat was consequently lost and destroyed by explosion.

4. That the Lioness received and had on board a quantity of gunpowder at the time of the explosion, which increased the risk of the insurers, contrary to the true intent and meaning of the policy, by which the insurers were discharged from the obligations of the policy.

5. That the loss of the Lioness was caused by the officers and crew, or some of them, carelessly and negligently carrying a lighted candle or lamp into the hold; and so negligently or carelessly carrying the same, as the explosion of the vessel was thereby produced.

6. That the loss of the boat was caused by the conduct of the officers, managers and crew of the boat in taking and receiving on board large quantities of gunpowder and by carelessly keeping the same, in consequence of which the gunpowder became ignited while on board the boat, and by its explosion caused her loss and destruction. To these pleas the plaintiff demurred, and the defendants joined in demurrer.

On the argument of the cause, the following questions and points occurred upon which the judges of the circuit court were divided in opinion, and the same, at the request of the defendants, were stated and ordered to be certified to this Court.

1st. Does the policy cover a loss of the boat by a fire, caused by the barratry of the master and crew?

2d. Does the policy of insurance cover a loss of the boat by fire

Page 36 U. S. 216

caused by the negligence, carelessness or unskillfulness of the master and crew of the boat, or any of them?

3d. Is the allegation of the defendants, in their pleas, or either of them, to the effect that the fire by which the boat was lost was caused by the carelessness or the neglect or unskillful conduct of the master and crew of the boat, a defense to this action?

4th. Are the said pleas, or either of them, sufficient?

Page 36 U. S. 218

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