Under a policy insuring against the usual perils of the sea,
including barratry, the underwriters are not liable to repay to the
insured damages paid by him to the
Page 55 U. S. 352
owners of another vessel and cargo, suffered in a collision
occasioned by the negligence of the master or mariners of the
vessel insured.
A policy cannot be so construed as to insure against all losses
directly referable to the negligence of the master and mariners.
But if the loss is caused by a peril of the sea, the underwriter is
responsible, although the master did not use due care to avoid the
peril.
It was an action of assumpsit brought by Sherwood against the
General Mutual Insurance Company upon a policy of insurance dated
New York, 17 October, 1843, by which the company insured Sherwood
to the amount of $8,000, for the account of whom it might concern,
loss payable to him, upon the brig
Emily, from the 17th
October, 1843, at noon, until the 17th October, 1844, at noon, the
vessel being valued in the policy at $16,000.
This policy was effected for the benefit and to protect the
interest of Frederick Sherwood and Abraham Sherwood, part owners of
said vessel.
On the 13th March, 1844, the brig sailed from Charleston with a
cargo of merchandise, bound for New York, being at the time
provided with a skillful and experienced master, experienced and
skillful mates, and a competent crew, and was in all respects
seaworthy for the voyage.
About 5 o'clock in the afternoon of Tuesday, 19 March, a
licensed pilot boarded them and took the command and management of
the vessel. The wind being unfavorable, the brig ran, close-hauled,
heading north and north by east, until the pilot considered himself
up to the point of the Romer Shoals; he then tacked and stood in
for Sandy Hook, heading to the southward and westward,
close-hauled. Between 7 and 8 o'clock at night, the pilot gave
orders to go about; in attempting to execute this order, the brig
mis-stayed, and the pilot then gave orders to wear ship. At this
time, and whilst in the act of wearing, being very close to the
shore, the rigging of the vessel having become entangled, and the
crew being occupied with the maneuvering of their vessel, the first
mate, who was on the top-gallant forecastle, saw a schooner very
close to them. Confused by this sudden appearance, his attention in
keeping a sharp lookout having been distracted by his attending to
the working of the vessel, he, in this sudden emergency, exclaimed
"Helm hard down! luff! luff!" The man at the wheel obeyed, and
almost instantaneously the brig struck the schooner, which proved
to be
The Virginian, bound from Norfolk, with a full cargo
of merchandise for New York. The order given by the mate to "luff"
was erroneous.
Page 55 U. S. 353
The brig
Emily was injured by the collision to the
amount of $300; the schooner
Virginian was so much injured
that she sunk, and with her cargo was totally lost.
On 26 March, 1844, the owners of the schooner filed their libel
in the District Court of the United States for the Southern
District of New York, against the brig
Emily, claiming
that she was specifically liable for the loss and injury occasioned
by the libel.
The owners of the
Emily filed their answer, denying
that the collision was occasioned by the fault of those in charge
of her, and imputing the blame to the crew of the
Virginian. On the 12th October, 1845, the cause was
brought to a hearing and witnesses examined on both sides.
On 22 April, 1845, Judge Betts pronounced his opinion to be that
the brig
Emily was to leeward of the
Virginian
when the latter was first seen; that no sufficient and proper
lookout was kept on board her at the time; that the intermission,
for the moment, of their precautionary vigilance on board the
Emily, might very naturally spring out of a confusion
likely to arise from the failure of the vessel to come round to the
wind, her dangerous proximity to the shore, the entanglement of
some of the running rigging which impeded her maneuver, and the
distraction these circumstances were calculated to produce in the
attention of the mate, who, at the moment, appeared to have been
the only one acting as lookout forward; but that these
circumstances did not relieve the vessel from maintaining these
precautions, and from the consequences of the omission to do so;
and the judge accordingly held that the collision occurred by the
negligence or fault of the brig. He decreed in favor of the
libellants for the value of the schooner
Virginian, and of
so much of the cargo as belonged to her owners. It was referred to
the clerk to ascertain and report the amount of the loss and
damage. The cause came on to be heard on the 3d of June, 1845, upon
the clerk's report and exceptions thereto. The court ordered and
decreed, that the libellants recover their damages by means of the
premises,
viz., $5,250 90/100, with their costs, and that
the brig
Emily be condemned for satisfaction thereof; the
libellants' costs were taxed at $704 90/100. On 3 July, 1845, the
owners of the
Emily appealed to the Circuit Court of the
United States for the Southern District of New York, and in
November, 1846, the appeal was argued before MR. JUSTICE
NELSON.
On 6 April, 1847, judge Nelson delivered his opinion and found,
upon the proofs, in substance, that the
Virginian was not
in fault; that the mistaken order of the mate of the brig to the
man at the wheel, in connection with the derangement of
Page 55 U. S. 354
the running rigging of the vessel, and the confusion on board
from her mis-staying a few minutes before, had produced the
collision. The circuit court affirmed the decree of the district
court, with costs. This decree was settled by compromise, and upon
payment by the owners of a sum less than the decree, it was
satisfied. Early notice of the pendency of the action in the
district court, and also of the appeal to the circuit court, was
given to the Mutual Safety Insurance Company, with a request that
they would unite in the defense, or take such measures as they
might deem proper.
Owners of other parts of the cargo lost by the collision, filed
their libels against the
Virginian, which, after the
decrees above mentioned, were settled by compromise; other claims
were also made, and settled by compromise; in every instance, the
sum paid being less than the claim. On 23 August, 1847, the owners
of the brig
Emily, having previously presented to their
various underwriters preliminary proofs of the loss, copies of the
proceedings in the district and circuit courts, and of the payment
and settlement of the demands aforesaid, commenced suits upon the
policies of insurance, in the circuit court of the United States.
The declaration filed in the present action contains two special
counts, and the common money counts.
The special counts, set forth all the facts and circumstances
with great particularity.
The defendants filed demurrers to each of the special counts,
assigning as cause, that neither of the said counts showed any loss
or damage by any peril covered by the policy of insurance. The
plaintiff below joined in demurrer.
The cause was argued in April, 1848, before his Honor, MR.
JUSTICE NELSON, and the Hon. Samuel R. Betts. judgment was given
upon the demurrer in favor of the plaintiff below. The defendants
did not interpose any other answer to the two special counts, but
to the common counts III, IV, V, and VI they pleaded the general
issue.
The court having decided the demurrers, ordered the damages to
be assessed under the special counts. In May, 1849, the jury
assessed the plaintiff's damages at $4,526 34/100. Judgment was
signed 5 June, 1849.
Upon the assessment of the damages, the defendant's counsel
prayed the court to instruct the jury:
"1. That the general objection to the recovery of the plaintiff
was that [it] is apparent, on the face of the declaration, that the
loss claimed was not occasioned by a peril insured against, but was
to be attributed solely to the gross negligence of the agents of
the assured, and therefore, that the loss was either an exception
from the terms of the policy, or was not covered by them at all.
"
Page 55 U. S. 355
"2. That the rule
'causa proxima non remota spectatur,'
in its proper application, relieves the defendants from all
liability; since the proximate cause here was, according to the
decree of the district and circuit court, 'the fault of the
Emily.' The collision by itself did not create the
liability to pay. The want of care, skill, and vigilance on the
part of the master and crew of the
Emily were to be
superadded to the collision."
"3. That if the negligence and fault of the assured, and not the
collision, were the proximate cause of the loss, such fault and
negligence in this case, without which the decree would not have
been made, should certainly excuse the underwriters."
"4. That even if the insurer is liable for the amount of the
claim against the
Emily for the loss of the schooner, it
does not follow that he is also liable for the loss of the cargo on
board the schooner
Virginian. No case has yet carried the
liability of the underwriter to this extent."
"5. That the cost of defending the suits are not chargeable upon
the underwriters."
"6. That the counsel fees to the advocate are clearly
inadmissible."
Whereupon his honor the judge charged the jury:
"It appeared from the evidence that the brig
Emily
sailed from Charleston for New York on the thirteenth day of March
in the year 1841 with a cargo of cotton and other merchandise; that
on the afternoon of 18 March aforesaid, being near Barnegat, she
took aboard a licensed pilot, and proceeded towards New York, the
wind being boisterous, and blowing in flaws; that between 7 and 8
o'clock in the evening she stood over for the Romer Shoals,
close-hauled on a wind, heading for Sandy Hook. Finding that the
brig could not fetch in to the Hook upon that tack, and having run
as close to the beach as he deemed prudent, the pilot gave orders
to tack ship; in consequence of the maintopsail-brace being slacked
the vessel did not go about, and orders were then given by the
pilot to wear ship, and whilst in the act of wearing, the mate of
the
Emily discovered a sail close by, which proved to be
the schooner
Virginian, bound for New York, with a cargo
on board; the mate cried out, sail ahead! but almost immediately
thereafter the brig struck the schooner and sank her, with her
cargo. The owners of the schooner
Virginian filed their
libel in the District Court of the United States for the Southern
District of New York, before referred to, against the brig
Emily, alleging that the collision was occasioned by the
fault and mismanagement of those having charge of the
Emily. An answer was filed by the owners of the latter,
denying that the collision was properly attributable to the
Emily; and, on the contrary, alleging that it
Page 55 U. S. 356
was occasioned by the fault and unskillfulness of those on board
of the schooner; proofs were taken in the district court, and the
cause having been heard upon the pleadings and proofs, an
interlocutory decree was pronounced therein on the twenty-second
day of April, in the year 1845, whereby, after reciting that it
appeared to the court that the said collision, and the damages and
loss incurred by the libellant in consequence thereof, occurred by
the negligence or fault of the said brig
Emily, it was
considered that the libellants were entitled to recover the damages
by them sustained thereby, and by which decree a reference was
ordered, to ascertain the value of the said schooner
Virginian, her tackle &c., at the time of the
collision, and of the cargo then on board of her, belonging to the
libellants, and the amount of the loss in the premises sustained by
the libellants by means of such collision; and afterwards, the said
cause having again been heard upon exceptions to the report, and
the proofs and allegations of the respective parties, a final
decree was pronounced thereon on the seventh day of June, in the
year 1845, whereby it was ordered, adjudged, and decreed, by the
said district court that the libellants recover in the said action
their damages, by means of the premises, the sum of five thousand
two hundred and fifty-four dollars and seventy cents, together with
their costs to be taxed, and that the said brig, her tackle and
apparel, be condemned for satisfaction thereof, which said costs of
the libellants were afterwards duly taxed at $704.96."
"From this decree an appeal was taken by the owners of the brig
Emily to the Circuit Court of the United States for the
Southern District of New York, in the second circuit, and after
hearing the proofs and the arguments of counsel, the court affirmed
the decree of the district court, with the costs of the respondents
to be taxed. After the decision of this Court had been pronounced,
another libel was filed by the owners of a portion of the cargo
lost on board the
Virginian, against the brig
Emily, and claims were made, and libels threatened by
others of the shippers of the cargo lost on board of the schooner,
against the owners of the
Emily, which action and claims
by the owners of the said cargo were compromised and settled by the
owners of the
Emily. That if they should find, upon the
evidence, that, at the time of sailing from Charleston, the brig
Emily was a seaworthy vessel, properly equipped for the
voyage to New York, and that she had on board a skillful master,
and a sufficient and competent crew, the defendants are liable upon
the policy given in evidence for the one-half of the loss to the
brig
Emily, arising from the collision with the schooner
Virginian, not exceeding the sum insured, notwithstanding
that it was occasioned by, or resulted from, the fault of the
pilot, or of
Page 55 U. S. 357
the master and crew of the brig, either from want of keeping a
sufficient lookout or from mismanagement of the vessel."
The direct and immediate consequence of the collision was that a
lien was created on the brig in favor of the owners of the
Virginian and of the owners of the cargo on board of her
to the extent of the value of the schooner, and of the cargo that
was destroyed by the disaster, and the plaintiff is entitled to
recover from the underwriters not only the cost of the actual
repairs of the injury done to the brig, but also the several sums
that her owners have actually and in good faith paid to the owners
of the schooner and of the cargo lost with her in order to
discharge their vessel from the liens created by the said
collision; that the plaintiff is also entitled to recover from the
underwriters on the brig the actual expenses and costs, including
reasonable advocate's fees, necessarily incurred in the defense of
the brig from the aforesaid claim.
The policy of insurance in this case is subscribed for $8,000,
the vessel being valued therein at $16,000; it was therefore an
insurance upon one-half of the vessel, and the defendants are
consequently liable for one-half only of the loss and damage
sustained by the assured in consequence of the said collision which
the jury shall find, upon the evidence, was actually and properly
paid by the owners of the
Emily in order to relieve their
vessel.
The counsel for the defendant then and there excepted to said
charge, so far as the same differed from or did not conform to the
instructions prayed for by him, as above.
The jury thereupon rendered a verdict for the plaintiff, for
four thousand five hundred and thirty-six dollars and thirty-four
cents damages, and six cents costs.
And because the said several matters so offered and given in
evidence, and insisted upon by the defendants aforesaid, and the
charge of the said judge, and the said exceptions taken to the
same, do not appear by the record of the verdict aforesaid, the
said defendants have caused the same to be written on this bill of
exceptions, to be annexed to such record, and have prayed the said
judge to set his hand and seal to the same. Whereupon the Hon.
Samuel Nelson, the associate Justice before whom the said issues
were tried, and said exceptions taken, and one of the judges of
said circuit court, hath hereto set his hand and seal, this
twenty-eighth day of November, in the year of our Lord one thousand
eight hundred and fifty-one.
Upon this bill of exceptions, and the judgment of the court upon
the demurrers, the case came up to this Court.
Page 55 U. S. 361
MR. JUSTICE CURTIS delivered the opinion of the Court.
The action was assumpsit on a time policy of insurance
subscribed by the plaintiffs in error upon the brig
Emily
during one year from the seventeenth day of October, 1843, for the
sum of eight thousand dollars, the vessel being valued at the sum
of sixteen thousand dollars. The policy, described in the
declaration, assumed to insure against the usual sea perils, among
which is barratry of the master and mariners. The declaration avers
that during the prosecution of a voyage, within the policy, while
on the high seas, and near the entrance of the harbor of the City
of New York, by and through the want of a proper lookout, by the
mate of the said brig and by and through the erroneous order of the
chief mate, who was stationed on the top-gallant forecastle of the
said brig, who saw the schooner, hereinafter named, and cried out
to the man at the wheel, "helm hard down -- luff" -- whereas, he
ought not to have given the said order, and, by and through the
negligence and fault of the said brig
Emily, the said brig
ran into a schooner called the
Virginian, and so injured
her that she sank, whereby the said brig
Emily became
liable to the owners of the said schooner and her cargo to make
good their damages, which liability was a charge and encumbrance on
the said brig. The declaration then proceeds to aver that the brig
was libeled by the owners of the schooner and her cargo in the
district court of the United States; that a decree was there made
whereby it was adjudged
"That the collision in the pleadings mentioned, and the damages
and loss incurred by the libellants in consequence thereof occurred
by the negligence or fault of the said brig, and that the
libellants were entitled to recover their damages by them sustained
thereby;"
that the same having been assessed, a decree therefor was made
by the district court which, on appeal, was affirmed by the circuit
court, which found
"That the hands, on board the
Emily failed to keep a
proper lookout, and that the said brig might have avoided the
collision by the use of proper caution, skill, and vigilance."
The declaration further avers that the plaintiff has paid divers
sums
Page 55 U. S. 362
of money to satisfy this decree and the expenses of making the
defense, amounting to the sum of eight thousand dollars.
This statement of the substance of the declaration presents the
question which has been here argued, and sufficiently shows how it
arose, for although there was a demurrer to the first two counts in
the declaration and a trial upon the general issue pleaded to the
other counts and a bill of exceptions taken to the ruling at the
trial, yet the same question is presented by each mode of trial,
and that question is whether, under a policy insuring against the
usual perils, including barratry, the underwriters are liable to
repay to the insured, damages paid by him to the owners of another
vessel and cargo suffered in a collision occasioned by the
negligence of the master or mariners of the vessel insured.
The great and increasing internal navigation of the United
States, carried on over long distances through the channels of
rivers and other comparatively narrow waters where the danger of
collisions and the frequency of their occurrence are much greater
than on maritime voyages renders the respective rights of
underwriters and insured, growing out of such occurrences of more
moment in this than in any other civilized country, and the Court
has considered the inquiry presented by this case with the care
which its difficulty and its importance demand.
In examining for the first time any question under a policy of
insurance, it is necessary to ascertain whether the contract has
received a practical construction by merchants and underwriters,
not through any partial or local usages, but by the general consent
of the mercantile world. Such a practical construction, when
clearly apparent, is of great weight not only because the parties
to the policy may be presumed to have contracted in reference to
it, but because such a practice is very high evidence of the
general convenience and substantial equity of it as a rule. This is
true of most commercial contracts, but it is especially true of a
policy of insurance, which has been often declared to be an
"obscure, incoherent, and very strange instrument," and "generally
more informal than any other brought into a court of justice" (per
Buller, J., 4 T.R. 210; Mansfield, C.J., 4 Taunt. 380; Marshal,
C.J.,
10 U. S. 6 Cranch
45; Lord Mansfield, 1 Bur. 347), but which, notwithstanding the
number and variety of the interests which it embraces and of the
events by which it is affected, has been reduced to much certainty
by the long practice of acute and well informed men in commercial
countries, by the decisions of courts in America and in England,
and by able writers on the subject in this and other countries.
And it should not be forgotten that not only in the
Page 55 U. S. 363
introduction of this branch of law into England by Lord
Mansfield, but in its progress since both there and here, a
constant reference has been had to the usage of merchants, and the
science of insurance law has been made and kept a practical and
convenient system by avoiding subtle and refined reasoning, however
logical it may seem to be, and looking for safe practical
rules.
Now although cases like the present must have very frequently
occurred, we are not aware of any evidence that underwriters have
paid such claims, or that, down to the time when one somewhat
resembling it was rejected by the Court of King's Bench in
De
Vaux v. Salvador, 5 Ad. & Ellis, decided in 1836, such a
claim was ever made. And we believe that if skillful merchants or
underwriters or lawyers, accustomed to the practice of the
commercial law, had been asked whether the insurers on one vessel
were liable for damage done to another vessel, not insured by the
policy, by a collision occasioned by the negligence of those on
board the vessel insured, they would down to a very recent period
have answered unhesitatingly in the negative.
As we shall presently show, such, for a long time, was the
opinion of the writers on insurance on the continent of Europe and
in England and America. And this alone would be strong proof of the
general understanding and practice of those connected with this
subject.
But although this practical interpretation of the contract is
entitled to much weight, we do not consider it perfectly decisive.
It may be that by applying to the case the settled principles of
the law of insurance, the loss is within the policy, and that it
has not heretofore been found to be so, because an exact attention
has not been given to the precise question. Or it may be that the
weight of recent authority and the propriety of rendering the
commercial law as uniform as its necessities should constrain us to
adopt the rule contended for by the defendant in error. And
therefore we proceed to examine the principles and authorities,
bearing on this question.
Upon principle, the true inquiries are what was the loss and
what was its cause?
The loss was the existence of a lien on the vessel insured
securing a valid claim for damages, and the consequent diminution
of the value of that vessel. In other words, by operation of law,
the owners of the
Virginian obtained a lien on the vessel
insured as security for the payment of damages due to them for a
marine tort whereby their property was injured.
What was the cause of this loss? We think it is correctly stated
by this Court, in the case of
The
Paragon, 14 Pet. 109.
Page 55 U. S. 364
In that case it was said:
"In the common case of an action for damages for a tort done by
the defendant, no one is accustomed to call the verdict of the jury
and the judgment of the court thereon the cause of the loss to the
defendant. It is properly attributable to the original tort, which
gave the right to damages consequent thereon."
The cases there spoken of were claims
in personam. But
the language was used to illustrate the inquiry what should be
deemed the cause of a loss by a claim
in rem, and is
strictly applicable to such a claim. Whether the owners of the
Virginian would proceed
in rem or
in
personam was at their election. It affected only their remedy.
Their right, and the grounds on which it rested, and the extent of
the defendant's liability, and its causes, were the same in both
modes of proceeding. And in both the cause of the loss of the
defendant would be the negligence of his servants, amounting to a
tort. The loss consisting in a valid claim on the vessel insured,
we must look for the cause of the loss in the cause of the claim,
and this is expressly averred by the declaration to have been the
negligence of the servants of the assured. From the nature of the
case, it was absolutely necessary to make such an averment. If the
declaration had stated simply a collision, and that the plaintiff
had paid the damages suffered by the
Virginian and her
cargo, it would clearly have been bad on demurrer because, although
it would show a loss, it would state no cause of that loss. It is
only by adding the fact that the damage done to the
Virginian was caused by negligence -- that is, by stating
the cause of damage -- that the cause of payment appears, and when
it appears, it is seen to be the negligence of the servants of the
assured.
We know of no principle of insurance law which prevents us from
looking for this sole operative cause, or requires us to stop short
of it, in applying the maxim
causa proxima non remota
spectatur. The argument is that collision, being a peril of
the sea, the negligence which caused that peril to occur is not to
be inquired into; it lies behind the peril, and is too remote. This
is true when the loss was inflicted by collision or was by law a
necessary consequence of it. The underwriter cannot set up the
negligence of the servants of the assured as a defense. But in this
case he does not seek to go behind the cause of loss and defend
himself by showing this cause was produced by negligence. The
insured himself goes behind the collision and shows, as the sole
reason why he has paid the money, that the negligence of his
servants compelled him to pay it. It is true that an expense,
attached by the law maritime to the subject insured, solely as a
consequence of a peril, may be considered as proximately caused by
that peril. But where the expense is attached
Page 55 U. S. 365
to the vessel insured, not solely in consequence of a peril, but
in consequence of the misconduct of the servants of the assured,
the peril
per se is not the efficient cause of the loss,
and cannot in any just sense be considered its proximate cause. In
such a case, the real cause is the negligence, and unless the
policy can be so interpreted as to insure against all losses
directly referable to the negligence of the master and mariners,
such a loss is not covered by the policy. We are of opinion the
policy cannot be so construed. When a peril of the sea is the
proximate cause of a loss, the negligence which caused that peril
is not inquired into -- not because the underwriter has taken upon
himself all risks arising from negligence, but because he has
assumed to indemnify the insured against losses from particular
perils, and the assured has not warranted that his servants will
use due care to avoid them.
These views are sustained by many authorities. Mr. Arnould, in
his valuable Treatise on Insurance, vol. 2, 775, lays down the
correct rule:
"Where the loss is not proximately caused by the perils of the
sea, but is directly referable to the negligence or misconduct of
the master or other agents of the assured not amounting to
barratry, there seems little doubt that the underwriters would be
thereby discharged."
To this rule must be referred that class of cases in which the
misconduct of the master or mariners has either aggravated the
consequences of a peril insured against or been of itself the
efficient cause of the whole loss. Thus, if damage be done by a
peril insured against and the master neglects to repair that
damage, and in consequence of the want of such repairs the vessel
is lost, the neglect to make repairs, and not the sea damage, has
been treated as the proximate cause of the loss. In the case of
Copeland v. N.E. Marine Ins. Co., 2 Met. 432, Mr. Chief
Justice Shaw reviews many of the cases and states that
"the actual cause of the loss is the want of repair, for which
the assured are responsible, and not the sea damage which caused
the want of repair, for which it is admitted the underwriters are
responsible."
And the same principles were applied by Mr. Justice Story in the
case of
Hazard v. N.E. Marine Ins. Co., 1 Sum. 218, where
the loss was by worms which got access to the vessel in consequence
of her bottom's being injured by stranding, which injury the master
neglected to repair. So where a vessel has been lost or disabled
and the cargo saved, a loss caused by the neglect of the master to
transship or repair his vessel and carry the cargo cannot be
recovered.
Schieffelin v. N.Y. Ins. Co., 9 Johns. 21;
Bradhurst v. Col. Ins. Co., 9 Johns. 17;
Am. Ins. Co.
v. Center, 4 Wend. 45;
S.C. 7 Cow. 504;
McGaw v.
Ocean Ins. Co., 23 Pick. 405. So where condemnation of a
neutral
Page 55 U. S. 366
vessel was caused by resistance of search;
Robinson v.
Jones, 8 Mass. 536, or a loss arose from the master's
negligently leaving the ship's register on shore,
Cleveland v.
Union Ins. Co., 8 Mass. 308. So where a vessel was burnt by
the public authorities of a place into which the master sailed with
a false bill of health, having the plague on board; Emerigon, by
Meredith, 348; in these and many other similar cases, the courts,
having found the efficient cause of the loss to be some neglect of
duty by the master, have held the underwriter discharged. Yet it is
obvious that in all such cases one of the perils insured against
fell on the vessel. And they are to be reconciled with the other
rule, that a loss caused by a peril of the sea is to be borne by
the underwriter, though the master did not use due care to avoid
the peril, by bearing in mind that in these cases it is negligence,
and not simply a peril of the sea, which is the operative cause of
the loss. It may sometimes be difficult to trace this distinction,
and mistakes have doubtless been made in applying it, but it is one
of no small importance in the law of insurance, and cannot be
disregarded without producing confusion. The two rules are in
themselves consistent. Indeed, they are both but applications, to
different cases, of the maxim
causa proxima non remota
spectatur. In applying this maxim in looking for the proximate
cause of the loss, if it is found to be a peril of the sea, we
inquire no further; we do not look for the cause of that peril. But
if the peril of the sea, which operated in a given case, was not of
itself sufficient to occasion, and did not in and by itself
occasion the loss claimed, if it depended upon the cause of that
peril whether the loss claimed would follow it, and therefore a
particular cause of the peril is essential to be shown by the
assured, then we must look beyond the peril to its cause, to
ascertain the efficient cause of the loss.
The case at bar presents an illustration of both rules. So far
as the brig
Emily was herself injured by the collision,
the cause of the loss was the collision, which was a peril insured
against, and the assured, showing that his vessel suffered damage
from that cause, makes a case, and is entitled to recover. But he
claims to recover not only for the damages done to his vessel,
which was insured, but for damages done to the other vessel, not
insured. To entitle himself to recover these, he must show not only
that they were suffered by a peril of the sea, but that the
underwriter is responsible for the consequences of that peril
falling on a vessel not insured. It is this responsibility which is
the sole basis of his claim, and to make out this responsibility he
does not and cannot rest upon the occurrence of a collision; this
affords no ground for this claim; he must show a particular cause
for that collision and aver that by reason of
Page 55 U. S. 367
the existence of that cause, the loss was suffered by him, and
so the underwriter became responsible for it.
This negligence is therefore the fact without which the loss
would not have been suffered by the plaintiff, and by its operation
the loss is suffered by him. In the strictest sense, it causes the
loss to the plaintiff. The loss of the owners of the Virginia was
occasioned by a peril of the sea, by which their vessel was
injured. But nothing connects the plaintiff with that loss, or
makes it his, except the negligence of his servants. Of his loss
this negligence is the only efficient cause, and in the sense of
the law it is the proximate cause.
The ablest writers of the continent of Europe on the subject of
insurance law have distinctly declared that in case of damage to
another vessel solely through the fault of the master or mariners
of the assured vessel, the damage must be repaired by him who
occasioned it, and the insurer is not liable for it. Pothier Traite
d'Assurance, No. 49, 50; Boucher, 1500, 1501, 1502; 4 Boulay Paty,
Droit Maritime, ed. of 1823, 14, 16; Santayra's Com. 7, 223;
Emerigon, by Meredith, 337. If the law of England is to be
considered settled by the case of
DeVaux v. Salvador, 4
Ad. & El. 420, it is clear such a loss could not be recovered
there. Mr. Marshall is evidently of opinion that unless the
misconduct of the master and crew amounted to barratry, the loss
could not be recovered. Marsh. on Ins. 495. And Mr. Phillips so
states in terms. 1 Phil. on Ins. 636.
It has been urged that in the case of
The Paragon
(
Peters v. Warren Ins.
Co., 14 Pet. 99), this Court adopted a rule which,
if applied to the case at bar, would entitle the insured to
recover. But we do not so consider it. It was there determined that
a collision without fault was the proximate cause of that loss.
Indeed, unless the operation of law, which fixed the lien, could be
regarded as the cause of that loss, there was no cause but the
collision, and that was a peril insured against.
We are aware that in the case of
Hall v. Washington Ins.
Co., 2 Story, Mr. Justice Story took a different view of this
question, and we are informed that the Supreme Court of
Massachusetts has recently decided a case in conformity with his
opinion, which is not yet in print and which we have not been able
to see. But with great respect for that very eminent judge and for
that learned and able court, we think the rule we adopt is more in
conformity with sound principle as well as with the practical
interpretation of the contract by underwriters and merchants, and
that it is the safer and more expedient rule.
We cannot doubt that the knowledge by owners, masters, and
seamen that underwriters were responsible for all the damage done
by collision with other vessels through their negligence
Page 55 U. S. 368
would tend to relax their vigilance and materially enhance the
perils, both to life and property, arising from this case.
The judgment of the circuit court must be
Reversed and the cause remanded with directions to render a
judgment for the defendants, on the demurrer to the first two
counts and award a venire de novo to try the general issue pleaded
to the other counts.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Southern
District of New York and was argued by counsel. On consideration
whereof, it is now here ordered and adjudged by this Court that the
judgment of the said circuit court in this cause be and the same is
hereby reversed with costs, and that this cause be and the same is
hereby remanded to the said circuit court with directions to enter
a judgment for the plaintiff in error on the demurrer to the two
first counts, and to award a venire facias de novo to try the
general issue pleaded to the other counts.
