1. When two causes of loss concur, one at the risk of the
assured and the other insured against, or one insured against by A.
and the other by B., if the damage caused by each peril can be
discriminated, it must be borne proportionately.
2. But if the damage caused by each peril cannot be
distinguished from that caused by the other, the party responsible
for the predominating, efficient cause, or that which set in
operation the other incidentally to it, is liable for the loss.
3. An insurance upon a steamer against fire, "except fire
happening by means of any invasion, insurrection, riot, or civil
commotion, or of any military or usurped power," is an insurance
against fire caused by collisions.
4. Underwriters against fire are responsible for a loss
occasioned by the sinking of a vessel insured when caused by fire
(though the fire itself be the result of a collision not insured
against), if the effect of the collision without the fire would
have been only to cause the vessel to settle to her upper deck, and
that be a case in which she might have been saved.
The Howard Fire Insurance Company insured the steamer
Norwich, owned by the Norwich & New York
Transportation Company, for $5,000 against fire. The policy covered
the steamer, her hull, boilers, machinery, tackle, furniture,
apparel, &c., whether stationary or movable, whether the boat
should be running or not running, and insured against all such loss
or damage, not exceeding the sum insured, as should happen to the
property by fire, other than fire happening by means of any
invasion, insurrection, riot, or civil commotion, or of any
military or usurped power.
While on one of her regular trips from Norwich to New York, on
Long Island Sound, the steamer collided with a schooner, the latter
striking her on her port side, and cutting into her hull below the
waterline, in consequence of which she immediately and rapidly
began to fill with water. Within ten or fifteen minutes after the
collision, the water reached the floor of the furnace, and the
steam thereby generated blew out the fire, which communicated with
the woodwork
Page 79 U. S. 195
of the boat. Her upper works and her combustible freight were
soon enveloped in flames, and they continued to burn half or
three-quarters of an hour, when she gradually sunk in twenty
fathoms of water, reeling over. The steamer was so constructed that
her main deck was completely housed in from stem to stern, up to
her promenade, or hurricane deck above. Her freight was stowed on
the main deck, and her cabin and staterooms were on the hurricane
deck. From the effects of the collision alone she would not have
sunk below her promenade deck, but would have remained there
suspended in the water, and would have been towed to a place of
safety, when she, her engines, tackle, and furniture, could have
been repaired and restored to their condition prior to the
collision for the sum of $15,000, the expense of towage included.
The sinking of the steamer below her promenade deck was the result
of the action of the fire in burning off her light upper works and
housing, thus liberating her freight, allowing much of it to drift
away, whereby her floating capacity was greatly reduced, so that
she sunk to the bottom, and all the damage which she suffered
beyond the $15,000 above named as chargeable to the collision
(amounting to $7,300), including the cost of raising the boat, was
the natural and necessary result of the fire, and of the fire
only.
The Transportation Company having set up a claim for indemnity
against the Insurance Company, for a loss by fire within the
policy, and the company declining to pay, suit was brought in the
court below against it, and on the facts as already stated, and
specially found as facts by the circuit court, judgment was given
for the plaintiff. The Insurance Company brought the case here to
reverse the judgment.
Page 79 U. S. 196
MR. JUSTICE STRONG delivered the opinion of the Court.
Mr. Phillips, in his Treatise on the Law of Insurance, lays down
two rules respecting the concurrence of different causes of loss,
which the plaintiffs in error contend should be applied to this
case, and which, if applied, they insist must lead to a reversal of
the judgment in the court below. [
Footnote 1] The first of these is:
"In case of the concurrence of two causes of loss, one at the
risk of the assured and the other insured against, or one insured
against by A., and the other by B., if the damage by the perils
respectively can be discriminated, each party must bear his
proportion. "
Page 79 U. S. 197
The second is:
"Where different parties, whether the assured and the
underwriter, or different underwriters, are responsible for
different causes of loss, and the damage by each cannot be
distinguished, the party responsible for the predominating
efficient cause, or that by which the operation of the other is
directly occasioned, as being merely incidental to it, is liable to
bear the loss."
These propositions may be accepted as correct statements of the
law, and the question before us is whether the circuit court, in
giving judgment for the assured, failed to apply them rightly to
the facts of the case.
The insurance in this case was against all such loss or damage,
not exceeding the sum insured, as should happen to the property by
fire, other than fire happening by means of any invasion,
insurrection, riot, or civil commotion, or of any military or
usurped power. Thus loss from fire happening in consequence of
every other cause than those excepted was covered by the policy.
The insurers took the risk of fires caused by lightning,
explosions, and collisions. Such was the contract.
It is urged on behalf of the plaintiff's in error the findings
in the case establish that the sinking of the steamer, wherein
consisted principally the loss, or that part of it in excess of
$15,000 chargeable to the collision, was the result of two
concurrent causes, one the fire, and the other the water in the
steamer's hold, let in by the breach made by the collision. As the
influx of the water was the direct and necessary, consequence of
the collision, it is argued that the collision was the
predominating, and therefore the proximate cause of the loss. The
argument overlooks the fact, distinctly found, that the damage
resulting from the sinking of the vessel was the natural and
necessary result of the fire only. If it be said that this was but
an inference from facts previously found, it was not for that
reason necessarily a mere legal conclusion. But we need not rely
upon this. Apart front that finding, the other findings,
unquestionably of facts, show that neither the collision, nor the
presence of water in
Page 79 U. S. 198
the steamer's hold was the predominating efficient cause of her
going to the bottom. That result required the agency of the fire.
It is found that the water would not have caused the vessel to sink
below her promenade deck, had not some other cause of sinking
supervened. It would have expended its force at that point. The
effects of the fire were necessary to give it additional
efficiency. The fire was therefore the efficient predominating
cause, as well as nearest in time to the catastrophe, which not
only directly contributed to all the damage done after the steamer
had sunk to her promenade deck, but enlarged the destructive power
of the water, and rendered certain the submergence of the vessel.
This plainly appears, if we suppose that the fire had occurred on
the day after the collision, and had originated from some other
cause than the collision itself. The effects of the prior disaster
would then have been complete. The steamer would have been full of
water, sunk to her promenade deck, and, remaining thus suspended,
would have been towed to a place of safety and saved in that
condition to her owners, except for the new injury. But the fire
occurring on the next day, destroying the upper works and the
housing, thus liberating the light freight and greatly reducing the
floating capacity of the steamer, would have caused her to sink to
the bottom as she did. In the case supposed, the water would have
been as truly a concurrent and efficient cause of the steamer's
sinking, as it was in the case now in hand. It would have operated
in precisely the same manner, remaining dormant until given new
activity. But could there have been any hesitation in that case, in
determining which was the proximate, the efficient, predominating
cause of the sinking of the vessel? And can it be doubted that the
underwriters against loss by fire would be held responsible for
such a loss? Wherein does the case supposed differ in principle
from the present, when the facts found are considered? True, the
fire in this case was caused by the collision, but the policy
insured against fire caused by collision. True, the fire
immediately followed the filling of the steamer with water, or
commenced while she was filling, but the effects of the
Page 79 U. S. 199
fire are conclusively distinguished from the breach in the
steamer's hull, and the filling of her hold with water. The damages
caused by the several agencies have been discriminated, and its
proper share assigned to each. It is an established fact that the
damaging effect of the water, independent of the fire, would not
have reached beyond sinking of the steamer to its upper deck, when
she would have been saved from further injury.
There is undoubtedly difficulty in many cases attending the
application of the maxim
"proxima causa, non remota
spectatur," but none when the causes succeed each other in
order of time. In such cases the rule is plain. When one of several
successive causes is sufficient to produce the effect (for example,
to cause a loss), the law will never regard an antecedent cause of
that cause, or the
"causa causans." [
Footnote 2] In such a case, there is no doubt
which cause is the proximate one within the meaning of the maxim.
But when there is no order of succession in time, when there are
two concurrent causes of a loss, the predominating efficient one
must be regarded as the proximate, when the damage done by each
cannot be distinguished. Such is, in effect, Mr. Phillips's rule.
And certainly that cause which set the other in motion and gave to
it its efficiency for harm at the time of the disaster must rank as
predominant. In the present case, however, the rule hardly seems
applicable, because the damage resulting from the fire and that
caused by the filling of the steamer are clearly distinguished.
It is true, as argued, that as the insurance in this case was
only against fire, the assured must be regarded as having taken the
risk of collision, and it is also true that the collision caused
the fire, but it is well settled that when an efficient cause
nearest the loss is a peril expressly insured against, the insurer
is not to be relieved from responsibility by his showing that the
property was brought within that peril by a cause not mentioned in
the contract. [
Footnote 3] The
case quoted --
Page 79 U. S. 200
St. John v. The American Mutual Insurance Company -- is
instructive, and is, in one particular at least, responsive to the
argument of the plaintiffs in error. It exhibits the difference, in
effect, between, in express exception from a risk undertaken, and
silence in regard to a peril not insured against. The policy, as
here, was against fire, but it contained a provision that the
company would not be liable "for any loss occasioned by the
explosion of a steam boiler." While it was in force, there was an
explosion of a steam boiler which caused the destruction of the
property insured by fire. It was held the insurers were not liable.
The proviso, or exception, was construed as extending to
fire caused by such explosions, for, as the parties were
contracting about the peril of fire alone, an
express
exception of all loss from explosions must have been meant to cover
fire when a consequence of explosions, otherwise the exception
would have been unmeaning. But the court said if nothing had been
said in the policy respecting a steam boiler, the loss, having been
occasioned by fire, as its proximate cause, would have rested on
the insurers, though it had been shown, as it might have been, that
the fire was kindled by means of the explosion. The judgment thus
turned on the effect of an express exception. Had there been none,
the court would not have inquired how the fire happened, whether by
an explosion or not. In the case before us, there is no exception
of collisions, or fires caused by collisions. It must therefore be
understood that the insurers took the risk of all fires not
expressly excepted.
It has been argued that because the policy was against fire
only, the assured are to be considered their own insurers against
perils of the sea, including collisions, and as insurers against
marine risks are liable for collisions, with all their
consequences, including fires, the assured in this case trust be
held to have undertaken that risk. This would be so if they had
taken out no policy against fire. But that works a material
difference. Suppose these underwriters had insured the steamer
against collisions and fire, and had then reinsured in another
company against fire alone, as they
Page 79 U. S. 201
might have done, would it have been a sufficient answer to a
suit brought by them against their insurers, that the fire which
caused the steamer to sink was itself caused by a collision? No one
will affirm that. Yet upon the theory of the plaintiffs in error,
this is substantially what is now attempted. Before any policy was
issued, the Transportation Company were their own insurers against
collisions and fire, no matter how caused. They sought protection
against some of the possible consequences of these risks, and they
obtained a policy insuring them against all loss by fire except
fire caused by certain things, of which collision was not one.
Against every other consequence of a collision than a fire, they
remained their own insurers, but the risk of fire no longer
theirs.
We have already sufficiently said that the amount of the loss
caused by the collision, apart from the fire, was distinctly
ascertained, and the insurers were not charged with it. So was the
amount of loss caused by the fire itself ascertained. If,
therefore, it was a case of the concurrence of two causes of loss,
one at the risk of the assured, and the other of the insurers, the
damage resulting from each has been discriminated, and the insurers
have been held liable only for that caused by the peril against
which they contracted. [
Footnote
4]
Judgment has therefore been given in conformity with the rules
as above stated in Phillips on Insurance. It is
Affirmed.
[
Footnote 1]
Phillips on Insurance, vol. i, ยงยง 1136, 1137.
[
Footnote 2]
<|14 How. 366|>General Mutual Insurance Company v.
Sherwood, 14 How. 366.
[
Footnote 3]
St. John v. The American Mutual Insurance Company, 1
Kernan 519.
[
Footnote 4]
Vide Heebner v. Eagle Insurance Company, 10 Gray
143.
