expressed in the policy, they have held the underwriters liable, notwithstanding the event may be attributable, in the first instance, to a remote cause of a different description." "It were infinite," says Lord Bacon, (a) "for the law to judge the causes of causes, and of their impulsions on one another and, therefore, it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any farther degree." Such must always be understood to be the mutual intention of the parties to the contract of marine insurances. Thus, for instance, (b) "where 'fire' is expressly mentioned in the policy, as one of the perils against which the underwriters undertake to indemnify the assured, it is of no consequence whether this is occasioned by a common accident, or by lightning, or by an act done in duty to the state. Nor can it make any difference, whether the ship is thus destroyed by third persons, officers of the king, or by the captain and crew, acting with loyalty and good faith. Fire is still the 'causa causans' and the loss is covered by the policy." And this is agreeable to the law in France upon the subject (c); and see the case of Jones v. Schmoll, (d) decided by Lord Mansfield, on the same point. It is also a maxim of the law of marine insurance "that the assured having provided a sufficient crew and captain of competent skill at the commencement of the voyage, makes no warranty that they shall do their duty during the continuance of it, nor are the underwriters discharged from their liability, in case of a loss occasioned immediately by one of the perils insured against, although remotely owing to the negligence of the master and crew." This principle of the law of marine insurance, will be found to be supported by various authorities. We now proceed to the consideration of the several perils (a) Maxims of the Law, p. 35, of Law Tracts, 1737. (b) Gordon v. Rimmington, 1 Camp. 132. (e) Pothier traité du Cont. d'As sur. s. 53. Valin, liv. 3, tit. 6. Des 434. (d) 1 T. R. 130, note (a). enumerated in the policy, against the consequences arising out of which, the assurers have undertaken to keep the assured harmless. 1. The perils of the seas. Every loss which happens to a ship by the immediate SECTION X. PERILS OF THE SEA, FIRE, ETC. (a). The assurers say that "the perils which they are contented to take upon themselves are of 'the sea,' and of 'fire.'" Of these, therefore, in their order. In the first place, it may be said generally that every accident which happens to a ship during her voyage by the mere act of God is to be considered as a "peril of the sea;" for every loss which arises "from tempests, or by rocks, winds, or waves" (b), strictly and naturally come under the idea of peril of the sea. a loss occasioned by "the perils of the sea." act of God, is a loss by Where a ship is driven on an of the sea. went on shore But where, as in the case of Green v. Elmslie (c), the ship when on her voyage was driven by a hard gale of wind on the coast of France, and was there captured by the enemy, she did not receive any damage from the wind, (the insurance was against capture only), it was contended for the defendant that this was a loss by the "perils of the sea," and not by capture, and that the defendant was not liable upon that policy. But Lord Kenyon said, that the case was too clear to admit of argument: this was clearly a loss by capture; for had the ship been driven on any other coast than that of an enemy, she would have been in perfect safety. Verdict for the plaintiff. Where a ship In the case of Hodgson v. Malcolm (d), where it became in consequence necessary, in moving a ship from one part of a harbour to another, to send two of the crew on shore to make fast a new of two sailors (a) I have altered the order in this part by putting the peril of "fire" before that of men-of-war. (b) Jefferyes v. Legendra, 1 Show. 323. (c) Peake, 212. " being pre- line, and to cast off a rope by which the ship was made fast, and those two men being immediately impressed, and carried away, and not being allowed by the pressgang to cast off the rope in question, the ship, in consequence thereof, went ashore, and was lost. Three Judges of the Court of Common to be a loss by Pleas, viz., Mr. J. Heath, Mr. J. Rooke, and Mr. J. Chambre, sea. held this to be a loss (within the meaning of the policy) by 'perils of the sea," contrary to the opinion of Chief Justice Sir J. Mansfield. ordered, held perils of the warranted free condemnation, and was after wards by the ice, tide and In the case of Livie v. Janson (a) (which will be mentioned Where a ship afterwards, with reference to another and more important of American point in the case), the action was on a policy of insurance on slipped away an American ship, "at and from New York to London," in the night warranted free from "American condemnation." The facts were shortly the following:-The ship, in order to elude her national embargo, slipped away in the night, and was driven by the ice, wind, and tide, on shore, and was ultimately condemned by the American government, for breach of the embargo. The underwriters were discharged. But where, in the case of Hahn v. Corbett (b), an insurance was made on goods on board a ship, "warranted free from capture and seizure," and the ship was stranded on a shoal, within a few miles of the port of her destination, and was lost; but whilst she lay on the sand she was seized by the commander of the place, and her goods were confiscated by him. This was held to be a loss by perils of the sea. And in the case of Bondrett v. Hentigg (c), which was an action on an insurance on goods, and where the ship was actually wrecked, part of the goods lost and part got on shore, but whilst on shore were destroyed and plundered by the inhabitants, so that no part of them again came into the possession of the assured. Lord Chief Justice Gibbs was of opinion that this was a loss by perils of the sea. And in a very recent case of Redman v. Wilson, in which judgment was given by Parke, B. (d)," and which was an action (a) 12 East, 648. (b) 2 Bing. 205. (c) 1 Holt, 149. (d) 29th June, 1845,MS. penes me. wind driven on shore and ultidemned for embargo, the mately con breach of the underwriters discharged. The loss must be proved to have been occasioned by one of the perils insured against. on a policy of insurance made on the ship "Wellington," trading "to and from Sierra Leone," at the trial the jury returned a verdict for the plaintiff. The defendant moved for, and obtained a rule, calling upon the plaintiff to show cause why the verdict should not be set aside and a new trial had, on the ground that the loss had been occasioned by the negligence of the party in charge of the vessel. During the trial it was proved, that the ship had sprung a leak, and that with the hope, at all events, of saving part of the cargo, the captain had run her ashore, where, ultimately, she had gone to pieces. It was contended for the defendant that this was not one of the perils of the sea. The Court were of opinion that it was one of "the perils of the sea," and, moreover, that there had been no proof whatever of any neglect. The rule must, therefore, be discharged." But although, as was said in the previous section, the Courts are liberal in construing this part of the contract, yet they will, at the same time, be cautious not to extend the principle so as to make the acts of the parties operate beyond their intention, and will be guided by the terms used in the policy, to see whether a certain loss, which has happened, is covered by the terms used in the policy to fix the risks against which the underwriter has subscribed. And therefore in the case of Gregson v. Gilbert (a), which was an action on a policy of insurance on the value of certain slaves insured by the policy. The declaration stated "that by perils of the sea, contrary winds, currents, and other misfortunes, the voyage was so much retarded that a sufficient quantity of water did not remain for the support of the slaves and other people on board; that certain of the slaves mentioned in the declaration perished for want of water. The facts, as they appeared by the evidence, were, that the ship, being bound from Guinea to Jamaica, had missed the island, and the crew were reduced to great distress for want of water; that the captain consulted with the crew, and it was (a) B. R. 23 Geo. 3. Park Ins. 138. I unanimously agreed upon that some of the slaves should be thrown overboard, in order to preserve the rest; that at the time of this resolution there remained but one day's full allowance of water, at two quarts per man. The jury, upon this evidence, found a verdict for the plaintiff, with damages 301. a-head for every slave thrown overboard. A motion was afterwards made for a new trial, upon the ground that this was not a loss by "perils of the sea." Lord Mansfield." This is a very uncommon case, and deserves a further consideration. There is great weight in the objection, that the loss is stated by the declaration to have arisen from the "perils of the sea," and that the currents, &c., made the ship foul and leaky. Now, does it appear by evidence that the ship was foul and leaky? On the contrary, the loss happened by mistaking Jamaica for another place. Besides, a fact has been mentioned by the counsel, of throwing some slaves overboard, after the rain fell-a fact which is not agreed on by both sides, though a very material one." Mr. Justice Buller.-" The declaration does not, in any part of it, state the loss which has been the occasion of this demand; and it would be very mischievous if we were to overturn this objection. Suppose, for a moment, that the underwriters, in some cases, are liable for the mistake of the captain, yet, if they are not liable in others, the nature of the loss must be stated in the declaration, that the defendant may have an opportunity of moving in arrest of judgment, if it be not sufficiently alleged. But it would be impossible for the defendant in this case to move in arrest of judgment: for the facts of the case, as proved, are different from those stated in the declaration. The point of law in arrest of judgment can only be argued from the facts stated on record; and the declaration in this case states the loss of the plaintiff to have happened by perils of the sea." The rule for a new trial was made absolute, on payment of costs. A loss occasioned by another vessel running down the ship insured, is a loss by peril of the sea: although there be T A loss by colby peril of the lision is a loss sea. |