The underwriters on a policy are liable for a loss arising immediately from a the policy; and, in our law, at least, there is no authority which says that the underwriters are not liable for a loss, the proximate cause of which is one of the enumerated risks, but the remote cause of which may be traced to the misconduct of the master and mariners. If, indeed, the negligence of the master would exonerate the underwriter from responsibility in case of a loss by fire, it would also do so in cases of loss by capture or perils of the sea and it would, therefore, constitute a good defence in an action upon a policy, to shew that the captain had misconducted himself in the navigation of the ship, or that he had not resisted an enemy to the utmost of his power. It is certainly a strong argument against the objection now raised for the first time, that in the great variety of cases upon marine policies, which have been the subjects of litigation in Courts of Justice (the facts of which must have presented a ground for such a defence) no such point has ever been made." The learned Judge, after referring to the foreign authorities upon the subject, (a) proceeds thus, "We must, therefore, endeavour to collect the meaning of the contracting parties from the terms of the policy itself, and in considering whether the assured claiming for a loss by fire, is to have that claim disallowed on the ground that the fire was occasioned by the misconduct of the master and mariners: we must look to the other terms of the policy, and learn from them whether the assurers in other instances are responsible for the misconduct of the master, and when we find that they make themselves answerable for the wilful misconduct of the master; in other cases it is not too much to say, they meant to indemnify the assured against fire proceeding from the negligence of the master and mariners." So also it was held in the case of Walker v. Maitland, (b) that the underwriters on a policy were liable for a loss arising from a " peril of the sea," although it was remotely owing to the neglect of the master and mariners. For the Court held, (a) See Pothier traité du Contrat d'Assurance, s. 53. Valin, liv. 3, tit. 6, des Assurances, art. 26. 1 Emerig. p. 434. that the immediate cause of the loss was the violence of the winds and the waves, and Chief Justice Abbott said that he was afraid of laying down any rule which would introduce an infinite number of questions as to the quantum of care which, if used, might have prevented the loss. (a) So likewise in the case of Bishop v. Pentland, (b) where a ship was stranded within the meaning of that word in the policy, it was held that the underwriters were liable for a partial loss, although the stranding might have been occasioned remotely by the negligence of the crew in not providing a rope of sufficient strength to fasten the vessel to the shore. peril of the sea but remotely from the neg ligence of the master and mariners. Where the captain of a ship throws a quantity of dol lars overboard to prevent them falling into the hands and was afterwards captured, Another risk which the underwriters take upon themselves Of Jettisons. is that of "jettison." Upon which subject the case of Butler v. Wildman, (c) is an authority. The circumstances of that case were these:-a captain of a Spanish ship, in order to prevent a quantity of dollars from falling into the hands of the enemy, by whom he was about to be attacked, threw them into the sea, and was immediately after captured; the policy was in the common form, one of the risks taken upon by the underwriters being "jettisons," expressed in the policy. There was a demurrer to the declaration. Abbott, C. J., after referring to the form of the declaration, said, "the question then arises whether this be a loss for which the underwriters are liable. I am of opinion that this is a loss by jettison, or if not, strictly speaking, by jettison, it is something ejusdem generis, and therefore falls within the general words, 'all other losses and misfortunes, &c."" Jettison, in its largest (a) And see Heyman v. Parish, 2 Camp. 148, and Blyth v. Shepherd, 9 M. & W. 763. (b) 7 B. & C. 219. of the enemy, this if not a loss by jettison; is a loss "ejusdem generis." sense, however, signifies any throwing overboard; but in its ordinary sense it means a throwing overboard for the preservation of the ship and cargo, and most of the jurists treat of it in this sense, under the head of general average. The present case is an extraordinary species of jettison. I cannot, however, distinguish it in principle, from the case where the captain sets fire to his ship to prevent her falling into the hands of the enemy. Now it is laid down, by Emerigon and Pothier, that the underwriters are liable for such a loss; and I think, therefore, they are so in the present case." And Bayley, J., says, "I am of the same opinion. If the dollars had not been thrown overboard, it is clear that they would have fallen into the hands of the enemy, for the ship was, in point of fact, taken; and if the loss here stated had been declared upon as a loss by jettison, or by enemies, or within the concluding words all other losses and misfortunes,' the facts stated would have supported that averment. Jettison, in its largest sense, means any throwing overboard. In the passage cited from Emerigon, he is treating of jettison with reference to cases of general average, where jettison is used in a confined sense. But its true meaning, in a policy of insurance, seems to me to be any casting overboard ex justá causâ. But assuming that this was not strictly 'jettison,' it is something 'ejusdem generis,' and may therefore be comprehended within the words all other losses and misfortunes."" Capture. SECTION XII. MEN-OF-WARr, enemies, PIRATES, ROVERS, THIEVes, etc. This head of the risks taken upon themselves by the assurers, refers to what is generally in one single term called capture," and is of little moment, either to the assured or assurer, during the time of peace; and, likewise, (as Mr. J. Park remarks in his Treatise) even in the time of war the question relating to captures as between the assured and the assurer, is of very little difficulty (a). Capture may be said to be, as applied to this subject, the taking of the ships or goods belonging to the subjects of one country by those of another, when in a time of war. An important observation, however, is to be made here upon the general terms used by the assurers in the policy, by which it is to be seen that they take upon themselves to indemnify the assured from the effect of all capture, and detainment and restraint of all princes, without any exception in respect to the acts of the government of their own nation. But it is now quite settled by the cases of Bell v. Potts (b), and Furtado v. Rogers (c), and other cases, that all insurances of enemies' property from the effects of capture by the acts of the government of the country of the underwriter, are illegal at the common law, and cannot be enforced in a Court of Justice. Lord Alvanley, who delivered the judgment of the Court of Common Pleas in the latter of these cases, in conclusion ends with these words, "The ground upon which we decide this case is, that when a British subject insures against captures, the law infers that the contract contains an exception of captures made by the government of his own country; and that if he had expressly insured against British capture, such a contract would be abrogated by the law of England." The law relating to this question is perfectly settled in England, and was laid down by Lord Mansfield in the case of Goss v. Withers, Mich. Term, 32 Geo. 2 (d). When a British subject insures against captures, the law infers that the contract con tains an excep tion of captures made by the his own government of country. for a total loss, This was a special case from the Sittings in London upon A ship insured two actions, on two distinct policies: one "on the ship," the the assured being taken, other "upon the loading." The case states, that the ship may demand as departed from her proper port and was taken by the French and abandon to on the 23rd December, 1756, and that the master, mates, and all the sailors, except an apprentice and landsman, were taken out and carried to France; that the ship remained in the the assurer. hands of the enemy eight days, and was then retaken by a British privateer, and brought in on the 18th January to Milford Haven; and that immediate notice was given by the assured to the assurers, with an offer to abandon the ship to their care. It was also proved at the trial, that before the taking by the enemy a violent storm arose at sea, which first separated the ship from her convoy, and afterwards so far disabled her as to render her incapable of proceeding on her destined voyage without going into port to refit. It was also proved, that part of the cargo was thrown overboard in the storm, and the rest of it was spoiled whilst the ship was at Milford Haven, after the offer to abandon, and before she could be refitted. Several questions arising upon the trial of the first said causes, it was agreed that the jury should bring in their verdict, in both cases, for the plaintiffs, as for a total loss, subject, however, to the opinion of the Court on the following questions, viz. : 1st. Whether this capture of the ship by the enemy was or was not such a loss as that the assurers became liable thereby? 2ndly. Whether, under the several circumstances of this case, the assured had or had not a right to abandon the ship to the assurers, after she was carried into Milford Haven? This case was argued twice, viz., first, on Tuesday, 6th June, 1758, by Mr. Morton for the plaintiffs, and Mr. Serjeant Davy for the defendant; and again on Friday, 10th November, 1758, by Mr. Norton for the plaintiffs, and Sir Richard Lloyd for the defendant. Mr. Morton and Mr. Norton, on behalf of the plaintiffs, argued for the affirmative on both questions (a). They previously distinguished between cases disputed between the assured and assurers, and those between owners and recaptors, and observed that this is a mere contract between the parties. (a) The second part is reserved for future consideration in this Treatise. |