CHAPTER XVII. OF THE RISKS WHICH ARE COVERED BY THE POLICY. SECTION I.Of the General Responsibility of Insurers. THE insured is never to be indemnified against his own act; nor against loss directly caused by his own personal misconduct.1 And 1 Emerigon, ch. xii. s. 11, § 1 (Meredith's ed.), 290, says: "It is then certain that the insurers never answer for damages and losses which happen directly through the act or fault of the assured himself. It would be, in fact, intolerable that the assured should be indemnified by others for a loss of which he is the author. This rule is grounded upon first principles. It is delivered in the law cum proponas. It is applied to the contract of insurance by the Guidon, and is repeated in all our books. Si casus evenit culpa assecurati, non tenentur assecuratores. It is a general rule, from which it is not permitted to derogate by a contrary agreement: Nulla pactione effici potest ne dolus præstetur. As Pothier remarks: It is evident that I cannot validly agree with any one that he shall charge himself with the faults that I shall commit." The principle of the common law appears to be the same. See Skidmore v. Desdoity, 2 Johns. Ca. 77; Goix v. Knox, 1 Johns. Ca. 337; Chandler v. Worcester Mut. F. Ins. Co., 3 Cush. 328. But if the policy excepts loss by the design of the insured, the underwriters will be liable for loss occasioned by his negligence, unless it be so great as to amount to fraud. Catlin v. Springfield F. Ins. Co., 1 Sumner, 434. In the case of Amicable Society v. Bolland, 2 Dow & C. 1, a case of life insurance, it was held that the insurers where not liable where the assured was executed for felony. And the court said that the law would be the same if the insurance had been specifically against a felonious death. This question was much considered in the recent case of Thompson v. Hopper, 6 Ellis & B. 937. It is settled, as we have already seen, that in England there is no implied warranty in a time policy. The vessel was sent to sea by her owners in an unseaworthy condition, they knowing the fact. Soon after sailing, it was found to be impossible to proceed owing to her condition, and she was brought up in an open roadstead, and while there, by an accident unconnected with her unseaworthiness, she was wrecked. If she had been sea-worthy when she left the harbor, and had prosecuted her voyage without being brought up in the roadstead, there was strong reason for believing that she would have weathered the storm and reached her port of destination in safety. It was contended on this state of facts, that, as the proximate cause of the loss. was a peril insured against, the underwriters were liable, although the remote this principle has been carried so far as to discharge the insurers, where a total loss could be attributed to the owner's neglect in not furnishing funds. But when this principle is applied to the misconduct of the agents of the insured, some qualification is necessary. The rule, in general, must be this: that the principal is liable for the defaults of his agents, when acting as such, and that he is not insured against loss thence arising,2 unless it is clear that the insurer intended to take upon himself these risks. This may be made certain by express clauses in the policy, or by the customary and practical construction of common clauses. Barratry is expressly mentioned in the policy, and will be considered presently. The master, officers, and crew are the agents of the owner for many purposes; but the insurers should not be liable for a loss against which they insured the owner, if it be caused directly by such mistake, ignorance, or neglect of the master or crew as would show unseaworthiness. There is scarcely any department of the law in which the liability of a principal for the acts of his agent has not caused much difficulty; and this is eminently true of the law of insurance. One of the most difficult of these questions arises when cause was the negligence of the owners. And it is difficult to see why this argument should not prevail, if the underwriters would be liable in such a case for the negligence of the master. There seems to be no reason why the underwriters should be responsible for the acts of the servant, and not for those of the owner. The doctrine causa proxima non remota spectatur would seem equally applicable. But the court held, as we think rightly, that the negligence of the owner was the causa sine qua non, and that the underwriters were therefore not liable. penses incurred in that court. Rosetto v. Gurney, 11 C. B. 176, 7 Eng. L. & Eq. 461. But we doubt whether such would be the rule in this country. So, if the goods are lost by capture, owing to the neglect of the captain to claim them as his own, there being an agreement to the effect that he should claim them existing between the captain and the insured, it has been held that the underwriter is not liable. Himely v. Stewart, 1 Brev. 209. And in Vos v. United Ins. Co., 2 Johns. Ca. 180, 187, the court said: "The act of the master must be referred to his principal who 1 Am. Ins. Co. v. Ogden, 20 Wend. appoints him, and whenever a loss hap 287. 2 Thus it has been held in England, that if the goods insured are libelled for salvage in the Admiralty Court, and the master neglects to tender a specific sum for salvage, and to offer to pay costs, the insurers are not liable for the ex pens through the master's fault, unless that fault amounts to barratry, the owner, and not the insurer, must bear it." See also Goix v. Low, 1 Johns. Ca. 341; Andrews v. Essex F. & Mar. Ins. Co., 3 Mason, 6; Howland v. Mar. Ins. Co., 2 Cranch, C. C. 474. there is a loss caused by the unseaworthiness of the ship, but this unseaworthiness is caused by the negligence of the master and crew. We endeavor to present the existing condition of the adjudication on this subject in our note.1 1 This question, how far the underwriters are liable for a loss caused by a peril insured against when the vessel is in an unseaworthy condition, owing to the negligence of the master and crew, does not seem to be entirely settled by the authorities. It is very clear that the underwriters do not insure against the negligence of the master and crew, nor against losses arising directly from such negligence. And it was formerly held in England, that, where the loss was the direct consequence of such negligence, no action would lie, although the immediate cause of the loss was a peril insured against. Law v. Hollingsworth, 7 T. R. 160. The negligence being regarded as the causa sine qua non, the efficient cause of the loss. But in Busk v. Royal Exch. Ass. Co., 2 B. & Ald. 73, it was held that the underwriters were liable for the loss of a vessel by a fire caused by the negligence of the mate in lighting a fire in a stove, and not seeing that it was properly extinguished, the fire being regarded as the proximate, and the negligence as the remote, cause of the loss. In this case the insurance was against fire and barratry, and the court held, that, as the insurers had undertaken to indemnify the plaintiff for the wilful misconduct of the master and crew, it was not too much to say that they also meant to indemnify him against a loss arising from the negligence of the same persons. But the Supreme Court of New York, in a very similar case, decided two years previous, said: "The very circumstance of assuming the risk of barratrous conduct affords a strong This presumption that the underwriters are responsible only for such misconduct as amounts to barratry." Grim v. Phœnix Ins. Co., 13 Johns. 451, 458. seems much more in accordance with principle than the reasoning of the English court. It is now, however, settled both in England and in this country, that, if the loss is caused by a peril insured against, the underwriters are liable, although the remote cause be the negligence of the master and crew, and this whether barratry be insured against or not. Walker v. Maitland, 5 B. & Ald. 171; Shore v. Bentall, 7 B. & C. 798, n.; Bishop v. Pentland, 7 B. & C. 219, 1 Man. & R. 49; Dixon v. Sadler, 5 M. & W. 405, 415, 8 M. & W. 895: Redman v. Wilson, 14 M. & W. 476; Patapsco Ins. Co. v. Coulter, 3 Pet. 222; Waters v. Merchants' Louisville Ins. Co., 1 McLean, C. C. 275, 279, 11 Pet. 213; Williams v. Suffolk Ins. Co., 3 Sumner, 270, 276; Firemen's Ins. Co. v. Powell, 13 B. Mon. 311, 318; Draper v. Comm. Ins. Co., 4 Duer, 234, 289; St. Louis Ins. Co. v. Glasgow, 8 Mo. 713; Henderson v. Western Mar. & F. Ins. Co., 10 Rob. La. 164; Georgia Ins. & Trust Co. v. Dawson, 2 Gill, 365 ; Am. Ins. Co. v. Insley, 7 Barr, 223; Nelson v. Suffolk Ins. Co., 8 Cush. 477, 496. In Ohio, it was held in several cases, that the underwriters were not liable in the case in point. Gazzam v. Ohio Ins. Co., Wright, 202; Jolly v. Ohio Ins. Co., Wright, 539; Lodwicks v. Ohio Ins. Co., 5 Ohio, 433; Fulton v. Lancaster Ohio Ins. Co., 7 Ohio, 5; Howell v. Cincinnati Ins. Co., 7 Ohio, 276; but these cases have since been If the fault of his servants subjects the ship-owner to a claim for compensation by the shippers of cargo, this does not, of itself, exonerate the insurers of the cargo, although, if the shippers, in such a case, claim of the insurers, they must enforce their claim against the ship-owner for the benefit of the insurers, or transfer it to them, nor will any loss be attributed to the fault or misconduct of the master or crew, which can be as well accounted for by the perils insured against.2 The general principle, that one is answerable for the acts of his agent, only when those acts are done during the exercise of the agency, applies to the master and crew, so far that if they commit larceny, or violence, or any other crime, the owner cannot be responsible for this, nor lose his claim on the insurers for a loss arising from it, unless he can be connected with this act, either by the authority or directions he gave, or in some other way, and not merely by the fact that he appointed and employed them in his ship. Agents expressly appointed, or factors or consignees, represent the owner in all the business which they undertake, by his authority, to do for him, and he is liable for their acts or neglect while they so represent him. overruled by Perrin v. Protection Ins. Co., 11 Ohio, 147. In Massachusetts, it was held in an early case, that the underwriters were not liable for a capture occasioned by the negligence of the master. Cleveland v. Union Ins. Co., 8 Mass. 308, but this doctrine is virtually departed from in the case of Nelson v. Suffolk Ins. Co., supra. In Waters v. Merchants' Louisville Ins. Co., supra, two questions were raised, first, whether the underwriters were liable for a loss occasioned by the barratry of the master and crew; and second, whether they were liable for a loss occasioned by the negligence of the same persons. Speaking of the first, Mr. Justice Story said: "We have no hesitation to say, that a loss by fire caused by the barratry of the master or crew is not a loss within the policy. Such a loss is properly a loss attributable to the barratry, as its But no one is an agent of the proximate cause, as it concurs, as the efficient agent, with the element, eo instanti, when the injury is produced." There seems to be no good reason why the same line of argument should not apply to the case of a loss by negli gence, but the court held that it did not. It appears to us impossible to reconcile these cases with the authorities cited, ante, p. 381, n. 1. See also post, § 3, of this chapter. 1 Cullen v. Butler, 5 M. & S. 461, 466. 2 See Potter v. Suffolk Ins. Co., 2 Sumner, 197. 3 See Tanner v. Bennett, Ryan & M. 182; Ludlow v. Col. Ins. Co., 1 Johns. 335; Low v. Davy, 5 Binn. 595. In Wilbraham v. Wartnaby, Lloyd & W. 144, the agent of the consignor at the port of destination, acting under the impression that the importation was prohibited, and that he was doing the best owner for any purpose, although he performs a service for which the owner must pay, unless the owner voluntarily employed him. Therefore the owner is not responsible, so as to discharge the insurers, for a loss occasioned by a pilot whom he was required by law to take. Nor could he be for the loss caused by the ignorance or negligence of a pilot who was employed voluntarily, if he had exhibited to the master the customary evidence that he was duly commissioned. If, indeed, a master employed an incompetent person as pilot, whom he had no sufficient reason to believe competent, this would be an act of negligence on the part of the master, the effect of which upon the owner or insurers would be determined by the principles above stated. We have seen how much difficulty, and perhaps uncertainty, attends the question whether insurers are discharged by the wrongful acts of the master or crew, considered as agents of the owners. This difficulty in respect to the pilot, or the master's appointment of the pilot, or the master's interference with the pilot, is much increased by the diversity in the views of different courts respecting these questions. We give in our notes an abstract of the principal cases in which they have been considered.1 for all parties, gave information to the government, expecting thereby that he should obtain a restoration of the goods if they should be seized. They were seized before landing, and the underwriters set up in defence that but for the act of the agent they would not have been seized until after the expiration of the risk, but the court held them liable. 1 The question of the respective rights and duties of the pilot and master has come up in several recent cases in England, in regard to the liability of owners of vessels for torts or acts of negligence of the pilot, it being held, under their pilots acts, as we shall presently see, that, if the injury is occasioned by the negligence of the pilot alone, the owners are not responsible, but otherwise if there is negligence in the master, either in acts of commission or omission. In The Girolamo, 3 Hagg. Adm. 169, 176, the collision arose from the vessel's going on in a fog; and it was argued that the master was in pari delicto from not having interposed and brought the vessel up. Sir John Nicholl expressed a strong opinion in favor of this view, but left the point undetermined. In The Lochlibo, 3 W. Rob. 310, 1 Eng. L. & Eq. 651, it was held that it was solely the duty of the pilot to determine when the vessel should be brought up; and on appeal this decision was affirmed. Pollok v. McAlpin, 7 Moore, P. C. 427. The court said: "It was contended at the bar that in this case the impro priety of sailing through the Downs was so manifest that the captain ought to have refused, in spite of the pilot's opinion. But we cannot assent to this. It would be very dangerous to hold, that there can be any divided authority in |