The marine policies used in the United States, enumerate the perils against which they insure. These are usually perils
(w) Reed v. Cole, 3 Burr. 1612; Union Ins. Co. v. Commercial Ins. Co. 2 Curtis, C. C. 524, 19 How. 818; Mercantile Ins. Co. v. State Ins. Co. 25 Barb. 819; New York Bowery Ins. Co. v. New York F. Ins. Co. 17 Wend. 359.
(x) New York Ins. Co. v. Protection Ins. Co. 1 Story, 458; Yonkers, etc. Ins. Co. v. Hoffman, Ac. Ins. Co. 6 Rob. 816.
(y) New York Ins. Co. v. Protection Ins. Co. 1 Story, 458; Hastie v. De Peyster, 8 Caines, 190.
1 That if the re-insurer becomes liable pro rata the contract is one of indemnity, see Blackstone v. Alemania Ins. Co. 56 N. Y. 104; Illinois Ins. Co. v. Andes Ins. Co. 67 Ill. 342; Consolidated Ins. Co. v. Cashaw, 41 Md. 59: Cashaw v. North Western Ins. Co. 5 Bissell, 476. See also Glen v. Hope Ins. Co. 56 N. Y. 379.
* of the sea, fire, barratry, theft, robbery, piracy, capture, arrests, and detentions. Before considering them specifically, some remarks should be made of the general responsibility of insurers, and the limits to this responsibility.
The insured has no claim for any loss directly caused by his own personal wrong-doing; for, as Pothier expresses it, "I cannot validly agree with any one that he should charge himself with the faults that I shall commit." (z) Some question may arise when the wrong-doing is that of the agents of the insured. It is quite certain that insurers would not be, on general principles, liable for a loss which was caused by the wrong-doing, or by the mistake, incapacity, or negligence of the master or crew employed by the insured. (a) l It is, however, equally certain, that many if not most maritime losses are caused, in a greater or less degree, by the ignorance or carelessness of the master or crew, and that the insurers are held in such cases. It seems now to be generally considered, in England and in this country, that where the loss is caused by a peril insured against, the negligence of the master or crew which exposes the property to this peril, was only the remote cause of the loss, and therefore does not destroy the liability of the insurers. (aa) But questions on this subject are difficult, and the cases are very numerous and irreconcilable. (b) Undoubtedly the general principle, that a principal is answer(z) See Emerigon, s. xii. s. 11, § 1, Meredith ed. 290; Skidmore v. Desdoity, 2 Johns. Cas. 77; Goix v. Knox, 1 id. 337; Chandler v. Worcester Ins. Co. 3 Cush. 328. But see Thompson v. Hopper, 0 Ellis & B. 937, Ellis, B. & E. 1028.
(a) Rosetto v. Gurney, 11 C. B. 176; Himely v. Stewart, 1 Brer. 209; Vos v. United Ins. Co. 2 Johns. Cas. 187; Goix v. Low, 1 Johns. Cas. 841; Andrews v. Essex Ins. Co. 3 Mason, 0.
(aa) Phoenix Ins. Co. v. Cochran, 51 Peon. 148.
(b) The earlier cases leave the question in some doubt, but the principle seems well settled by the later authorities, that if the loss is caused by a peril insured against, the underwriters are liable, although the remote cause is the negligence of the master and crew, whether barratry be insured against or not. Walker v. Maitland, 6 B. & Ald. 171; Shore v. Bentall, 7 B. & C. 798, n.; Dixon v. Sadler, 5 M. & W. 415, 8M. & W. 895; Redman v. Wilson, 14 M. & W. 476; Waters v. Bierchants Ins. Co. 11 Pet. 213; Williams v. Suffolk Ins. Co. 3 Sumner, 276; Nelson v. Suffolk Ins. Co. 8 Cush. 496; Perrin v. Protection Ins. Co. 11 Ohio, 147. The difficulty arises in determining which is the proximate cause, and the case of Waters v. Merchants Ins. Co. supra, shows the difficulty of rightly determining this question. In that case 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. There seems to be no reason why the same rule should not apply to both classes of cases, but the court held that it did not.
1 A master of a vessel who takes passengers on board without a certificate, thereby incurring a statutory penalty, does not make the voyage illegal, so as to vitiate a policy effected by her innocent owner. Dudgeon v. Pembroke, L. R. 9 Q. B. 581.
able * for the acts of his agent, or a master for the acts of his servant, only where the acts are done in the actual exercise of the agency or service, would have some application to contracts of insurance. Therefore the owner would not be responsible for any personal crime or wrong-doing committed by an agent outside of his agency, nor lose his claim on the insurers for a loss arising from it.
It is another universal rule that insurers are not responsible for losses which are not caused by extraordinary risks; for a vessel is not seaworthy which cannot safely encounter ordinary maritime risks. (c) So also insurers are not liable for ordinary leakage or breakage, (d) or wear and tear. (e)
It is another rule, that insurers are not liable for property destroyed by the effect of its own inherent deficiencies or tendencies, (f) unless these tendencies are made active and destructive by a peril insured against. Thus, if hemp, which was dry when laden, be afterwards wet by a peril of the sea, and by reason of such wet ferments, or rots, or burns, the insurers would be liable, not only for the hemp, (g) but for the ship or cargo, if destroyed by the burning hemp.
It is another rule, that insurers are not liable for a loss caused by a violation of the laws of the country where the insurance was made, even if they expressly agree to be thus liable; because such a contract would be void for illegality. (h) Nor are they liable for violation of the laws of a foreign country respecting revenue and trade, unless there be evidence from the policy itself, or from notice to them, or knowledge by them, that it was the intention of the insured to incur this peril. Then they are liable, because they can lawfully make such a contract, if they choose to do so. (i) Policies often contain a warranty against prohibited trade. (j)
If there be an actual violation of a foreign law without the knowledge or the fault, either of the owner or his
(c) Crofts v. Marshall, 7 Car. & P. 597; Barnewell. v. Church. 1 Caines, 284; Coles v. Mar. Ins. Co. 8 Wash. C. C. 159.
(d) Benecke, Phil. ed. 448.
(e) Fisk v. Commercial Ins. Co. 18 La. 77; Coles v. Marine Ins. Co. 8 Wash. C. C. 159; Dupeyre v. Western Ins. Co. 2 Rob. La. 457.
(f) Emerigon, c. 12, § 9, Meredith ed. 311.
(g) Boyd v. Dubois, 8 Camp. 188.
(h) See Gray v. Sims, 3 Wash. C. C. 276; Farmer v. Legg, 7 T. R. 180.
(i) Pollock v. Babcock, 6 Mass. 234; Lever v. Fletcher, Park, Ins. 313; Andrews v. Essex Ins. Co. 3 Mason, 18.
(j) Andrews v. Essex Ins. Co. 3 Mason, 17; Richardson v. Maine Ins. Co. 6 Mass. 102; Parker v. Jones, 13 id. 173; Church v. Hubbart, 2 Cranch, 282; Higginson v. Pomeroy, 11 Mass. 104.
agents, the insurers may still be responsible. As if the master and crew did not know, and bad no sufficient means of knowing, that a blockade existed, or that laws or orders had been made, of which their ignorant violation had subjected the ship to seizure and condemnation. (k)
The general clause, "all other perils " is added in our American policies, but it is restricted in its extent and operation to perils of a like kind with those which are enumerated. (l) l If goods are damaged by actual contact with sea-water, the underwriters are certainly liable; (m) and we think that they are equally liable, if a part is damaged by sea-water, and the vapor and gases arising from it injure another portion, (n) 2 unless the policy contains the clause that the underwriters shall be exempt from loss of this kind. (o) If a vessel is stranded and injury is done thereby, this is a loss within the policy, unless it happens in the usual course of navigation, as where a vessel is destined to a tide harbor, where she expects to take the ground when the tide ebbs. (p) Here as well as elsewhere the rule of causa proxima non remota comes in and causes difficulty. Thus, an English vessel bound to a Confederate port in the late war, was insured, but warranted against "all consequences from hostilities." When she reached the coast, the lights had been extinguished by the Confederate authorities, and the ship stranded on the coast and
(k) See Wood v. New England Ins. Co. 14 Mass. 81; Archibald v. Mercantile Ins Co. 8 Pick. 70; Parker v. Jones, 18 Mass. 178.
(l) Cullen v. Butler, 5 M. & S. 461; Phillips v. Barber, 5 B. & Ald. 161; Perrin v. Protection Ins. Co. 11 Ohio, 147; Ellery v. New England Ins. Co. 8 Pick. 14; Devaux v. J'Ansan, 6 Bing. N. C. 519; Butler v. Wildman, 8 B. & Ald. 886; Jones v. Nicholson, 10 Exch. 28; Moses v. Sun Ins. Co. 1 Duer, 159; Caldwell v. St. Louis Ins. Co. 1 La. An. 86; Perkins v. New England Ins. Co. 12 Mass. 214; Frichette v. State Ins. Co. 8 Bosw. 190; De Peau v. Russell, 1 Brer. 441; Goix v. Knox, 1 Johns. 887; Skidmore v. Desdoity, 2 Johns. Cas. 77; Marcy v. Sun Ins. Co. 11 La. An. 748.
(m) Baker v. Manuf. Ins. Co. 12 Gray, 608; 14 Law Reporter, 208; Cogswell v. Ocean Ins. Co. 18 La. 84.
(n) Montoya v. London Ass. Co. 6 Exch. 461, 4 Eng. L. & Eq. 600; Rankin v. Am. Ins. Co. 1 Hall, 619. But see contra, Baker v. Manuf. Ins. Co. 12 Gray, 608; 14 Law Rep. 208. An examination of the papers in this case makes it questionable whether the court decided this point.
(o) Leftwitch v. St. Louis Ins. Co. 6 La. An. 706.
(p) Magnus v. Buttemer, 11 C. B. 876; Potter v. Suffolk Ins. Co. 2 Sumner, 197. And even then if the injury is caused by unusual sea, or whether the underwriters are liable. Fletcher v. Inglis, 2 B. & Ald. 816.
1 A sudden explosion of a steamer's boiler, in ordinary weather, under ordinary pressure, is a peril insured against by a marine policy in the ordinary form. West India, etc. Co. v. Home, etc. Ins. Co. 6 Q. B. D. 51.
2 But not for a loss of reputation to one part, whereby a less price is obtained, caused by a damage by sea-water to another part, giving rise to a suspicion in the trade that all was injured. Cator v. Great Western Ins. Co. L. R. 8 C. P. 552. See Cory v. Boylston Ins. Co. 107 Mass. 140.
was lost. Nevertheless the insurers were held, on the ground that the stranding was the proximate cause of the loss. (pp) l
If a ship is not heard from, it will be presumed after a reasonable time that she has perished by a peril of the seas. (q)
B. - Of Fire Generally.
Fire is generally mentioned in our printed policies among the risks insured against. If stricken out, as is sometimes done; or, we think, if only omitted, it is not a peril within the policy. (r) If the ship is insured against fire, and is burned purposely by the master, as the only means of saving her from capture by a public enemy, the insurers are responsible. It would be his duty to the State to burn her under such circumstances, nor are the insurers damaged thereby if they insure against capture. (s) If they do not insure against capture, it may not be certain that the insurers would be responsible.