Biays v. The Chesapeake Insurance Company, Morean *299 v. The United States Insurance Company, and of Humphreys v. The Union Insurance Company,a have established the same rule, that the underwriter pays nothing if the loss of the memorandum articles be partial, and not total; and it is partial only when part of the cargo arrives in safety, however deteriorated in value, though another part of the cargo had been wholly destroyed by disasters on the voyage. This may now be considered as the settled law of this country on the subject.b (1) The French law requires that goods, subject by their nature to particular detriment or diminution, be specified in the policy; otherwise, the insurer is not liable for the losses which may happen to those articles, unless the insured was ignorant of the nature of the cargo at the time the contract was made.c This a valuable rule, calculated to guard against dispute and imposition. (4.) Of the usual perils covered by the policy. It will not be necessary, nor will this course of instruction permit me to do more, than take notice of a few of the prominent perils which accompany the voyage, and surround it with danger. The general and sweeping clause in the policy which follows the list of enumerated perils, "and of all other perils, losses and misfortunes, to the hurt, detriment or damage of the goods, ship," &c., cover other cases of marine dam ■ 7 Cranch, 415. 1 Wheat. Rep. 219. 227, note. 3 Mason, 429. b Wadsworth v. Pacific Ins. Company, 4 Wendell, 33. In that case it was decided, that the underwriter was not answerable for a partial loss on memorandum articles, except for general average, unless there be a total loss of the whole of the particular species, whether the particular article be shipped in bulk, or in separate boxes or packages. So, in Brooke v. Louisiana Ins. Company, 17 Martin, 530, where the insurance was of a cargo of mules as memorandum articles, it was held, that there must be a physical total loss of the whole number insured, to authorize a recovery. See 16 Martin, 640. 681, discussions on the same case, and Insurance Company v. Bland & Coleman, 9 Dana's K. Rep. 156 to S. P. • Ord. de la Mar. tit. Des Ass. art. 31. Code de Commerce, art. 355. (1) In 2 Arnould on Ins. 1038, the settled English rule is said to be, that if a cargo of perishable goods be made up of several distinct packages, each capable of distinct valuation, and any one of them be entirely destroyed or lost, that is an actual total loss of part. age of the like kind with those specially enumerated, and occasioned by similar causes." (1) The ignorance or inattention of the master or mariners, is not one of the perils of the sea. Those words apply to all those natural perils and operations of the *300 elements which occur without the intervention of hu man agency, and which the prudence of man could not foresee, nor his strength resist. Quod fato contingit, et cuivis patrifamilias, quamvis diligentissimo possit contingere. The imprudence, or want of skill in the master, may have been unforeseen, but it is not a fortuitous event.c (2) The insurer un Cullen v. Butler, 5 Maule & Selw. 461. b Pothier, h. t. No. 64. Gregson v. Gilbert, Park on Insurance, 83. Lodowick v. Ohio Ins. Company, 5 Hammond, 435. • In Straccha, Glossa, 22, casus fortuitus is defined to be accidens, quod per custoriam, curam et diligentiam mentis humanæ evitari non potest. Santerna, de Ass. part 3. n. 65, adds, ubi diligentissimus præcavisset, et providisset non dicitur proprie casus fortuitus. In Andrews v. Essex Marine Ins. Company, 3 Mason's Rep. 26, and in the case of Cammann v. N. Y. National Ins. Company, tried in the Superior Court in New-York, in December, 1834, it was held to be an unsettled question, whether a loss proceeding from the negligence of the captain, would affect the policy as fully as fraud; and the proper rule was suggested by Oakley, J., to be, that the neglect of the captain to use those precautions against damage, which a prudent man would have used under like circumstances, would be a case of gross negligence, within the meaning of the law. In the case of Bolton v. American Ins. Company, tried in the Superior Court of New-York, before Ch. J. Jones, (November, 1835,) it was held, that the underwriters were liable for a loss arising, not from negligence merely, but from gross negligence by the master. But it is very difficult to draw the line of distinction between the cases where gross negligence ends and ordinary negligence begins, or to distinguish between pure accident and accident from negligence. The courts seem to be approximating in effect to the French meaning of barratry, for they hold, that in a case not amounting to barratry within the meaning of the English law, if the proximate cause of the loss be a peril enumerated, the insurer is liable, though the remote cause of that loss was the negligence of the master or crew. Shore v. Bentall, 7 Barnw. & Cress. 708, note. Busk v. Royal Exchange Ass. Company, 2 Barnw. & Ald. 73. Walker v. Maitland, 5 Barnw. & Ald. 171. Bishop v. Pentland, 7 Barnw. & Cress. 219. Redman v. Wilson, 14 Meeson & Welsby, 476. In this last case the immediate cause of the loss was a peril of the sea, though the cause of the unseaworthiness was remotely the negligence in the loading of the vessel. Patapsco Ins. Company v. Coulter, 3 (1) The words in the general clause do not cover all losses, but are restricted to losses of a similar nature, and arising from similar causes to those enumerated. Hence, they do not cover a loss from the consumption of the cargo by the crew or passengers, or from a sale to pay for repairs. Moses v. Sun. M. Ins. Co. 1 Duer R. 159. (2) Magnus v. Buttemer, 9 Eng. L. & E. R. 461. dertakes only to indemnify against extraordinary perils of the sea, and not against those ordinary ones to which every ship must inevitably be exposed; but it is often difficult to discriminate between damage occasioned by the ordinary service of the voyage, and which falls upon the owner; and by a peril of the sea, for which the insurer is responsible. Damages resulting from the ordinary employment of the ship, or the inherent infirmity of the article, as the loss of an anchor by the friction of the rocks, or the wear and tear of the equipment of the ship, or her destruction by worms, or the diminution of liquids by the ordinary leakage to which they are naturally subject, or hemp taking fire in a state of effervescence, may be mentioned as instances of losses which are not within the policy, because they are not losses attributable to a casus fortuitus.a (1) It has even been a vexed question, Peters' S. C. Rep. 222. See, also, infra, p. 307, note, and 2 Sumner's Rep. 200. In Copeland v. N. E. Marine Ins. Co. 2 Metcalf's K. 432, it was decided, after great consideration, that if a vessel be seaworthy when the voyage commences, and the master afterwards becomes incompetent from misconduct, and the vessel be lost for that cause, the insurer was still held liable. Parke, Baron, in Dixon v. Sadler, 5 Mees. & Welsb. 405. Shore v. Bentall, note to 7 B. & Cress. 798. S. P., assuming the act was not barratrous. It was declared, in the American Ins. Co. v. Bryan, 26 Wendell, 563, that in the case of an insurance against barratry of the master and mariners, the assured is entitled to recover if the loss happened by theft, without proving due diligence and skill on the part of the master. The burden of proof of negligence, not barratrous in itself, and yet causing the loss, is on the insurer, if he claims to be excused from liability on the ground of the negligence or want of skill of the master or mariners. But in Perrin v. Protection Ins. Co. 11 Ohio Rep. 147, negligence in the agents of the insured was held to be no defence to the insurer. a Rhol v. Valin, tome ii. 81, Pothier, des Ass. No. 66. 1 Emerigon, 390. Parr, 1 Esp. N. P. Rep. 444. Martin v. Salem Marine Ins. Company, 2 Mass. Rep. 420. Boyd v. Dubois, 3 Campb. N. P. Rep. 133. Mr. Phillips, in his Treatise on Insurance, vol. i. 639, very properly adds, that if the injury to the ship by worms, arose from the loss, by a sea peril, of the protection of the copper sheathing, the insurer may reasonably be charged. But if the loss of the sheathing might have been repaired, before the vessel became exposed to the action of the worms, it was an act of negligence in the master, which would exonerate the underwriter. Hazard v. N. E. Marine Ins. Company, 1 Sumner, 218. The insurer is liable for all accidents arising from any extraordinary circumstances or cause, and not from the inherent weakness or ordinary wear and tear of the vessel. Potter v. Suffolk Ins. (1) There is no presumption that defects in the hull, found during the voyage, were produced by perils of the sea. The burden is on the assured to prove this. Bullard v. Roger Williams Co. 1 Curtis R. 148. whether damage done to a ship by rats was among the casualties comprehended under perils of the sea, and the authorities are much divided on the question. The better opinion would, however, seem to be, that the insurer *is *301 not liable for this sort of damage, because it arises from the negligence of the common carrier, and it may be prevented by due care, and is within the control of human prudence and sagacity.a (1) When a missing vessel shall be presumed to have perished by a peril of the sea, depends upon circumstances, and there is no precise time fixed by the English law. In the French law, a vessel not heard from is presumed to be lost after the expiration of one year in ordinary voyages, and of two years in long ones. The ordinances of foreign states have been very arbitrary on this point. Thus, by the ordinance of Hamburg, a ship was presumed to be lost, if bound to any place in Europe, and not heard from in three months; and by the Recopilacion des Loyes de Indias, in Spain, if a ves Company, 2 Sumner, 197. Fletcher v. Inglis, 2 Barnw. & Ald. 315. In the case of McCayo v. Merchants' Ins. Co., before the Supreme Court of Louisiana, February, 1845, it was held, that in a policy on a cargo of slaves, the insurer is not liable for a loss from an insurrection or mutiny of the slaves, unless there was an express assumption of risk from an insurrection, for that arises from the inherent vice of the subject insured, and this was held to be the English law. It was the case of The Creole, and the policy stated that the insurer should not be liable "for suicide, desertion or natural death, but chiefly for the risk of detention, capture and seizure of foreign power." ■ Dale v. Hall, 1 Wils. Rep. 281. Aymar v. Astor, 6 Cowen's Rep. 266. don, c. 5. art. 8, and Emerigon, tome i. 377, 378, who cites the Dig. 18. 2. 13. 6, and Casaregis, Straccha, Santerna, Kuricke and Targa, may all be considered as maintaining the principle that the owner, and not the insurer, is holden for an injury by rats; and the only case that I have met with directly to the contrary, is Garrigues y. Coxe, 1 Binn. Rep. 592. The opinion of Santerna, de Ass. part 4. n. 31, 32, is not consistent with his own principles; for, while he admits that an injury by rats cannot properly come under the name of casus fortuitus; magis est improvisus proveniens ex alterius culpa, quam fortuitus, he still concludes it to be a peril generally and absolutely assumed, when not controlled by usage. Hunter v. Potts, 4 Campb. N. P. Rep. 203. b Green v. Brown, Str. Rep. 1199. Gordon v. Bowne, 2 Johns. Rep. 150. Rep. 242. • Code de Commerce, art. 375. Brown v. Neilson, 1 Caines' Rep. 525. (1) Laveroni v. Drury, 16 Eng. L. & E. R. 510. a sel which goes to the Indies is not heard from within a year and a half, it is presumed to be lost. In the case of missing vessels, the loss is presumed to have happened immediately after the date of the last news; so that if an insurance be for three months, and the vessel not being heard from, a further insurance is made for a year, and the vessel *is never heard from, in that case the first insurer pays the loss.b *302 What degree of peril changes it from an ordinary to an extraordinary character, so as to bring it within the stipulation of indemnity, is frequently a perplexing question, to be determined by the circumstances of the particular case. And to prevent uncertainty and dispute, it is a settled rule, that the peril, whatever it may be, upon which the policy attaches, must be the proximate, and not the remote cause of the loss. Causa proxima non remota spectatur. (1) If a ship be driven ■ 1 Magens, 89, 90. Institutes of the Civil Law of Spain, b. 2. tit. 17. c. 1. b Boulay Paty, tome iv. 246. • Walker v. Maitland, 5 Barnw. & Ald. 171. It is upon the principle mentioned in the text, that the insurer on goods is not liable when they are sold by the captain of a ship to defray the expenses of repairs, rendered necessary by a tempest. Powell v. Gudgeon, 5 Maule & Selw. 431. Sarguy v. Hobson, 4 Bingham, 131. Damages to another vessel by collision, in which the vessel insured, according to the admiralty rule, in a case of mutual error, was bound to bear half the damage, were held by the K. B. not chargeable upon the insurer, for the proximate injury is what the insurer has to sustain, and not what the ship has to pay for damages to another, by an accident remote and incidental. De Vaux v. Salvador, 4 Adolph. & Ellis, 420. This decision was examined and questioned by Mr. Justice Story, in the case of Peters v. Warren Ins. Co. in the C. C. U. S. for Massachusetts, in October, 1839, 3 Sumner's R. 389. 1 Story's R. 463. S. C.(2) In this case it was held, that an accidental collision with a foreign vessel was not a case of general average by the American law, unless the loss be a sacrifice voluntarily incurred for the common benefit. 2 Phillips on Insurance, 2d edit. 181-190. In that case the ship Paragon came in collision in the river Elbe with the galliot Franc Anna, and sunk (1) Montoya v. London Ass. Co. 4 Eng. L. & E. R. 500. (2) This case was confirmed on writ of error by the Supreme Court of the U. S. See 14 Peters' Rep. 99. See, also, Hale v. Washington Ins. Co. 2 Story's R. 176. But Mr. Arnould is of opinion, that where the collision is entirely owing to the negligence of the master and crew of the insured, not amounting to barratry, the underwriters are exempt from liability 2 Arnold on Ins. 805. The Supreme Court of the U. S. (Gen. Mut. Ins. Co. v. Sherwood, 14 How. R. 351) held, that under a policy insuring against the usual perils, including barratry, the underwriters are not responsible to the assured for damages paid by him to the owners of another vessel, caused by a collision through the negligence of the master of the vessel insured. See, also, Mathews v. The Howard Ins. Co., 1 Kern. R., p. 1, in the Court of Appeals, reversing the decision of the Supreme Court, 13 Barb. R., 234, and adopting the rule laid down by the Supreme Court of the United States. |