advantage to himself, or of malice to the owner, or a disregard of those laws which it was the master's duty to obey, and which the owner relied upon him to observe. It is, in either case, equally barratry. If the ship be barratrously taken out of her course, that act takes the whole property from the possession of the insured, and produces a total loss.a But it is requisite that the loss resulting from the barratry must actually happen during the continuance of the voyage; and if the ship be not seized for a smuggling act until she has been moored twenty hours in safety at the port of destination, the insurer is discharged.b (1) We have seen that it is a vexed question, rendered the more perplexing by well balanced decisions, and in direct opposition to each other, whether a loss by fire proceeding from negligence, be covered by a policy insuring against fire. It has been made a question, also, whether a loss by any other peril in the policy, operating immediately and proximately upon the property, be chargeable upon the insurer, when the remote cause of that loss was the negligence or misconduct of the master and mariners, not amounting to barratry. Among a number of cases that bear upon the question, the case of Cleveland v. Union Insurance Company,c may be selected as a strong decision in favour of the insurer; and the more recent case of Walker v. Maitland, as East's Rep. 126. Hood v. Nesbitt, 2 Dallas' Rep. 137. Kendrick v. Delafield, 2 Caines' Rep. 67. Brown v. Union Ins. Company, 5 Day's Rep. 1. Cook v. Commercial Ins. Company, 11 Johns. Rep. 40. Grim v. Phoenix Ins. Company, 13 Johns. Rep. 451. Wilcocks v. Union Ins. Company, 2 Binn. Rep. 574. Millaudon v. New-Orleans Ins. Company, 11 Martin's Louis. Rep. 602. Abbott on Shipping, 5th Am. edit. Boston, 1846, 243. The insurer is answerable for a loss from barratry of the master, in attempting to smuggle, though the policy contains a warranty by the assured against illicit or prohibited trade. Suckley v. Delafield, 2 Caines' Rep. 222. Amer. Ins. Co. v. Dunham, 15 Wendell, 1. But deviation through mere ignorance, or a mistaken sense of duty, is not barratry. Phyn v. Royal Ins. Co. 7 Term, 505. Wiggin v. Amory, 14 Mass. R. 1. Hood v. Nesbitt, sup. Dixon v. Reid, 5 Barnw. & Ald. 597. b Lockyer v. Offley, 1 Term Rep. 252. 8 Mass. Rep. 308. d 5 Barnw. & Ald. 171. (1) Where the second mate, by the death of his superior officers during the voyage, had be come acting master, his barratry was held to be within a policy, which excludes the barratry of the "master." Tate v. Protection Ins. Co. 20 Conn. R. 481. one equally strong against *him, on that very point. *307 The doctrine in the last decision seems to be gaining ground as the prevalent and better opinion.a (1) II. Of the voyage in relation to the policy. The commencement and end of the risk depend upon the words of the policy. (2) The insurer may take, and modify what risk he pleases. The policy may be on a voyage out, or The authority of the case of Cleveland v. Union Ins. Company is much weakened by the circumstances attending it, as stated by Mr. Justice Story, in Williams v. The Suffolk Ins. Company, C. C. U. S. Mass., August, 1838. It has received, however, a confirmation by the decision of the Supreme Court of Ohio, after a full and learned discussion, in Fulton v. The Lancaster O. Ins. Company, 7 Ohio Rep. part 2. pp. 1. 25. It was there decided, that a river insurance policy, without any clause against barratry, did not cover a loss by a peril within the policy, the remote cause of which was the negligence of the master or crew. The court went upon the authority of former decisions in Ohio, and earlier English cases, and upon the principle that it was just and politic to hold the insurer discharged, when the more remote cause of the loss was negligence of the master or mariners, notwithstanding the immediate cause of the loss was a peril insured against. But I apprehend that the rule, that causa proxima non remola spectatur, has now become a controlling and settled rule, not only in the English,(3) but in the general American insurance law. The Supreme Court of Massachusetts, afterwards, in Delano v. The Bedford Ins. Company, 10 Mass. Rep. 354, recognised the general rule, that the immediate and direct, not the remote or contingent cause of the loss, was to be regarded in maintaining the right of the assured to recover; and in the Supreme Court of the United States, the doctrine has been repeatedly declared, in conformity with the English rule as laid down in the later cases. Patapsco Ins. Company v. Coulter, 3 Peters' Rep. 222. Columb. Ins. Company v. Lawrence, 10 ibid. 517. Waters v. M. L. Ins. Company, 11 ibid. 213. Williams v. Suffolk Ins. Co. 3 Sumner's R. 276, 277. Vide supra, 300. n., and infra, 374. Independent of all authority, the Ohio rule would appear to be the most just, and the other the most practicable, convenient and certain. It is now adjudged in Ohio, in conformity to the decisions of the Supreme Court of the United States, that on a policy of insurance on a steamboat destroyed by the explosion of the boiler, arising from negligence of the master, and other agents of the insured, the insurer was liable. Administrators of Perrin v. Protection Ins. Co. 11 Ohio R. 147. (1) This last English case has received a strong confirmation in the case Rodinan v. Wilson, 14 M. & W. Rep. 476. So, also, in this country. Georgia Ins. & Trust Co. v. Dawson, 2 Gill's R. 365. American Ins. Co. v. Insley, 7 Barr's R. 223. In this last case, the question is ably and thoroughly discussed, both upon authority and principle, by Ch. J. Gibson. (2) The risk may end before the vessel has actually entered the port; as when she has been moored for the requisite time as near the port as she could approach by reason of her too great draft to pass the bar. Whitwell v. Harrison, 2 Wels. H. & Gordon, 127. (8) Mr. Arnould lays this down as the settled English rule. 2 Arnould on Ins. 764, 765. VOL. III. 25 8 on a voyage in, or on the whole complex voyage out and in; or may be for part of the route, or for a limited time, or from port to port, in an intermediate stage of the voyage. If insurance on a ship be from such a place, the risk does not commence until the vessel breaks ground. If at and from, it then includes all the time the ship is in port after the policy is subscribed, if the ship be at home; and if abroad, it commences, according to a decision in Pennsylvania, only from the time she has been safely moored twenty-four hours after her arrival. But if a ship be expected to arrive at a foreign port, and be insured at and from that place, or from her arrival there, other cases say the risk attaches from her *first arrival. The risk is usually made to continue until the vessel has been anchored for twenty *308 A policy on time insures no specific voyage, but covers any voyage within the prescribed time, and the loss and damage the ship may sustain by the perils insured against within the limited period. Bradlie v. The Maryland Ins. Company, 12 Peters, 378. A deviation does not apply to a policy on time, for it has no prescribed track. Union Ins. Co. v. Tysen, 3 Hill, 118. b Garrigues v. Coxe, 1 Bin. Rep. 592. In Pittagrew v. Pringle, 3 Barnw. & Adolph. 514, the general principle was admitted to be, that if a ship quits her moorings, and removes, though only to a short distance, being perfectly ready to proceed on her voyage, it is a sailing on the voyage, though she be detained by some subsequent occurrence. It is otherwise if she be not in a condition for the voyage, when she quits her moorings and hoists sail. So, in Union Ins. Co. v. Tysen, 8 Hill, 118, the least locomotion, with readiness of equipment and clearance, satisfies a warranty to sail, though the vessel be afterwards driven back. It is otherwise in a warranty to depart, for that imports an effectual leaving of the place. In Treadwell v. Union Ins. Co. 6 Cowen's Rep. 270, the court said, that a policy at and from North Carolina to New-York, did not attach, at least as to seaworthiness, until the vessel had passed the boundary lines of the state, though the voyage had commenced when the vessel sailed with the cargo from Perquimions' river, at or near the town of Hertford, in that state. This was giving too narrow a construction to the words at and from; for though it had been justly held, that the warranty of seaworthiness has not the same extended application in as out of port, while the vessel is dismantled, and undergoing necessary repairs, (Smith v. Surridge, 4 Esp. N. P. Rep. 25,) yet, to every reasonable extent, such a policy covers the risk of the vessel while within port, or within the line of the state. But a policy on a vessel at and from her port of lading, means one indicated port or place only, and going to another within seven miles, after she had begun to take in cargo, is a deviation. Brown v. Tayleur, 4 Adolph. & Ellis, 241. • Motteaux v. London Assurance Company, 1 Atk. Rep. 548. Condy's Marshall, 261. 1 Caines' Cases in Error, 172. In Parmenter v. Cousins, 2 Campb. N. P. Rep. 235, the ship was insured at and from St. Michael to England, and the ship arriving there in distress, was blown out to sea and destroyed, after lying at anchor four hours in safety, and no longer; and the rule has been applied, though the loss proceeded from a cause, or death wound, (1) existing before the ship's arrival. But the risk above twenty four hours; and Lord Ellenborough ruled, that the insurer was not liable, because the vessel had not once been at the place in good safety, and the policy on the homeward voyage had not attached. It is surprising that the construction of the policy at and from should still remain to be settled. The words ought long since to have been defined and fixed with mathematical precision. Lord Hardwicke says, the policy attaches from the first arrival. Ch. J. Tilghman says, it attaches as soon as the vessel has been safely moored twenty-four hours. Lord Ellenborough requires the vessel to be at the place in good safety, whether the loss takes place within, or not until above twenty-four hours after she has arrived and anchored. Mr. Justice Porter, in Zacharie v. Orleans Ins. Company, 5 Martin N. S. 637, required the same anchorage for twenty-four hours in good safety. In Williamson v. Innes, 8 Bingham, 79, note, it was held, that on a homeward policy on freight at and from A., it attaches when the ship was in condition to begin to take in her cargo. There are excepted cases in which the risk in a policy at and from will not attach until the time of sailing, as where the ship is not finished, or is undergoing repairs, or where there is a particular usage to that effect. The general rule is, that in policies at and from a given place, the risk attaches while the vessel is at the place. Palmer v. Marshall, 8 Bing. 79; and in Taylor v. Lowell, 3 Mass. Rep 331, and which was confirmed in Merchants' Ins. Company v. Clapp, 11 Pick. 56, it was held, that in an insurance on cargo and freight at and from a foreign port, the policy attaches, though the vessel, while in port with the cargo on board, may need repairs to enable her to undertake the voyage. There is much nicety and difficulty in settling precisely when the policy attaches so as to charge the insurer, or when the voyage insured is, under the circumstances, to be considered as discontinued or abandoned. The case of Tasker v. Cunningham, 1 Bligh. 87, which floated through several courts in Scotland, and was finally disposed of in the British House of Lords, is a sample of much subtlety in discrimination. In Hutton v. The American Ins. Co. 7 Hill's N. Y. R. 321, Chancellor Walworth held, that if a vessel be driven by stress of weather, or by superior force, into a port of necessity, she is still at sea in reference to her port of departure, and destination, and of discharge. Lockyer v. Offley, 1 Term Rep. 252. Meretony v. Dunlope, cited in ibid. 260. Howell v. The Protection Ins. Company, 7 Ohio Rep. 284. In Peters v. Phoenix Ins. Company, 3 Serg. & Rawle, 25, the court overruled this case of Meretony v. Dunlope, and held, that where a vessel received her death wound during the voyage, or suffered damage above fifty per cent., she might be abandoned, though she had been mooored twenty-four hours in safety in the port of destination, and that it was of no moment at what time the loss was ascertained, if it occurred during the voyage. a (1) If the injury happened during the risk, it is no objection to a recovery that its extent was not ascertained until after the expiration of the risk. Knight v. Faith, Law Journal Rep. Q. B. p. 509, Dec., 1850. Where a loss occurred after the policy expired by the time of the place. of loss, but during its continuance by the time of the place of contract, the insurer was held to be liable. Walker v. Protection Ins. Co. 29 Maine R. 317. continues during quarantine, though after the twenty-four hours.a If the policy be to a country generally, as to Jamaica, the risk ends at the first port made for the purpose of unloading, after the vessel has been moored there in safety for twentyfour hours. But in France, where insurances are generally to the French West India Islands, the risk continues *309 until the cargo is discharged at the last place of *destination. So, if a vessel be insured from the West Indies to a port of discharge in the United States, and she sailed from the West Indies for Savannah, after inquiring at that port into the state of the markets, and procuring some repairs and supplies, and staying only a reasonable time for those purposes, and without discharging any part of her cargo, sails for Boston, it was held, that she was protected by the policy on her passage to Boston, as Boston was the port of discharge within the policy. If the policy contains a liberty to touch, stay and trade, or to touch and stay, or if there be a known usage of trade, the risk will be prolonged according to that usage, or the terms of the policy, and intermediate voyages may be covered by the insurance.e The risk upon the cargo is subject to much modification by the agreement of the parties, but it usually commences from the loading thereof aboard the ship. By the French law, the policy covers the goods while on the passage in lighters from the wharf to the ship, in the harbour where she is anchored, though not if the goods are to ascend or descend a river to the ship. The risk continues while the cargo is actually on board the ship, and no longer; though if the cargo be temporarily landed from necessity, during the voyage, it is still protected by the policy. If the policy, as is usual, covers the risk upon the goods until safely landed, then the risk con • Salvador v. Hopkins, 3 Burr. Rep. 1707. Gregory v. Christie, cited in Condy's Marshall, 273. Farquharson v. Hunter, Park on Insurance, 67. 1 Boulay Paty, tome iii. 419. Code de Commerce, art. 328. Boulay Paty, tome iii. 427. |