known, actually or constructively to the insurer, we think it must countervail the general rule, and an insurance either on goods generally, or on freight generally, would apply to such goods in the same way as if they were carried in the hold. And it has

1 In Milward v. Hibbert, 3 Q. B. 120, the precise question raised upon demurrer was, whether, in any case whatever, the ship-owner can recover of the underwriter the value of goods loaded on deck. After very elaborate arguments by Mr. Cresswell on one side and Sir W. W. Follett on the other, and a most thorough consideration of the authorities, both English and continental, by the court, it was held, "that the mere fact of stowing goods on deck will not relieve the underwriters from responsibility, inasmuch as they may be placed there according to the usage of the trade, and so as not to impede the navigation, or in any way increase the risk."

In Da Costa v. Edmunds, 4 Camp. 142, the court seemed to regard the question as one of concealment, and implied that if the fact that goods were to be carried on deck were communicated, the policy would cover them. Under this view the only effect of a usage would be to obviate the necessity of making any representation, and it would not strictly be applied to affect the construction of the language of the policy. There are also dicta in the case of the Taunton Copper Co. v. Merchants' Ins. Co., 22 Pick. 108, which point in the same direction. Putnam, J., said: “And we certainly agree, that if underwriters are informed of the kind of property, and such property is usually carried on deck for its own safety, particularly, as well as for the safety of the ship and the whole concern, they are to be answerable in the same manner as if they were expressly told that the property was to be carried on the deck of the ship." This certainly implies that a communication of the fact that the goods were to be carried on deck would bring them within the contract, although there were no express agreement to that effect in the policy. But the obvious effect of this view of the case would be to avoid the policy in toto for concealment, if the carrying of the goods on deck is not communicated, whereas, if the doctrine applied to these cases is, that general terms in a policy will not ordinarily cover goods placed on deck, the policy remains valid as to goods not carried on deck, while those which are so carried are excluded from it. The latter view appears to be the one taken in Milward v. Hibbert, supra, and in the decision of Taunton Copper Co. v. Merchants' Ins. Co., supra, and the nature of the usage required in the latter case is in conformity with that view. If the question were merely, whether the assured should have communicated the fact that the goods were to be carried on deck, it would seem to be sufficient to show a usage to carry goods in that manner frequently, for this would put the underwriters upon inquiry, and that is sufficient to discharge the assured from the obligation to make representations, and it would not be necessary to show a usage of the underwriters to pay in such cases. But if it is incumbent on the assured to show that terms, which ordinarily do not apply to goods on deck, are on the ground of usage to be applied to them in any particular case, it follows that a usage so to apply those terms must be shown. It is not enough to show that goods are sometimes or often so carried on a particular voyage, the very statement of the rule that goods so carried are to be excepted, implies that it is well known that they are so carried. Merely increasing the number of exceptions does not change the rule, but a usage must be shown to dispense with the rule. Taunton Cop

per Co. v. Merchants' Ins. Co., 22 Pick. 108; Smith v. Miss. F. & M. Ins. Co., 11 La. 142. If it could be shown that the goods insured were usually carried on deck, the very fact of insuring such goods would show an agreement to dispense with the rule.

been held, where the "catchings" in a whaling voyage were insured, and it was proved that the word included blubber which was usually carried on deck, that the underwriters were liable.1

So it has been held, that the rule does not apply to goods which can, with equal or greater safety to themselves and the cargo generally, be carried on deck. Taunton Copper Co. v. Merchants' Ins. Co.; Da Costa v. Edmunds.

But the fact that there has been a usage to stow goods, not liable to injury from dampness on deck, if there is a suitable cargo in the hold, was held not to be sufficient to charge the underwriters. Taunton Copper Co. v. Merchants' Ins. Co. Putnam, J., said: "The usage stops in limine, or at most, is only one step in the journey. The general rule of law which we have considered, supposes that goods are carried on deck. . . . . The usage does not find that underwriters have, in a single instance, ever paid a loss upon goods carried on deck, unless there has been a special contract or unless from the nature of the property the underwriters were by law to be presumed to have undertaken that particular risk." We cannot see, however, any good reason for requiring that a usage for the insurers to pay, should be required, if the usage of carrying certain goods on a certain voyage be established, and the insurers insured those goods for that voyage with a knowledge of that usage and without objecting to it. 1 Rogers v. Mechanics' Ins. Co., 1 Story, 603.

18*

CHAPTER VII.

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. And this principle has been carried so far as to discharge

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 cùm proponas. It is applied to the contract of insurance by the Guidon, and is repeated in all our books. Si casus evenit culpâ 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 praestetur. 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. Cas. 77; Goix v. Knox, 1 Johns. Cas. 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 were 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, 38 Eng. L. & Eq. 39. 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 acci

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, as a general rule, the insurers are not liable for a loss against which they insured the owner, if it be caused, directly, by the mistake, ignorance, or neglect, of the master or crew. 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

If she had been sea

dent unconnected with her unseaworthiness, she was wrecked. 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 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.

1 Am. Ins. Co. v. Ogden, 20 Wend. 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 expenses 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 that effect 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. Cas. 180, 187, the court said: "The act of the master must be referred to his principal who appoints him, and whenever a loss happens 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. Cas. 341; Andrews v. Essex F. & Mar. Ins. Co., 3 Mason, 6; Howland v. Mar. Ins. Co., 2 Cranch, C. C. 474.

this is eminently true of the law of insurance.

One of the

most difficult of those questions arises when 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 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. Koyal 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 presumption that the underwriters are responsible only for such misconduct as amounts to barratry." Grim v. Phoenix Ins. Co., 13 Johns. 451, 458. This 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., i McLean, C. C. 275, 279, 11 Pet. 213; Williams v. Suffolk Ins. Co., 3 Sumner, 270, 276; Fireman's Ins. Co. v. Powell, 13 B. Mon. 311, 318; Draper v. Comm. Ins. Co., 4 Duer, 234, 239; 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 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.