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If a ship be not heard from, after a reasonable time it will be presumed that she has perished; and in the absence of all evidence or opposing circumstances, the presumption of law will be that she has perished by reason of some peril of the sea; for in point of fact this presumption will be probable and reasonable. But the length of time which must elapse before this presumption arises, must depend upon the peculiar circumstances of each case.1

The voyage of the ship may be greatly lengthened and her return to port delayed by circumstances which will give rise to the question, whether the insurers are liable for the loss and expense thence arising. From the adjudications of this country, it would seem, that if a vessel goes out of her intended course in fact, and in good faith, for the purpose of refitting herself, and repairing damages which have arisen from a peril insured against, she

correct by the full court. See also, Phillips v. Barber, 5 B. & Ald. 161, in which case the court held that where a vessel was in a graving dock being repaired, in which there were two or three feet of water, and, while there, was, by the violence of the wind and weather, blown over and bilged, this was not a loss by the perils of the

seas.

1 Gordon v. Bowne, 2 Johns. 150; Brown v. Neilson, 1 Caines, 525. In this case a vessel insured on a time policy, twenty-four days before the expiration of the risk, set sail from Norfolk in Virginia, bound to New York, and was never heard from. The usual passage was from five to seven days, though there was evidence of one case where a vessel arrived safe after a voyage of forty days, and another of a voyage of sixty days. The court held that there was no time fixed by law after which a missing vessel should be presumed to be lost, and that it would not be reasonable to calculate on the utmost or greatest limit. See also, Patterson v. Black, 2 Marsh. Ins. 781; Watson v. King, 1 Stark. 121; Houstman v. Thornton, Holt, N. P. 242. The plaintiff must prove that when the vessel left the port of outfit she sailed on the voyage insured, and the convoy bond, executed at the custom-house, in which the port of destination is mentioned, is primâ facie evidence of this fact. Cohen v. Hinckley, 2 Camp. 51. When a vessel sails for a foreign port, it is not necessary to prove that she never arrived there, by witnesses from that port. Twemlow v. Oswin, 2 Camp. 85. Where goods are insured by a certain ship, and it is proved that she sailed on the voyage insured, and never arrived, and one of the plaintiff's witnesses testified that three or four days after the vessel sailed he had heard that she had foundered at sea, but that the crew were saved, it was held not to be incumbent on the plaintiff to call some of the crew, or to show that he had ineffectually endeavored to procure their attendance. Koster v. Reed, 6 B. & C. 19. So, if the ship is warranted free from capture and seizure, it is not incumbent on the plaintiff to prove that the loss did not happen by these perils, if the vessel has never been heard from, although the loss in the declaration is said to be by foundering at sea. Green v. Brown, 2 Stra. 1199. See also, Newby v. Read, Park, Ins. 85.

goes and remains while thus necessarily deviating, at the expense of the underwriters; and, that the costs incurred by the owner, for wages and provisions of the crew during the repairs, and during the deviation and delay for repairs, are to be repaid by the insurers.1

If the vessel enters a port in the course of the voyage, and is there detained by winds, ice, or other causes which might under other circumstances be classed among perils of the seas, the whole cost of such delay and detention must be borne by the owner, if the voyage insured is afterwards performed.2

B. When, and how far, Collision is a Peril of the Sea. The usual and common instances of collision are obviously produced by causes, which are most certainly among the perils of the sea. They are the winds, waves, currents, or tides. And so far as these cause a collision, there can be no question of the liability of the insurer. But where the collision is caused only in part by the extraordinary violence or unexpected operation of the wind or water, and in part by the negligence of the master and the crew, the question might arise, how far the insurers were responsible. And this question would seem to be still more difficult, when there was no extraordinary or unusual action of wind or sea, and none which might not have been, and should not have been anticipated and prepared for, and the collision took place, because the master and crew were wholly wanting in skill or care. And the case sometimes occurs, where the collision is purposely caused by the master or crew, and is to be attributed exclusively to their intention and act.

The answer to this question is, that although the insurers do not insure the ship-owners against negligence on the part of the master and crew, yet, as we have already seen, they are liable for damage caused by a peril of the sea, though that peril be put

Expenses of this nature are generally settled in this country, by a general average contribution, as we have seen in our first volume, to which we refer. See Vol. I. p. 294-296, and notes, where this question is fully considered. See also, post, tit. Partial Loss.

2 Everth v. Smith, 2 M. & S. 278.

3 See Buller v. Fisher, 3 Esp. 67.

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into operation by the negligence of those in charge of the vessel.1

If the collision be caused entirely by the wilful act of the master and crew, we should say, that the insurers were still liable, unless the circumstances were such, as to give rise to the question of barratry. We know no direct authority upon the question, how far such an act would be barratrous. At one time it would, perhaps, have been necessary to prove, in order to make it barratry, that the motive of the act was one of hostility to the ship-owner. We apprehend, however, that this would now be presumed, perhaps absolutely, from the act itself. And, that insure rs would not be liable for damages caused by a collision, intentionally and maliciously, and without excuse or necessity, caused by the master and crew of the ship insured, unless there was insurance against barratry.2

C. For what Effects of Collision nsurers are Answerable.

It has already been stated, in our first volume,3 that the rule in this country is, that the party in fault, must suffer his own loss and compensate the other party for the loss that he may sustain. But if neither be in fault, the loss rests where it falls. If both are substantially in fault, the loss also rests where it falls, by the rules of the common law, but is divided equally between the parties by the rules of the admiralty law.

The qualifications to this rule, and the applications of it, so far as they belong to the Law of Shipping are there considered. But in the Law of Insurance, this rule has given rise to questions of great difficulty and importance.

1 This was admitted by Curtis, J., in General Mutual Ins. Co. v. Sherwood, 14 How. 351; and cannot be disputed, if the present interpretation of the doctrine of causa proxima non remota spectatur, be correct. See Nelson v. Suffolk Ins. Co., 8 Cush. 477, and other cases cited in this section, all of which admit that the underwriters are liable for the damage done to the vessel insured.

2 We are not aware that this precise question has arisen; but it would seem, that in such a case, according to the authorities, the loss by collision would not be the proximate cause of the loss if superinduced by barratry, though it would if there had been no barratry, but merely negligence. See Waters v. Merchants' Louisville Ins. Co., 11 Pet. 213, cited ante, p. 213, note.

3 Vol. I. p. 187.

If a vessel suffers from a collision without any fault on either side, or with mutual fault, it has no claim against the other, and is subject to no claim by the general law of shipping. And here the insurers simply pay for the damage sustained, deducting one third off, new for old.

If the vessel suffers from the fault of another vessel, she has a claim for compensation against the vessel in default; and the insurers are still liable for the loss, but are subrogated to the rights of the insured, and so acquire their claim against the injuring vessel.

If the ship is injured by her own fault, and by the same fault and the same collision injures another, and is obliged to make compensation, the loss of the owners of the ship in default, has two elements; one, the direct loss his ship sustains; the other, the loss he sustains by being obliged to pay for the injury which his vessel has caused.

For the first of these, the insurers are certainly liable. Whether they are for the other, has been the subject of some litigation. In Massachusetts 2 and in New York it has been held, that the insurers are liable for the whole loss, consisting of both of these items, because the whole loss is caused by collision, and that is a peril insured against. But by the Supreme Court of the United States, reversing the decision of the Circuit Court,5 and also by a judgment of the Court of Appeals of New York,6 overruling a decision in the Supreme Court of that State, it is now held, that the insurers are only liable for the damage sustained by the vessel insured, if the collision is caused by the fault of the

1 Smith v. Scott, 4 Taunt. 126. It was proved in this case, that the collision was caused by the grossest negligence on the part of the colliding vessel. It was argued, that the negligence was the cause of the loss; but Mansfield, C. J., said: "I do not know how to make this out not to be a peril of the sea. What drove The Margaret against The Helena? the sea! What was the cause that the crew of The Margaret did not prevent her from running against the other, their gross and culpable negligence? but still the sea did the mischief."

2 Nelson v. Suffolk Ins. Co., 8 Cush. 477. It was so held also, by Mr. Justice Story, in Hale v. Washington Ins. Co., 2 Story, 176.

3 Matthews v. Howard Ins. Co., 13 Barb. 234.

4 Gen. Mut. Ins. Co. v. Sherwood, 14 How. 351.

5 Sherwood v. Gen. Mut. Ins. Co., 1 Blatchf. C. C. 251.

Matthews v. Howard Ins. Co., 1 Kern. 9.

7 Matthews v. Howard Ins. Co., 13 Barb. 234.

officers and crew of that vessel, and are not liable for the compensation due from it for the injury inflicted upon the other vessel. The general reason for this decision is, that the insurers of the ship in default, have not insured the owners of the ship injured,1 nor have they insured the owners of the ship in fault against a mere indebtedness thrown on them by the default of their own servants. And, while the negligence or other default of persons employed by the insured, may not be a good defence of the insurers against a claim for a loss, which is itself insured against, such negligence or default cannot be itself the foundation of a claim against the insurers.

The principle which governs this case is, that the proximate cause only is to be regarded, and the remote cause disregarded. And, while the law will hold the insurers of the ship in fault liable for the injury immediately caused to the insured by the negligence of their servants, it does not pursue the chain of effects, and hold these insurers liable to the owners for the

1 This point, though presented with great ability by the learned counsel for the defendants in the case of Nelson v. Suffolk Ins. Co., 8 Cush. 477, 480, does not appear to have been much relied on by the court in General Mut. Ins. Co. v. Sherwood, 14 How. 351. The argument is this: "A policy on a vessel insures that particular vessel. In fixing the amount of the premium and determining what sum shall be put at risk, the underwriter is materially influenced by the age, size, and strength of the vessel which is the subject of the policy. . . . . But the claim made by the plaintiffs introduces into the contract another vessel, about which the underwriter had no means of obtaining any knowledge, but which he is nevertheless, to stand as insurer of, against the peril of collision from negligence." The answer to this is, that there are many expenses and charges for which the underwriter of a ship is liable, which flow incidentally from a peril insured against, and are not a direct damage to the vessel; as where "a ship is insured against the perils of the sea, a part of the cargo is thrown overboard by reason of a peril of the sea, and the ship and owner become at once chargeable for a proportion of this loss of the cargo, and the underwriter is held bound by the policy to indem nify the owner of the ship for the sum he has to pay, to make up the loss of the cargo." 8 Cush. 492. But this hardly seems to meet the case. Suppose, for instance, that a house is insured against fire, and is burned by the negligence of the servants of the insured, and this fire communicates to an adjoining house, would it be pretended that the insurer was liable for the whole damage done to both houses, even though there should be a law compelling the owner of the house insured to pay the owner of the other house, for the damage done by his servants?

It was also urged, on the part of the plaintiffs, that the collision diminished at once the value of the vessel insured by the amount which she would have to pay, since there was a lien on her to that amount. But this point was not relied on by the court, and we think it is a sufficient answer to it, to say, that there was not necessarily a lien in rem, as the owners of the injured vessel might have proceeded in personam.

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