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If goods are damaged by actual contact with sea-water, the underwriters are certainly liable, and it has been held that if part of the cargo is damaged by sea-water, and the vapor and gases arising from it injure another portion of the cargo which is insured, the underwriters on this latter portion are liable, although it was not immediately in contact with the sea-water.2


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is not liable for this sort of damage, because 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.” But in Garrigues v. Coxe, 1 Binn. 592, a leak occasioned by rats, without the neglect of the captain, was held to be a peril within the policy.

In Dale v. Hall, 1 Wilson, 281, a common carrier was held liable for damage done to goods by rats gnawing a hole in the vessel. So in another case where the rats gnawed the goods. Aymar v. Astor, 6 Cow. 266. In a similar case in England, Laveroni v. Drury, 8 Exch. 166, 16 Eng. L. & Eq. 510, where a cargo of cheese was damaged by rats, the defence was set up that the captain had two cats on board. This would have been sufficient to exonerate the carrier according to the maritime law. Consolato del Mare, c. 65, 66; Casaregis, disc. 23, n. 73 ; Roccus, n. 58; Emerigon, c. 12, s. 4, § 7, Meredith's Ed. 302. But the court held that the carrier was liable, on the ground that damage done to gocds by rats was not a peril of the seas, it being a kind of destruction not peculiar to the sea or navigation, or arising directly from it, but one to which such a commodity as cheese is equally liable in a warehouse on land as in a ship at sca.” The court said: “We further are very strongly inclined to believe that in the present mode of stowing cargoes, cats would offer a very slight protection, if

any, against rats. It is difficult to understand how, in a full ship, a cat could get at a rat in the hold at all, or at least with the slightest chance of catching it.”

But the question still remains, whether the underwriter would not be liable in case the rats should eat a hole in the ship, and water should enter and damage the cargo. In Laveroni v. Drury, supra, Pollock, C. B., said such a case might very likely be one of sea damage. And Alderson, B., added : “ Our judgment does not touch that question. A rat making a hole in a ship, may be the same thing as if a sailor made one."

On the authority of the recent cases in this country, we should consider the insurers liable in such a case, even if the rats remained on board through the negligence of the master, on the ground that the damage by water was the proximate cause of the loss, but should not hold them liable if the goods were gnawed by the rats, that not being a peril peculiar to the sea.

1 Baker v. Manuf. Ins. Co., Sup. Jud. Ct., Mass., March T. 1858, 14 Law Reporter, 203 ; Cogswell v. Ocean Ins. Co., 18 La. 84.

Montoya v. London Ass. Co., 6 Exch. 451, 4 Eng. L. & Eq. 500. See also, Rankin v. Am. Ins. Co. of N. Y., 1 Hall, 619. But in Baker v. Manuf. Ins. Co., Sup. Jud. Ct., Mass., March T. 1851, 14 Law Reporter, 203, it was held that the underwriters were only liable for the damage done to those goods with which the sea-water came into actual contact, although the plaintiff offered to prove that the injury was not caused by the usual dampness in a vessel's hold, but by the steam and moisture arising from goods damaged by an unusual quantity of water entering the hold in consequence of a peril of the seas. We have examined the policy in this case, and find that it did not contain the clause, now common in Boston policies, which exempts the

Damage caused by a vessel's grounding or stranding is a loss by a peril of the seas within the policy, provided it does not happen 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.1 And in such a case, if there be a heavy swell, which causes the injury, the underwriters are liable. It is sometimes necessary to heave a ship down, and if she is injured while this is being done, there seems to be no good reason why it should not be considered as having happened by a peril of the sea, but it has been decided otherwisé. Such a damage would, however, be included within the general clause.4

underwriters from loss of this kind, and which is as follows : “It is further agreed that the insurers shall not be liable for damage or injury to goods by dampness, rust, change of flavor, or by being spotted, discolored, or mouldy, unless the same shall be caused by actual contact of sea-water with the articles so damaged.” In a case where the policy contained this clause, it was held that the burden was on the assured to show that the damage was caused by actual contact with sea-water. Leftwitch v. St. Louis Perpet. Ins. Co., 5 La. Ann. 706.

1 See the cases of Magnus v. Buttemer, 11 C. B. 876, 9 Eng. L. & Eq. 461; and Potter v. Suffolk Ins. Co., 2 Sumner, 197, cited ante, p. 220, n. 1. In Fireman's Ins. Co. v. Powell, 13 B. Mon. 311, the policy did not expressly insure against loss or injury from grounding, but provided that the assured were not to abandon, as for a total loss, on account of the steamboat's grounding or being otherwise detained. It was held that, as grounding was one of the perils to which steamboats were liable, and as it was not specially excepted, it was included in the policy.

2 Fletcher v. Inglis, 2 B. & Ald. 315. This case was distinguished from that of Magnus v. Buttemer, supra, on the ground that the damage was not caused solely by the ship's taking ground in the usual course of her navigation, but by a heavy swell.

3 Rowcroft v. Dunsmore, before Lord Kenyon, C. J., cited in Thompson v. Whitmore, 3 Taunt. 227, as follows: "The ship was hove down, and while heaving down, she could not bear the strain : she was drawn on the land, where she bilged ; and the question was made, whether, it being necessary to perform this operation on her, this damage was occasioned by a peril of the sea. Lord Kenyon thought it was not a loss by a peril of the sea, but an accident that happened.” In Thompson v. Whitmore, 3 Taunt. 227, the vessel had been placed on the beach to be cleaned and calked, in a situation where vessels of the same size had been placed for repairs, and had remained in safety. The vessel lay one day in safety, but the next day when the tide rose she was found to be full of water, and the planks of the side on which she lay, and some of her foot hooks were broken. “ Mansfield, C. J., thought, that although the tides knocked away the shoars which supported the vessel, and thereby occasioned the mischief, yet, as the damage happened upon the land, it could not be considered as a loss sustained by the perils of the sea. This opinion was held to be

4 Ellery v. New England Mar. Ins. Co., 8 Pick. 14; Phillips v. Barber, 5 B. & Ald.

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.

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


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 ys, 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 prima 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

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

or care.


i 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. 8 See Buller v. Fisher, 3 Esp. 67.

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.?

C. For what Efects of Collision nsurers are Answerable. It has already been stated, in our first volume, 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 prorima non remota spectatur, he 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.

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