Hazard v. The N. E. Marine Insurance Company. her fore foot and the greater part of her false keel were gone; stern-post injured; and for the most part her sheathing and copper entirely gone; and many parts of the plank of the bottom were destroyed; and she was accordingly condemned as unworthy of repair. The immediate cause of the loss seems, by the course of the argument, admitted to have been the perforation of the keel by worms. Whether the keel was, or was not coppered on the sides, has been much contested, and the evidence is contradictory. But it seems admitted, that the bottom of the keel was not coppered, but only covered with the leather; and the sides of the keel, if not coppered, were also covered with leather. The question is, whether a loss by worms is, in the sense of the policy, a loss by the perils of the seas. If the jury shall find from the evidence, that in the Pacific Ocean worms ordinarily assail and enter the bottoms of vessels, then, in my opinion, a loss of the ship by worms, under such circumstances, in that ocean, is not a peril of the seas within the meaning of the policy. The policy is intended, not to cover ordinary perils, in the nature of wear and tear, in the voyage; but extraordinary perils. If the question were entirely new, I should upon principle adhere to this doctrine. But it appears to me, that it is fully settled by authority. This is a policy underwritten, and to be executed in Massachusetts; and therefore it is to be treated as a Massachusetts contract. It has been decided in the courts of this State, that damage, arising from an injury by worms, is not a loss within the policy;1 and my opinion is, that underwriters in Boston must be 1 Martin v. The Salem Marine Insurance Compauy, 2 Mass. R. 421. See also Rohl v. Parr, 1 Esp. Rep. 444. Benecke on Insurance, 456. Hughes on Insurance, 218. Phillips on Insurance, 251. Hunter v. Potts, 4 Camp. R. 203, Hazard v. The N. E. Marine Insurance Company. deemed to contract in reference to this course of decision ; and that consequently they are not liable for losses occasioned by worms. But, it has been contended on behalf of the plaintiffs, that, even admitting that the destruction of the ship has been by worms, and that such a loss is not, under ordinary circumstances, a loss within the policy; yet it appears by the evidence in this case, that the access of the worms to the keel was owing to the accident and damage done to the keel at the Cape de Verd Islands, by striking against a rock; and that under these circumstances the ultimate loss is to be attributed to this accident, and so is a loss within the policy. It is added, that in all cases, where the loss is inevitable in consequence of the accident, the loss is properly immediate, although it may not in point of time happen until long afterwards. In other words, a loss is deemed immediate, not because it happens eo instanti, but because it is inevitable. And examples have been put at the bar in illustration of this doctrine. My opinion is, that in no just sense can this loss, if by worms, be deemed a loss immediate upon the accidental injury alluded to. The general rule in cases of insurance is, that the loss is to be attributed, not to the remote, but to the immediate cause. Causa proxima, non remota, spectatur. The injury by striking on the rock at the Cape de Verd Islands, might have been the occasion, or even the remote cause of the loss of the ship; but it was not the immediate cause. The immediate cause was the perforation of the keel by worms. The loss happened many months after the accident. I have, therefore, no difficulty in stating to the jury, that if, in consequence of the injury sustained at the Cape de Verd Islands, the false keel was torn off, whereby the ship became exposed to the action of the worms, and that they thereby obtained entrance, and destroyed the ship, the loss would not Hazard v. The N. E. Marine Insurance Company. come within the policy, it being a consequential injury, against which the underwriters are not considered as taking the risk. But an additional answer to this part of the case has been given by the counsel for the defendants, upon which it becomes my duty to express an opinion. It is said, that, even if the loss could be thus traced back immediately to the accident at the Cape de Verd Islands; yet the underwriters would not be liable, because it was the duty of the master, if he could, (and it is not shown, that he could not,) to repair the damage so done; and if he did not, the subsequent loss is properly attributable to his negligence; and that the underwriters are not liable for a loss by worms occasioned by such negligence. Upon this point my opinion is, that if the injury at the Cape de Verd Islands was reparable, and could have been repaired there, or at St. Salvador, or at any other port at which the ship stopped in the course of her voyage, it was the duty of the master, and he was bound, to cause such repairs to be made, if they were material to prevent a loss. And if he omitted to make such repairs, because he did not deem them necessary; and if by such neglect alone the subsequent loss by worms was occasioned, the underwriters are not liable for the loss so occasioned. The Court have also been called upon by the plaintiff's counsel to instruct the jury as follows; first, that if the jury believe, that the underwriters would not have charged a higher rate of premium, if the vessel had been correctly represented, than they did charge, and that the insured had not intentionally misrepresented the facts, then the representation is not material, and does not defeat the policy; secondly, that if they believe, that the object of coppering the bottom of the keel is to protect against worms, and if they also believe the leather an equal protection, and that it was put on, in Hazard v. The N. E. Marine Insurance Company. that case the letter would not be considered a material misrepresentation. I feel myself compelled to refuse to give the instructions in the terms prayed. But upon the first point, I am of opinion, and so direct the jury, that if the fact stated was not material to the risk, and would not have varied the conduct of the underwriters, either as to the premium of insurance, or as to underwriting the policy at all, if the fact had been correctly represented, and the insured has not intentionally misrepresented the facts, then the misrepresentation will not prevent the insured from a recovery in this case, or defeat the policy. And on the second point, I direct the jury, that if the object of coppering the bottom of the keel was to protect it against worms, and if they believe, that leather is an equal protection, still, if the fact was, that the letter of instructions did contain a representation, which was and might have been understood as representing, that the keel was coppered, and if that fact was material to the risk, and might have induced the underwriters to ask a higher premium, or not to have underwritten at all, then the misrepresentation of its being coppered, when it was leathered, would avoid the policy. But if it was not a fact material to the risk, and would not have changed the conduct of the underwriters, either as to underwriting at all, or as to asking a higher premium, then the misrepresentation would not avoid the policy. With these directions, after summing up, and commenting on the facts, the Judge left the cause to the jury, who found a verdict for the defendants, upon which judgment was rendered accordingly. MEMORANDUM. A bill of exceptions was filed, and the cause was carried by a writ of error to the Supreme Court, where, upon argument at January Term, 1834, the judgment was reversed for error in stating, that the letter of instructions, under which the insurance was made, was to be understood Glidden et al. v. The Manufacturers' Insurance Company. according to the sense of the terms "coppered ship," as known and used in the place (Boston) where the insurance was applied for and made. But upon all the other points in the case, the directions of the Court were held to be correct. See 8 Peters R. 557. JOHN GLIDDEN AND OTHERS V. THE MANUFACTURERS' INSURANCE COMPANY. A vessel was insured from A to B, and her port of discharge in the United States. She went to C, and took in a return cargo for D, and stopped at S on the return voyage. The underwriters signed a memorandum, that the deviation to S should not prejudice the insurance, the vessel having sailed from thence to E. There was a total loss by shipwreck. Held, that the memorandum did not help the deviation of going to C instead of B; and that the misstatement of the return voyage being to E, made the memorandum of no effect. ASSUMPSIT on a policy of insurance. At the trial, which was upon the general issue, there was a demurrer to the evidence, upon which the cause was submitted to the decision of the Court, by Webster and Kinsman for the plaintiffs, and Sohier for the defendants. The facts and grounds of the case will sufficiently appear by the opinion of the Court. STORY J. On the 4th of August, 1830, John Kendrick & Co. caused a policy to be underwritten, for whom it may concern, payable to them in case of loss, (on account of the plaintiffs,) two thousand dollars on the schooner Orono, from Newcastle, (Maine,) to her port of discharge in Martinique, and at and from thence to her port of discharge in the United States, at a premium of five per cent., (the vessel being valued at $3000,) against the common perils. The vessel |