The judges of the Circuit Court were opposed in opinion on the following point and question, viz., "whether, in this case, the contributory amount paid by the Paragon on account of the collision, was a direct, positive, and proximate effect from the accident, in such sense as to render the defendant liable therefor upon this policy."

And on the point and question aforesaid, at the request of the defendants, the same was stated by the said judges, and under their direction as aforesaid, it was ordered to be certified under the seal of the said Circuit Court to the Supreme Court of the United States, at their next session, to be by the said court final-natural that they should hold insurers liable for ly decided.

The case was submitted to the court on printed arguments by Mr. Webster for the plaintiff, and Mr. Theophilus Parsons for the defendants.

Mr. Parsons, for the defendants.

The principal question in this case is, whether the amount paid on account of the collision between the vessels, is a direct, positive and proximate effect from the accident.

this respect, between their law and ours, greatly weakens their authority, as precedents for us; not to dwell on this, it is very important to remember that they, as Emerigon and the rest, decide that insurers shall repay the contribution; but they decide under the influence of the law which requires the contribution. That is, on the continent, generally, perhaps, a rule like that of Hamburgh, dividing the loss from collision between two innocent vessels, prevails. To the continental writers it is familiar; they are accustomed to the law, and to all the usages going with the law, which law is perfectly well known there by everybody; and it is very the contribution, as if it were a component part of the collision; very natural, and, perhaps, very right. Not so with the English courts or our own; for here the law so dividing this loss, is unknown; we have none here, and our citizens make their bargains under no such contemplation; and therefore the courts of England decide rightly there, and our courts should decide like those of England, and unlike the continental writers, because our laws and usages are like those of England in respect to the liabilities of vessels in cases of collision, and unlike those of the continent. And our laws in respect to the liabilities of the vessels being alike, so should our laws be in respect to the obligations and implied contracts of insurers, in regard to that contract. We insured against damage to the Paragon, but we did not insure against damage to any other vessel.

We do not undertake to say that there are no contracts in which the remota causa spectatur, but certainly the law of insurance looks only at the proximate cause. Is the collision, then, in this case, a remote, or a proximate cause? If the law of Hamburgh is the proximate cause, and the collision the remote cause, then we are clearly discharged; because we do not insure against the law of Hamburgh, nor against any remote cause. But we do insure But there is another view of this subject against collision, and the question, therefore, which seems to us perfectly decisive. [*103 now takes this shape: is the law of Hamburgh, The continental authorities not only decide with its requirement of contribution, to be under the influence of their laws, but their taken as a part of the act of collision? policies differ from ours in this precise particu102*] *If these questions are to be settled lar. They all contain, in the enumeration of rather by the common sense than by the meta- the risks, "accidental running foul." A French physics of the law, then it would seem to be policy is in this form, and the court are reclear that the collision here is the remote cause; spectfully referred to it. In this policy, the for another cause, to wit, the law of Hamburgh,|phrase is, abordage fortuit; and phrases of comes between the collision and the contribution; and not only so, but it is this law which actually causes the contribution. The collision, then, is not the proximate cause, for that is proximate which lies nearest; and here another cause is interposed, and thus lies nearer.

similar import are in the policies of Amsterdam and Hamburgh, which are all the continental policies we have seen.

From this it will be obvious that the only authority where policies like our own were before the court-that is, the high authority of the English courts-is directly and most explicitly adverse to the claim of the plaintiffs. While the continental authorities, when they seem to favor it, are adjudicating upon policies which differ from ours in this precise respect, they refer to policies which, unlike ours, provide expressly for this very case. It would seem, therefore, that the force of these continental authorities is at once annihilated.

How are the authorities? In this country it is a new question, and there are no cases which bear very strongly upon it. But in England, just this question occurred very recently, and was fully reported in the fourth volume of Adolphus & Ellis, p. 420, De Vaux v. Salvador. This case, interesting both from its novelty and its importance, was fully considered, first by Lord Denman, and then by the Court of Queen's Bench, on a motion for a new trial; The rule, causa proxima non remota spectaand the decision was fully and pointedly for tur, is stronger in England than on the contithe defense, on precisely the grounds we have nent; stronger here than in England, the Sutaken here. Nothing can be more exact than preme Court at Washington having settled it the analogy between that case and this; noth-repeatedly and firmly. See The Patapsco Ining more precise and definite; and as we think, nothing can be more reasonable than the principles upon which this case is decided in England. Will this court decide precisely the same case, on precisely opposite grounds? Some of the continental authorities may seem to be against us. But, not to dwell on the circumstance, that their whole "doctrine of contract" rests upon the civil law, and that the difference, in

surance Company v. Coulter, 3 Peters, 222; also, The Columbian Insurance Company_v. Lawrence, 10 Peters, 507; also, Waters v. The Merchants' Louisville Insurance Company, 11 Peters, 213.

But let us look at these foreign authorities more closely.

The ordinances which make the insurers liable are the same which required equal contribu

tion in the case of collision without fault. And this may be right. Thus, in the Modern Code, of Commerce, in France, Article 50 touches the insurer; Article 407 regulates the effects of collision. This is right. The liability of the insurer should be conterminous with the liability of an innocent vessel. Where an innocent vessel is held by law liable for half the injury of collision, there the insurer should be held to make it good. But nowhere else. It seems, however, that a very serious question exists in France as to the liability of insurers to pay for damages where the collision arises from a fault which cannot be clearly put upon either party: and this doubt has arisen from the fact that the Code does not speak precisely upon this point, but expressly makes the insurers liable only where the collision is wholly fortuitous or without any fault. This doubt, or difference of opinion, goes strongly to show that the opinion of the continental writers is based upon, and most closely connected with their own ordinances; and thus it takes greatly, if not entirely, away the force of their authority over contracts made in countries where no such law is known; and it leaves in full power the distinct English authority, which is made under laws and usages, and upon policies that are like our own.

insured against-a collision, for instancethen all those consequences thereof are to be taken as parts of the same thing and as be longing to the collision, which flow from it by as natural and obvious, or inevitable consequences, or which are caused by a universal or general law, to which all parties to the insurance are supposed to refer equally in their contract. And all other consequences of the colli sion, except such as these, are to be considered as not necessary and component parts of the accident, but as connected with it by some local law, or some peculiar circumstance; and are, therefore, not to be considered as insured against by parties, who could not be supposed to have contemplated or anticipated them. This last point seems to us to contain the whole gist of the matter; nor can we perceive how the court can admit the plaintiff's claim, without distinctly contravening their own uniform and well-established decisions.

It may be proper to advert briefly to one other point. It may be suggested that the defendants are bound by the settlement in Hamburgh, as by a foreign adjustment of general average. But the distinction upon that point is perfectly clear and well settled. It is this: No foreign adjustment can determine for us what is a general average, but it may settle, definitively as between all the parties, that general average which is one by our [*105 own law, and has certainly happened. In other words, we can always go behind a foreign adjustment of general average, and deny that the facts happened, or that, if they happened, they constitute a general average; but if facts certainly occurred, which by our own law of insurance constitute a general average, then the adjustment in the foreign port is binding upon all the interests. But it is perfectly clear that this is not the present case, and that by our law of insurance, the facts in the present case would not constitute a general average.

If this case is to be likened to other cases of injury from supposed causes, we should sup104*] pose any such analogy favorable to us. Thus it is perfectly well known, that at Buenos Ayres, and in the East, at Sumatra, and in a Chinese port, it has actually happened, and more than once, that the newspapers of the land were full of the story, that for a collision or some mischief done or supposed to be done, by officers or crew, the ship has been seized, and only restored on payment of a heavy ransom; but nobody ever heard of a call on an insurance company for any such loss. Can the case be supposed to resemble a case of salvage? It is true that the loss by salvage, or by costs Mr. Webster, in reply to the argument for of court, is always cast upon underwriters; the defendants, submitted to the court that it though there the peril of the sea may be appeared to him that the first positions mainthought, in some sense, the remote cause, and tained by the counsel for the insurance comthe law the proximate cause. But there is a pany were questionable, to the extent claimed very great difference between these cases, and by him. He says, that however it may be in one that wholly destroys the analogy. The regard to some other contracts, the law of incosts of court and the payment of salvage be-surance looks only at the proximate cause of long to the universal law of insurance. Every man who insures or is insured anywhere, does so under the law of salvage; and his contract, therefore, acknowledges and respects this law. But it is just otherwise in the present case.

There is another material difference. In the present case, the contribution is in the nature of penalty, or at least, a satisfaction and compensation made by this vessel to the other. Not so with salvage. That proceeds wholly upon the theory that it is for the benefit of the wrecked or endangered vessel, and, therefore, for the insurers upon the vessel; and this principle is repeated in almost every case of salvage, as the reason why more is given to the salvors than mere wages, or compensation for time and labor. And these remarks lead us to the more general view of the case, and to what, we cannot but think, ought to be the governing and determining principle of it, namely, that where an accident occurs which is clearly

loss. That this is generally true may be admitted; but it is not universally true.

If the proposition were universal, it would certainly exclude salvage. Mr. Parson's answer to this is, that the payment of salvage is a loss, by the universal law of insurance. This is so: and this proves not that no case of loss by a remote cause is within the law of insurance, but, on the contrary, that one such case, at least, is within that law by universal consent. The same may be said of costs incurred in the course of judicial proceedings, and of payments on account of general average.

Mr. Parsons admits that collision is insured against, and that all consequences may be regarded as belonging to it which flow naturally from it, or which are caused by a general law, to which all parties may be supposed to have referred. But how can he distinguish, or what reason is given for a distinction, between consequences which immediately arise from nat

ural causes,
and those which arise as immedi- |
ately from the operation of the laws of the
place! A ship suffers collision; the immediate
natural effect is injury to her frame. The ne-
cessity of an expenditure for repairs is imme-
diately inflicted upon her; and for this expendi-
ture the underwriter is liable. Another ship
suffers a collision, and does injury to the ves-
sel with which she has come in contact, without
fault. The immediate consequence, by the law
of the place, is a charge on the ship, creating a
lien, for a contribution to the loss; and this
charge causes the necessity of an expenditure.
It is not easy to perceive a reason why one of
these cases should be within the policy and the
other not within it. The loss, in the latter
case, is a consequence of the accident, as neces-
sary, as certain, and as unavoidable as that in
the first. The charge becomes attached to the
ship; is an encumbrance, hindering her from
the prosecution of her voyage; keeping her
where she is, and removable only by an ex-
penditure. It is an obvious consequence of the
accident; and, in the language of Mr. Parsons,
an "inevitable" consequence. The party en-
titled to the contribution is as sure to claim
it as the carpenter who makes repairs is to
106*] demand payment. The expenditure is
as inevitable in one case as in the other.

The case of capture is one. If a neutral ship, insured against capture, be actually captured, carried in, and released, on payment of costs and expenses to the captors (a very common case) these costs and expenses are always held to be within the policy.

Suppose, again, that perishable articles, like provisions, are slightly injured by a storm, less than to the extent of five per cent., but that, before the vessel reaches her port, the effect of time, acting on the goods thus slightly injured, is such as to destroy all their value. Is there any doubt that, in such a case, the whole loss is to be referred to the storm, and so brought within the policy?

And, in regard to the converse of the case now before the court, allow the inquiry, what would have been thought of the rights of the parties, if the galliot herself had not been injured, but had injured the Paragon to the extent of a thousand dollars: and suppose the owners of the galliot paid one half of this sum to the master of the Paragon; could the plaintiffs in this suit have recovered *more [*107 than the balance? Could they pocket what they had received from the galliot, and recover the whole amount of the injury from the defendants?

With a general remark, these observations are closed.

This vessel was insured on time. The commerce of the world was open to her. She was to choose her own track, from nation to nation, or from zone to zone. She was expected, therefore, to fall under the dominion of various codes, and different laws; and to conform, as of necessity she must, to them all, as she should come within the sphere of their respective influences. She must encounter the dangers which belong to the place where she is, or where she goes; and while acting fairly, and in good faith, ought to be protected, as within the policy.

Mr. Justice Story delivered the opinion of the court:

This is the case of a division of opinion certified to this court by the judges of the Circuit Court for the District of Massachusetts.

Mr. Parsons supposes that the continental authorities are the less to be regarded, as the policies in those countries are different. Thus, he says, that "accidentally running foul" is one of the specifically enumerated causes of loss in a French policy. Be it so. But that fact does not help to settle the question, what loss is to be regarded as the proper consequence of running foul. "Running foul," or collision, it will not be denied, is as completely within this policy, as within a French policy; and the form or particular words of the policy, in either case, do not affect or touch the question now in controversy. How can it be said that the French policies provide for this very case? Do they expressly provide for the case of contribution for collision? They certainly do not. They only mention collision, leaving the law to settle what losses arise from it, and how these losses are to be settled. "This very case," in the language of my learned brother, The defendant, by a policy of insurance, is not a case in which any question is made, dated the 1st of April, 1836, insured the plainwhether a loss by collision is within a policy, tiffs, for whom it may concern, payable to them, American, English, or French. It is admitted eight thousand dollars, on the ship Paragon, for to be within them all. The question, and the the term of one year, commencing the risk on only question, in this case, is, whether the loss the 13th of March, 1836, at noon, at five per which has actually happened, is or is not a loss cent. The policy contained the usual risks, and by collision. And how, then, is the force of among others, that of perils of the sea. The those continental authorities, which declare declaration alleged a loss, by collision with that losses like this are losses by collision, an- another vessel, without any fault of the master nihilated? The slightest reason is not seen or crew of the Paragon; and also insisted on a to suppose that the decisions of the continental general average and contribution. The parties writers have been founded, either on the forms at the trial agreed upon a statement of facts; of the policies in use on the continent, or on by which it appeared that the Paragon was any ordinances. The law of the place imposes owned by the plaintiffs, and was in part incontribution in cases of collision. The con-sured by the defendants, by the policy above tinental writers are authorities to show that mentioned. On the 10th of November, 1836, the it follows, not from any ordinance or from any particular words in continental policies, but from the general law of insurance, and the reason of the thing, that the discharge of this contribution is a loss, occasioned by collision. Many cases might be put to establish the construction for which we contend.

Paragon sailed from Hamburgh, in ballast, for Gottenburgh to procure a cargo of iron for the United States. While proceeding down the Elbe, with a pilot on board, she came in contact with a galliot, called the Frau Anna, and sunk her. By this accident, the Paragon lost her bowsprit, jib-boom, and anchor, and sus

And first upon principle: That the owners of the Paragon have been compelled to pay this contribution without any fault on their side, is admitted; that it constituted a proper subject of cognizance by the Marine Court of Ham-case of a jettison at sea, to avoid a peril inburgh, the collision having occurred within the sured against. It is a voluntary sacrifice, and territorial jurisdiction of that city, is also ad- may be caused by the perils of the sea; but it mitted; and that the claim constituted a is ascertained long afterwards, and that charge or lien upon the Paragon, according to ascertainment, whether made by a court of the local law, capable of being enforced by a justice, or by an agreement of the parties, proceeding in rem, is equally clear. Why, then, would, in the sense of the maxim contended should not the loss be borne by the under- for in the argument, be the immediate cause writers, since it was an unavoidable incident of the contribution, and the jettison but a reor consequence resulting from the collision? mote cause; and the violence of the winds and The argument is that in the law of insur-waves a still more remote cause of the jetti

a barbarous coast, and is there burnt by the natives: it might be said that the proximate cause of the loss was the fire; and yet there is no doubt that the underwriters would be held liable on the policy, upon the ground that the vessel had never been delivered from the original peril of shipwreck.

to

son. Yet all such niceties are disregarded, and the underwriters are held liable for the loss thus sustained by the jettison, as a general average. It is no answer to say that this is now the admitted doctrine of the law; and therefore it is treated as a loss within the policy. The true question to be asked is, why is it so treated? General average, as such, is Illustrations of this sort might be pursued not, eo nomine, insured against in our policies. much farther, but it seems unnecessary. Those It is only payable when it is a consequence, or which have been already suggested sufficiently result, or incident (call it which we may) of establish, that the maxim, causa proxima non same peril positively insured against; as, for remota spectatur, is not without limitations, example, of the perils of the sea. The case of a and has never been applied in matters of inransom after capture stands upon similar surance to the extent contended for: but that grounds. The ransom is, in a strict metaphys- it has been constantly qualified, and constantical sense, no natural consequence of the cap-ly applied only in a modified practical sense, ture. It may be agreed upon long afterwards: the perils insured against. In truth, in the and if we were to look to the immediate cause, present case, *the loss occasioned by [*111 it might be said that the voluntary act of the the contribution is (as has been already sug110] party *in the payment was the cause gested) properly a consequence of the collision, of the loss. But the law treats it as far other- and in no just sense a substantive, independent wise; and deems the ransom a necessary means loss. of deliverance from a peril insured against, and acting directly upon the property. The expenses consequent upon a capture, where restitution is decreed by a court of admiralty upon the payment of all the costs and expenses of the captors, fall under a similar consideration. In such cases, the decree of the court allowing the costs and expenses may be truly said to be the immediate cause of the loss; but courts of justice treat it also as the natural consequence of the capture.

A still more striking illustration will be found in the case of salvage decreed by a court of admiralty for services rendered to a vessel in distress. The vessel may have been long before dismasted or otherwise injured, or abandoned by her crew in consequence of the perils of the winds and waves; and the salvage decreed in such a case would seem, at the first view, far removed from the original peril, and disconnected from it: and yet, in the law of insurance, it is constantly attributed to the original peril, as the direct and proximate cause; and the underwriters are held responsible therefor, although salvage is not specifically, and in terms, insured against.

These are by no means the only illustrations of the danger of introducing such an application of the maxim into the law of insurance, as is now contended for. Suppose a perishable cargo is greatly damaged by the perils of the sea, and it should, in consequence thereof, long afterwards, and before arrival at the port of destination, become gradually so putrescent as to be required to be thrown overboard for the safety of the crew: the immediate cause of the loss would be the act of the master and crew; but there is no doubt that the underwriters would be liable for a total loss, upon the ground that the operative cause was the perils of the sea. Suppose a vessel which is insured against fire only, is struck by lightning, and takes fire; and in order to save her from utter destruction, she is scuttled and sunk in shoal water, and she cannot afterwards be raised; it might be said that the immediate cause of the loss was the scuttling: but in a juridical sense, it would be attributed to the fire; and the underwriters would be held liable therefor. Suppose another ease, that of a vessel insured against all perils but fire and she is shipwrecked by a storm on

In the next plea, how stand the authorities on this subject? The only authority which has been cited by the counsel for the defendants to sustain their argument is the case of De Vaux v. Salvador, 4 Adolphus & Ellis's Rep. 420. That case is certainly direct to the very point now in judgment. It was a case of collision, where the assured had been compelled to pay for an injury done to another vessel by the mutual fault of both vessels, according to the rule of the English Court of Admiralty; which, in a case of mutual fault, apportions the loss between them. Lord Denman, in delivering the opinion of the court, admitted that the point was entirely new; and after referring to the above maxim, said: "It turns out that the ship (insured) had done more damage than she has received, and is obliged to pay the owners of the other ship to some amount, under the rule of the Court of Admiralty. But this is neither a necessary nor a proximate effect of the perils of the sea. It grows out of an arbitrary provision in the law of nations; from views of general expediency, not as dictated by natural justice (possibly) quite consistent with it: and can no more be charged on the underwriters than a penalty incurred by contravention of the revenue laws of any particular state, which was rendered inevitable by perils insured against." This is the whole reasoning of the learned judge upon the point; and with great respect, if the views already suggested are well founded, it is not supported by the analogies of the law, or by the principles generally applied to policies of insurance. The case of a penalty, put by the learned judge, does not strike us with the same force as it does his lordship. If any nation should be so regardless of the principles of natural justice as to declare that a vessel driven on shore by a storm should be forfeited because its revenue laws were thereby violated, it would then deserve consideration whether the underwriters would not be liable for the loss, as an inevitable incident to the shipwreck. At all events, the point is too doubtful in itself to justify us in adopting it as the basis of any reasoning in the present case.

The case before the King's Bench was confessedly new, and does not appear upon this point to have been much argued at the bar. It