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The judges of the Circuit Court were op: / this respect, between their law and ours, greatposed in opinion on the following point and ly weakens thoir authority, as precedents for question, viz., "whether, in this case, the con- us; not to dwell on this, it is very important to tributory amount paid by the Paragon on ac. remember that they, as Emerigon and the count of the collision, was a direct, positive, rest, decide that insurers shall repay, the contri. and proximate effect from the accident, in such bution; but they decide under the influence of sense as to render the defendant liable there the law which requires the contribution. That for upon this policy.”

is, on the continent, generally, perhaps, a rule And on the point and question aforesaid, at like that of Hamburgh, dividing the loss from the request of the defendants, the same was collision between two innocent vessels, prevails. stated by the said judges, and under their di- To the continental writers it is familiar; they rection as aforesaid, it was ordered to be certi are accustomed to the law, and to all the usages fied under the seal of the said Circuit Court to going with the law, which law is perfectly well the Supreme Court of the United States, at known there by everybody; and it is very their next session, to be by the said court final natural that they should hold insurers liable for ly decided.

the contribution, as if it were a component part The case was submitted to the court on of the collision; very natural, and, perhaps, printed arguments_by Mr. Webster for the very right. Not so with the English courts or plaintiff, and Mr. Theophilus Parsons for the our own; for here the law so dividing this loss, defendants.

is unknown; we have none here, and Mr. Parsons, for the defendants.

citizens make their bargains under no such con. The principal question in this case is, whether templation; and therefore the courts of Eng. the amount paid on account of the collision be- land decide rightly there, and our courts should tween the vessels, is a direct, positive and decide like those of England, and unlike the proximate effect from the accident.

continental writers, because our laws and We do not undertake to say that there are usages are like those of England in respect to no contracts in which the remota causa spec- the liabilities of vessels in cases of collision, tatur, but certainly the law of insurance looks and unlike those of the continent. And our only at the proximate cause. Is the collision, laws in respect to the liabilities of the vessels then, in this case, a remote, or a proximate being alike, so should our laws be in respect to cause? If the law of Hamburgh is the proxi- the obligations and implied contracts of insur. mate cause, and the collision the remote cause, ers, in regard to that contract. We insured then we are clearly discharged; because we do against damage to the Paragon, but we did not not insure against the law of Hamburgh, nor insure against damage to any other vessel. 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; 1 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 contribu- similar import are in the policies of Amsterdam tion; and not only so, but it is this law which and Hamburgh, which are all the continental actually causes the contribution. The collision, policies we have seen. then, is not the proximate cause, for that is From this it will be obvious that the only proximate which lies nearest; and here another authority where policies like our own were because is interposed, and thus lies nearer. fore the court--that is, the high authority of

How are the authorities? In this country the English courts—is directly and most ex. it is a new question, and there are no cases plicitly adverse to the claim of the plaintiffs. which bear very strongly upon it. But in Eng. While the continental authorities, when they land, just this question occurred very recently, seem to favor it, are adjudicating upon policies and was fully reported in the fourth volume of which differ from ours in this precise respect, Adolphus & Ellis, p. 420, De Vaux v. Salvador. they refer to policies which, unlike ours, proThis case, interesting both from its novelty vide expressly for this very case. It would and its importance, was fully considered, first seem, therefore, that the force of these contiby Lord Denman, and then by the Court of nental authorities is at once annihilated. Queen's Bench, on a motion for a new trial; The rule, causa proxima non remota specta. and the decision was fully and pointedly for tur, is stronger in England than on the conti. the 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, surance Company v. Coulter, 3 Peters, 222; nothing can be more reasonable than the princi. also, The Columbian Insurance Company_v. ples upon which this case is decided in England. Lawrence, 10 Peters, 507; also, Waters v. The Will this court decide precisely the same case, Merchants' Louisville Insurance Company, 11 on precisely opposite grounds? Some of the Peters, 213. continental authorities may seem to be against But let us look at these foreign authorities

But, not to dwell on the circumstance, more closely. that their whole "doctrine of contract” rests The ordinances which make the insurers liaupon the civil law, and that the difference, in'ble are the same which required equal contribu


tion in the case of collision without fault. And | insured against-& collision, for instance this may be right. Thus, in the Modern Code, then all those consequences thereof are to be of Commerce, in France, Article 50 touches the taken as parts of the same thing and as be. insurer; Article 407 regulates the effects of longing to the collision, which flow from it by collision. This is right. The liability of the as natural and obvious, or inevitable conseinsurer should be conterminous with the liabil. quences, or which are caused by a universal or ity of an innocent vessel. Where an innocent general law, to which all parties to the insurvessel is held by law liable for half the injury ance are supposed to refer equally in their con. of collision, there the insurer should be held to tract. And all other consequences of the colli. make it good. But nowhere else. It seems, sion, except such as these, are to be considered however, that a very serious question exists in as not necessary and component parts of the France as to the liability of insurers to pay for accident, but as connected with it by some damages where the collision arises from a fault local law, or some peculiar circumstance; and which cannot be clearly put upon either party: are, therefore, not to be considered as insured and this doubt has arisen from the fact that the against by parties, who could not be supposed Code does not speak precisely upon this point, to have contemplated or anticipated them. but expressly makes the insurers liable only This last point seems to us to contain the where the collision is wholly fortuitous or whole gist of the matter; nor can we perceive without any fault. This doubt, or difference of how the court can admit the plaintiff's claim, opinion, goes strongly to show that the opin- without distinctly contravening their own uni. ion of the continental writers is based upon, form and well-established decisions. and most closely connected with their own or It may be proper to advert briefly to one dinances; and thus it takes greatly, if not en- other point. It may be suggested that the detirely, away the force of their authority over fendants are bound by the settlement in Ham. contracts made in countries where no such burgh, as by a foreign adjustment of general law is known; and it leaves in full power the average. But the distinction upon that point distinct English authority, which is made is perfectly clear and well settled. It is this: under laws and usages, and upon policies that No foreign adjustment can determine for us are like our own.

what is a general average, but it may settle, If this case is to be likened to other cases of definitively as between all the parties, that injury from supposed causes, we should sup- *general average which is one by our (*105 104*) pose any such analogy favorable to * us. own law, and has certainly happened. In other Thus it is perfectly well known, that at words, we can always go behind a foreign adBuenos Ayres, and in the East, at Sumatra, and justment of general average, and deny that the in a Chinese port, it has actually happened, and facts happened, or that, if they happened, they more than once, that the newspapers of the constitute a general average; but if facts land were full of the story, that for a collision certainly occurred, which by our own law of or some mischief done or supposed to be done, insurance constitute a general average, then by officers or crew, the ship has been seized, the adjustment in the foreign port is binding and only restored on payment of a heavy ran upon all the interests. But it is perfectly clear som; but nobody ever heard of a call on an that this is not the present case, and that by insurance company for any such loss. Can the our law of insurance, the facts in the present case be supposed to resemble a case of salvage ? case would not constitute a general average. [t 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 main. thought, in some sense, the remote cause, and tained by the counsel for the insurance com. the 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 in. costs of court and the payment of salvage be surance looks only at the proximate cause of long to the universal law of insurance. Every loss. That this is generally true may be ad. man who insures or is insured anywhere, does mitted; but it is not universally true. 80 under the law of salvage; and his contract, If the proposition were universal, it would therefore, acknowledges and respects this law. certainly exclude salvage. Mr. Parson's an. But it is just otherwise in the present case. swer to this is, that the payment of salvage is

There is another material difference. In the a loss, by the universal law of insurance. This present case, the contribution is in the nature is so: and this proves not that no case of loss of penalty, or at least, a satisfaction and com- by a remote cause is within the law of insur. pensation made by this vessel to the other. ance, but, on the contrary, that one such case, Not so with salvage. That proceeds wholly at least, is within that law by universal con: upon the theory that it is for the benefit of the sent. The same may be said of costs incurred wrecked or endangered vessel, and, therefore, in the course of judicial proceedings, and of for the insurers upon the vessel; and this prin- payments on account of general average. ciple is repeated in almost every case of sal Mr. Parsons admits that collision is insured vage, as the reason why more is given to the against, and that all consequences may be resalvors than mere wages, or compensation for garded as belonging to it which flow naturally time and labor. And these remarks lead us to from it, or which are caused by a general law, the more general view of the case, and to what, to which all parties may be supposed to have we cannot but think, ought to be the govern referred. But how can he distinguish, or what ing and determ ng principle of it, namely, reason is given for a distinction, between conthat where an accident occurs which is clearly seguences which immediately arise from nat.

ural causes, and those which arise as immedi- The case of capture is one. If a neutral ship, ately from the operation of the laws of the insured against capture, be actually captured, place? A ship, suffers collision; the immediate carried in, and released, on payment of costs natural effect is injury to her frame. The ne- and expenses to the captors (a very common cessity of an expenditure for repairs is imme- case) these costs and expenses are always held diately inflicted upon her; and for this expendi- to be within the policy. ture the underwriter is liable. Another ship Suppose, again, that perishable articles, like suffers a collision, and does injury to the ves-provisions, are slightly injured by a storm, less sel with which she has come in contact, without than to the extent of five per cent., but that, fault. The immediate consequence, by the law before the vessel reaches her port, the effect of of the place, is a charge on the ship, creating a time, acting on the goods thus slightly injured, lien, for a contribution to the loss; and this is such as to destroy all their value. Is there charge causes the necessity of an expenditure. any doubt that, in such a case, the whole loss It is not easy to perceive a reason why one of is to be referred to the storm, and so brought these cases should be within the policy and the within the policy? other not within it. The loss, in the latter And, in regard to the converse of the case case, is a consequence of the accident, as neces. now before the court, allow the inquiry, what sery, as certain, and as unavoidable as that in would have been thought of the rights of the the first. The charge becomes attached to the parties, if the galliot herself had not been inship; is an encumbrance, hindering her from jured, but had injured the Paragon to the exthe prosecution of her voyage; keeping her tent of a thousand dollars: and suppose the where she is, and removable only by an ex- owners of the galliot paid one half of this sum penditure. It is an obvious consequence of the to the master of the Paragon; could the plainaccident; and, in the language of Mr. Parsons, tiffs in this suit have recovered more (* 107 an "inevitable” consequence. The party en than the balance ? Could they pocket what titled to the contribution is as sure to claim they had received from the galliot, and recover it as the carpenter who makes repairs is to the whole amount of the injury from the de106') *demand payment. The expenditure is fendants ? as inevitable in one case as in the other.

With a general remark, these observations Mr. Parsons supposes that the continental are closed. authorities are the less to be regarded, as the This vessel was insured on time. The com. policies in those countries are different. Thus, merce of the world was open to her. She was he says, that "accidentally running foul” is to choose her own track, from nation to nation, one of the specifically enumerated causes of or from zone to zone. She was expected, loss in a French policy. Be it so. But that therefore, to fall under the dominion of various fact does not help to settle the question, what codes, and different laws; and to conform, as loss is to be regarded as the proper conse- of necessity she must, to them all, as she quence of running foul. "Running foul,” or cold should come within the sphere of their relision, it will not be denied, is as completely spective influences. She must encounter the within this policy, as within a French policy; dangers which belong to the place where she is, and the form or particular words of the policy, j or where she goes; and while acting fairly, and in either case, do not affect or touch the ques in good faith, ought to be protected, as within tion now in controversy. How can it be said the policy. that the French policies provide for this very case? Do they expressly provide for the case Mr. Justice Story delivered the opinion of of contribution for collision? They certainly the court: do not. They only mention collision, leaving This is the case of a division of opinion cer. the law to settle what losses arise from it, and tified to this court by the judges of the Circuit how these losses are to be settled. "This very Court for the District of Massachusetts. 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 plain. whether 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 1 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 in. contribution 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 Paragon sailed from Hamburgh, in ballast, for particular words in continental policies, but Gottenburgh to procure a cargo of iron for the from the general law of insurance, and the United States. While proceeding down the reason of the thing, that the discharge of this Elbe, with a pilot on board, she came in concontribution is a loss, occasioned by collision. tact with a galliot, called the Frau Anna, and

Many cases might be put to establish the sunk her. By this accident, the Paragon lost construction for which we contend.

her bowsprit, jib-boom, and anchor, and sur tained other damage, which obliged her to ance, which governs the present contract, it is put into Cuxhaven, a port at the mouth of the a settled rule that underwriters are liable only Elbe, and subject to the jurisdiction of Ham- for losses arising from the proximate cause of burgh, for repairs. Whilst lying there, the the loss, and not for losses arising from a recaptain of the galliot libeled the Paragon in mote cause, not immediately connected with the Marine Court, alleging that the loss of the the peril. Causa proxima non remota spectavessel was caused by the carelessness or fault tur. The rule is correct, when it is understood of those on board of the Paragon. The ship and applied in its true sense; and, as such, it was arrested; but was subsequently released on has been repeatedly recognized in this court. security being given by the agents of the own. But the question, in all cases of this sort, is, ers to respond to such damages as should be what, in a just sense, is the proximate cause of awarded by the court. Upon the hearing of the loss ? the cause, the court decided that the collision The argument in the present case, on the was not the result of fault or carelessness on part of the defendants, is, that the law of either side, and that, therefore, according to the Hamburgh is the immediate or proximate cause marine law of Hamburgh, the loss was a gen- of the loss now claimed, and the collision is eral average loss, and to be borne equally by but the remote cause. But surely this is an each party: that is to say, that the Paragon over-refinement, and savors more of metaphyswas to bear one half of the expense of her own ical than of legal reasoning. If the argument repairs, and to pay one half of the value of were to be followed "out, it might be [*109 the galliot; and that the galliot was to bear the said, with more exactness, that the decree of loss of one half of her own value, and to pay the court was the proximate cause, and the 108*) one half of the repairs of the *Paragon: law of Hamburgh the remote cause of this loss. the result of which was that the Paragon was But law, as a practical science, does not into pay the sum of two thousand six hundred dulge in such niceties. It seeks to administer dollars, being one half of the value of the justice according to the fair interpretation of galliot (three thousand dollars), after deduct; the intention of the parties; and deems that to ing one half of her own repairs (four hundred be a loss within the policy, which is a natural dollars). The owners of the Paragon having no or necessary consequence of the peril insured funds in Hamburgh, the captain was obliged against. In a just view of the matter, the colto raise the money on bottomry. There being lision was the sole proximate cause of the loss; no cargo on board of the Paragon, and no and the decree of the court did but ascertain freight earned, the Paragon was obliged to bear and fix the amount, chargeable upon the Parathe whole loss.

gon, and attached thereto at the very moment Upon this state of facts the question arose, of the collision. The contribution was whether in this case the contributory amount consequence of the collision, and not a cause. paid by the Paragon on account of the collision, It was an incident inseparably connected, in was a direct, positive, and proximate effect contemplation of law, with the sinking of the from the accident, in such sense as to render galliot; and a damage immediate, direct, and the defendants liable therefor. Upon this ques- positive, from the collision. In the common tion the judges were opposed in opinion; and it case of an action for damages for a tort done has accordingly been certified to this court for by the defendant, no one is accustomed to call a final decision.

the verdict of the jury, and the judgment of That a loss by a collision, without any fault the court thereon, the cause of the loss to the on either side, is a loss by the perils of the sea, defendant. It is properly attributed to the within the protection of the policy. of insur: original tort, which gave the right to damages ance, is not doubted. So far as the injury and i consequent thereon; which damages the repairs done to the Paragon itself extend, it is verdict and judgment ascertained, but did not admitted that the underwriters are liable for cause. all the damages. The only point is, whether But let us see how the doctrine is applied in the underwriters are liable for the contribution other analogous cases of insurance, to which, actually paid on account of the loss of the as much as to the present case, the same galliot.

maxim ought to apply, if there is any just This point does not appear ever to have been foundation for it here. If there be any comdecided in any of the American courts. It is mercial contract which, more than any other, proper, therefore, to examine it upon principle, requires the application of sound common sense and to ascertain what is the true bearing of and practical reasoning in the exposition of it, the foreign authorities upon it.

and in the uniformity of the application of rules And first upon principle: That the owners of to it, it is certainly a policy of insurance; for the Paragon have been compelled to pay this it deals with the business and interests of comcontribution without any fault on their side, is mon men, who are unused to deal with ab. admitted; that it constituted a proper subject stractions and refined distinctions. Take a 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 sca; 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 causo writers, since it was an unavoidable incident of the contribution, and the jettison but a re. or 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.


son. Yet all such niceties are disregarded, and, a barbarous coast, and is there burnt by tho the underwriters are held liable for the loss natives: it might be said that the proximate thus sustained by the jettison, as a general cause of the loss was the fire; and yet there is average. It is no answer to say that this is no doubt that the underwriters would be held now the admitted doctrine of the law; and liable on the policy, upon the ground that the therefore it is treated as a loss within the vessel had never been delivered from the origipolicy. The true question to be asked is, why nal peril of shipwreck. 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 in

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 constant. ical sense, no natural consequence of the cap- ly applied only in a modified practical sense, to 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 sug. 110*] 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 In the next plea, how stand the authorities acting directly upon the property. The ex- on this subject? The only authority which has penses consequent upon a capture, where resti- been cited by the counsel for the defendants tution is decreed by a court of admiralty upon to sustain their argument is the case of De the payment of all the costs and expenses of Vaux v. Salvador, 4 Adolphus & Ellis's Rep. the captors, fall under a similar consideration. 420. That case is certainly direct to the very In such cases, the decree of the court allowing point now in judgment. It was a case of col. the costs and expenses may be truly said to be lision, where the assured had been compelled the immediate cause of the loss; but courts of to pay for an injury done to another vessel by justice treat it also as the natural consequence the mutual fault of both vessels, according to of the capture.

the rule of the English Court of Admiralty; A still more striking illustration will be which, in a case of mutual fault, apportions found in the case of salvage decreed by a court the loss between them. Lord Denman, in deof admiralty for services rendered to a vessel livering the opinion of the court, admitted that in distress. The vessel may have been long the point was entirely new; and after referring before dismasted or otherwise injured, or to the above maxim, said: "It turns out that abandoned by her crew in consequence of the the ship (insured) had done more damage than perils of the winds and waves; and the salvage she has received, and is obliged to pay the decreed in such a case would seem, at the first owners of the other ship to some amount, view, far removed from the original peril, and under the rule of the Court of Admiralty. But disconnected from it: and yet, in the law of this is neither a necessary nor a proximate efinsurance, it is constantly attributed to the fect of the perils of the sea. It grows out of an original peril, as the direct and proximate arbitrary provision in the law of nations; cause; and the underwriters are held responsi. from views of general expediency, not as dic. ble therefor, although salvage is not specifical. tated by natural justice (possibly) quite conly, and in terms, insured against.

sistent with it: and can no more be charged These are by no means the only illustrations on the underwriters than a penalty incurred of the danger of introducing such an applica- by contravention of the revenue laws of any tion of the maxim into the law of insurance, particular state, which was rendered inevitable as is now contended for. Suppose a perishable by perils insured against.” This is the whole cargo is greatly damaged by the perils of the reasoning of the learned judge upon the point; sea, and it should, consequence thereof, long and with great respect, if the views already afterwards, and before arrival at the port of suggested are well founded, it is not supported destination, become gradually so putrescent as by the analogies of the law, or by the princi. to be required to be thrown overboard for the ples generally applied to policies of insurance. safety of the crew: the immediate cause of the The case of a penalty, put by the learned judge, loss would be the act of the master and crew; does not strike us with the same force as it but there is no doubt that the underwriters does his lordship. If any nation should be so would be liable for a total loss, upon the ground regardless of the principles of natural justice that the operative cause was the perils of the as to declare that a vessel driven on shore by sea. Suppose a vessel which is insured against a storm should be forfeited because its revenue fire only, is struck by lightning, and takes fire; laws were thereby violated, it would then deand in order to save her from utter destruction, serve consideration whether the underwriters she is scuttled and sunk in shoal water, and she would not be liable for the loss, as an inevitable cannot afterwards be raised; it might be said incident to the shipwreck. At all events, the that the immediate cause of the loss was the point is too doubtful in itself to justify us in scuttling: but in a juridical sense, it would be adopting it as the basis of any reasoning in the attributed to the fire; and the underwriters present case. would be held liable therefor. Suppose another The case before the King's Bench was con. case, that of a vessel insured against all perils I fessedly new, and does not appear upon this but fire: and she is shipwrecked by a storm on point to have been much argued at the bar. It

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