NORTHWEST 'TRANSP. CO. V. BOSTON MARINE INS. 00.
793
The only question in the case is whether the complainant should be denied a preliminary injunction because he has violated the agreement under which he acquired the exclusive right to the monopoly of the patent. As this question has not been argued, counsel will he heard upon it at the time to which the motion was continued.
NORTHWEST TRANSP.CO. f1. BOSTON
MA.RINE
INS.
Co.
(Circuit Court, E. D. MicMgan. February 20,1890.)
L
:MARINE INSURANCE-CAUSE OF
Loss. Where a stranded vessel is voluntarily scuttled to save her from a storm which began several hours after she strande(,i, the proximate cause of the loss arising from such scuttling is the storm, and not the stranding.
So
SAlliE.
A vessel which was going ina fog at an immoderate, rate ot speed was stranded because the master changed her course two minutes before the vessel would have reached the proper place for turning, he supposing that she had reached such point. HeLd, that the stranding was not caused by the negligent rate of speed.
In Admiralty.
On appeal from district court.
37 Fed. Rep. 220.
J' ACKSON, J'. The material facts of tbis, case, on which the questions oflaw arise and the rights of the parties depend, are the following: The steam-propeller Ont8.rio, owned by the libelant and valued at $55,000, was in May, 1883, insured againsttotalloss and general average, only to the limit of$49,500, in fire insurance companies, one of said fire compa.nies being the respondent, whose policy was for the sum of$17 ,5QO inEj,urance upon the body, tackle, apparel, and other furniture of said propeller. In the body of the policy the adventures and perils which the respondent undertook to bear and take upon itself were those "of the lltkes,',rivers, canals, fires" jettisons," that should come to the damage of said vessel orany. part thereof. It also contained the following exception to the generalliability of the respondent or insurer: "Excepting all perils, losses, or expenses consequent upon, or arising from, or caused by, the following or ,other legally excepted causes: Damages that may be done by the vessel hereby insured to any other vessel or property; incompetency of the master or insufficiency ,of the orew, or want of ordinary care and skill in navigating said vessel, and in loading, stowing, and securing the cargo of sail! vessel; rottenness, inherent defects, unloading, and all other unseaworthiness; theft, barratry, or robbery." Indorsed upon thepolioy was the following: "This policy is fliee from any loss caused by or in oonsequenoe of fire, and covers against total loss .and general average only." On October 11, 1883, while said policy was in full force, the the propeller, laden with a large cargo of miscellaneous merchandise, left the port of Sarnia, Ontario, bound for Duluth. She was in all respects properly oflicered, manned, and equipped. She had an amplysuffi-
'194' crew,with competent; experienced, and skillful master and matet' wbowere familiar with the route;,' 'Herca.rgo was properly Joaded, stiOwed,and"secured.and the:vesselwas entirely seaworthy, and free froql, NtwnIlass orothednherent Her cargo was insured by several companies other thanrespondentr,.. The Ontario reached the port of Kincardine at noon of October 12th, and left there about 1 P. M. of that day, the weather being fine, the lake smooth and calm, with only a slight wind from the southward · The course after leaving Kincardine is N. E. by N. to Point Douglass. From there to the "Dummy," the entrance of theco?rse is. E. E., the vessel clear of the shoa3:11t 01' nearl Nine-MIle Pomt on the: east- shore of Lake Huron. This portion of the route from Kincardine to Southampof maintained from ton is usually run: 011 tiine, and the Kincardine until Point Douglass is passed;, then it is chapged by for SOllthampton. The, master Ontario went off watch, and the soon afterleaving Kincardine. mRtetookcnargeof the'vessel's , , The propeller was running on time,upon the usual course, and at her nary speed ofabout hour.'" Abou t 2 o'clock P. M. " a very wet, deJ:lse, out from view alllalldmarks and natural objects. The propeller continued on her course at her ordinary speed of9 or 10 miles per hour. When she had run out his time, tQ.e mateca11ed ,the master, ,who at once ()l!me on deck, took his position ,in front of the pilot-house, and sent the mate to the mast-head to ascertain if anything could be seen'Over ihe' fog. The master, supposing that the propeller' clearedthe'point, assml'had run out her time, ported the vessel so' as to 'change ,her' course for $()uthampton, but finding from the v,essel's movements almost immediately afterwards that alle was getting into shall&wwater he at {)nce starboarded' her wheel and checked down. 'Dbe:propellehhowever, stranded upon the outer edge of Point, eight orniri8 miles hom the harb0r' of Southampton. If she had run one otllwo mihutes more on her original course, or ifshe had run 100 feet furtber"to the north and east before porting her wheel, the point been, cleared, and ·thestranding would not have occurred. When he came,upoll deck, a.t theca:n of the mate, the master did not examine his ,compass to asoerta.in,the ,e:ltact course of the vesseL Th'e stranding' wa$caused' by his porting' a minute too soon, a.nd occurred about2i :30!p'. M., while the dense fogwa.s still prevailing and obscuring alllandmarkS. Aftersttanding, efforts Were made to back her off, bUt without'-success. Then her anchor was putout, and the'attempt made to work her bow out into the lake by tne, use of the windlass. Whilethese efforts'were;being made the clerk ofthe 'boat was sent ashore to telegraph to Sarnia'fdi"the assistance a ,tug .to'pull the vessel off; She could have been read'ily and easily pulledofl"by a:g"Qodtug, without lightering her,as she ,was only aground at or on herlieel. ' . In her efforts:to',release herself, the Ontanobrokeher wheel and shoe;' .''Fhis was the onI). damage she sustaineddirectly from the stranding anditheefforts to get her off. 'fhe cargo was,jn no respect 'injured or damaged by,the stranding, or the attempts to releaseJhEfvessel. While the vessel was being gradually worked oft' by
or
NOItTHWEST'
fl. BOSTON MAMNE INS. CO.
795
the useoi and windlass) and about four hours afterthe stranding, the wintl,wliich had been from the southward and light when she to the northwest. commenoed blowing hard, and the,sea began· tonse, indicating the approach of a severe storm. The heavy sea prevented all further efforts to get the vessel off by means of the anchor and windla'Sll. The storm continued to increase in force and violence, and became so severe that the lady: passengers and children: ""ere put ashore in the early part of the night. About 10 o'clock at night, the stormtcontinuingto increase in violence,and the wind coming from the lake, the vessel commenced pounding, and was in imminent danger of being driven onto the shore and becoming a total wreck. To avoid 'this threatened and impending danger, the ·tnaster, after consulting with his offic.ers, opened the sea cocks, and scuttled the propeller. , As the result of this scuttling portions of tl;le cargo were greatly damaged, but the vessel her-. self and .the remainder of the cargo were Baved. .The storm continued. throughout the night of the 12th of October, and at daylight on the 13th (Sunday) it was still so severe and threatening that all the passengers were landed·. It continued during Sunday. Sunday night it blew sO hard that the officers and crew abandoned the vessel, expecting she would become a total wreck before morning; but all Monday morning, the storm having abated the officers and crew returned to the boat. The storm was so violent, and the8ea so heavy, that the wrecking tugs with /rteam 'pumps could not reach the Ontario until Monday afternoon. Agents of all or most of tl;i.e underwriters except respondent came with the tugs,.and took charge of the operations of getting the propeller off, which was accomplished on Tuesday,. the 15th of October, and done without special difficulty atter she was pumped out. She was towed with her cargo to Sarnia, where the underwriters in charge unloaded and disposed of the damaged portions of the cargo, and where the vessel was repaired. The matter of adjusting the loss was referred to a skilled adjusk>rof Toronto, most of the underwriters expressly consenting to the appointment and selection of eaid adjuster. Respondent's general agents were informed of his appointment, knew that he was proceeding to make the adjustmenton the basis of general average contribution, and when the adjustment was completed were notified of the result thereof, and made no objection to the proceeding or to the award.· All the writers on the vessel, except respondent, paid their respective proportions of the general average loss charged the Ontario under and according to the adjustment. The respondent refusing to recognize its liabiHty for any portion of the loss sustained by the Ontario, under the general average insured against; in, and by its said policy, the libelant filed its libel to recover of respondent its proper proportion of said general average loss. Several detenses to . .t he suit are set up by respondent in its answer; the one ultimately mainly relied on, however j being that there was a want· of ordinary care and skill in the navigation of the Ontario at the time the stranding occurred, and that suoh stranding was the direct or chief cause of the loss, thereby empting respondent from all Jia!:?ility therefor under the
706
FEDERAL REPORTER,
vol. 41.
mined in the policy. On the first submission of the case the learned district juoge adjudged and decreed that libelant was entitled to recover its damages for the loss set forth in the libel, and for the purpose of ascer· taining,the amount thereof a reference was made toa commissioner to take proofs and report the sum due libelant for such damage. When the commissioner's report, which found the amount due libelant from respondent to ,be $3,074.22, with interest from August 27 , 1887, the date of filing the libel, after disallowing the item $376.28 for new wheel and shoe for the ,propeller, and other items for telegraphing, wages and board of crew,-use and damage to hawser,and services of tugs and lighters in pulling off theOJitario. came before the court for final action thereon, both sides haVing reserved general exceptions thereto, the respondent asked a reconsideration of the question of its liability under the terms and provisions of its policy. Such reconsideration was had, and the court reached the conclusion that the master was guilty of negligence in approaching the land, and in etideavodllg to enter the harbor of Southamptonat the speed of9 or 10 miles per hour, in a very wet, dense, and heavy fog,as thick as ever occurred on Lake Huron, and that, if the loss had been totil.l,libelant would not have been entitled to recover by reason oithe exception in the policy exonerating the insurer from liability for all perils, losses, misfortunes, and expenses arising from the incompetency of the master or the insufficiency,bf the crew, or want of ordinary care and skill in navigating the The libel was accordingly dismissed, with costs. The reasons given in: support of. the conclusions reached by the court below are fully and clea.rlystated in the opinion of the learned district judge" reported in 37,Fed.:,Rep. 220. Libelant saeks by its appe(l1sr;reversal of the decree dismissing the libel, and.a: recovery against respondent. for its proportion of the general average'loss:arising from the scuttling of the vessel. The right of the district CO\1rt,. when the case came On for 'learing upon exceptions to the report .of the commissioner, to reconsider and reverse its decision as to respondent's liability , made when the reference was ordered, is not, and cannot be, ,questioned under, the au.thorities. Fourniquetov. Perkins, 16 How; 84; Green v. Fisk, 103U.S;518. Neithel'is thecorreotness of the amount apportioned and (chargeaagainst respondent by the report of the commissioner controverted by either side. But the two questions raised and discussed·before this court are'those on whioh the district court rested its .decisionq'viz.: . Jili,rst, was there, a want of ordinary care and skill in navigating the Ontario which led to her stranding? arid, second, was such strandip.g; in a legal sense, the cause of scuttling the vessel so aR to defeat libelant's right toreooterthe general average loss sustained therebv? It i; settled by the authorities that stranding is a peril of the sea and lakes, and that a policy of insurance against perils of the lakes covers a loss by stranding, although arisingifrom the negligence of the master or brew. in the absence of an' express exception to' the contrary, for the rea;. son that the insurer undertakes to indemnify the assured against losses from particular risks,. without any iiripliedundertaking on, the of
NORTHWEST TRANSP. CO. II. BOSTON MARINE INS. CO.
797
the assured that his agents shall use due care to avoid them. Insurance Co. v. Sherwood, 14 How. 351-365; Insurance Co. v. Adama, 123 U. S. 67, 73, 8 Sup. Ct. Rep. 68; Steam Co. v. Insurance Co., 129 U. S. 438, 9 Sup. Ct. Rep. 469; and Capeland v. Insurance Co., 2 Mete. 432, 448, 450. The policy in the present case contained such an express exception against negligent navigation, but the fact of stranding does not in and of itself raise a presumption or create any legal inference that it resulted from a want of ordinary care and skill in navigating the vessel so aato bring it within the operation of the exception. The stranding being a peril covered by the general terms of the policy, it raised a primafacie case of liability against respqndent for such losses thence arising as came within the provisions of the policy, and it devolves upon the respondent to show that such stranding was consequent upon, arose from, or W8.8 caused by, the negligent navigation of the vesseL The rule laid down in Tramportation Co. v. Downer, 11 Wall. 129, seems to me to impose this burden upon the respondent. But it is not very material upon which side rests the burden of proof of showing whether there was or was not a want of ordinary care and skill in navigating the vessel, 8.8 there is little or no controversy or conflict touching the facts bearing upon the question. No incompetency of the master or mate, nor 'insufficiency of the crew, is either claimed or established. The respondent vests its claim of a want of ordinary care and skill in navigating the Ontario mainly, if not solely, upon the fact that the vessel maintained her speed at the rate of 9 or 10 miles per hour in a very wet, dense, and heavy fog. This is the distinct act of negligence charged against the vessel, and relied on as the cause of her stranding. Bearing upon this alleged improper rate of speed, counsel for respondent calls attention to the thirteenth article of a Canadian statute entitled" An act tp make further provision respecting the navigation of Canadian waters, assented to May 7th, 1880," which provides that "every ship, whether a sailing ship or steam-ship,shall, in a fog or falling snow, go at a moderate,speed." By another· section the non-observanceof the rules provided by the act is deemed a willful default by the in charge of the vessel at the time, rendering him liable for any damage to person or property thence resulting. This Canadian law was neither pleaded nor proved. It is therefore doubtful whether this court can properly take notice of it; the rule being "that the courts of one country cannot take cognizance of the law of another without plea and proof." Steam Co. v. Insurance Co., 129 U. S. 445,9 Sup. Ct. Rep. 469, and cases cited. But there is no occasion for looking to or considering this Canadian act, as the twenty-first rule of our own navigation statute (section 4233, Rev. St.) provides that "every steam-vesselshall, when in a fog, go at a moderate speed." The purpose of this requirement, as stated in the case of The PennsyZ'IJania, 19 Wall. 133, 134, was to guard against danger of collisions. What is"a moderate speed" ,can hardly be precisely defined; it m,ust depend upon the circumstances of each case. In TM .portsmouth, 9 Wall. 682, the vessel's speed of 8 or 9 miles an hour in a fog was considered excessive. Other cases are to the same effect. I accordingly concur .wlth the distl'ict judge in the that the Ontario
:wasatfaultindMaintainirig'ilspeed of9 or io miles-an:hour in the dense fog. then prevailing. Regarding the' vessel's speed as being arid as'cOnstitutillg negligent ·navigation under thecircumstanees, the remai,nswhethel' this fault contributed to thestranding,-:tha'tris\icwhether the vesselIs' improper speed was in :any proper sense the cause iohueh'Pkanding.lf' her speed, however immoderate 'did!nm or had nothing to do withbriliging it 'about'lit cannot· be chltl'g-ed· against the vessel· suas to be 'of'auy R\'ail to respontlent;,,:InThe Farragut,'WWalL 334, 339,the absence ofaspecial as afaulk: The 'court said: "It is perfectly evident that,the:absenceofaspeciallookou.t had nothing at all to do with the happening of the accident,and: therefore it can have nothing to do with fix.ingtheliability of the' parties;" This principle has been repeatedly .recognized and annouaced.Applying it to the present case, I am unable, after a careful examination. of the:fucts and circumstances preceding and attending the stranding, to see thai the vessel's speed; whether moderate or immoderate, had any Mnneo'iion whatever with her stranding, or in any way contributed to Her rate of speed would, edly, have its bearing upon the force with 'which she would strike in runningupon shoals. It w\:luld 'thus affect the question as to the ease or difficulty of getting the \16s8el Off, 'ahd would be calculated to produce greater or lessoinjury in theevimt of striking, according to whether she 'was moving falltorslow.Btlt these are effects or incidental results of the stranding,and throw little or no light UPOIl 'the.' material question, whether thestrnnding waS cll.usedby the vessel's improper speed. Libel-ant seeks norecovety for, ncir does the policy j the partialinjilry to the Onta'rio8ustainedas the director immediate result of the stranding: Several captains of large experience and familiarity with the subject testifythat it was the general usage and custoin of Canadian vesselS navigating this route to run on time, ahd. maintain this ordinary speed, not-withstanding the prevalence o! fog, and that aside from the danger()f collision with ()ther craft this was,the: safer cotirse to pursue until within a short distance, say a mile or half mile, from the" Dummy," at or near the entrance to Southampton:harbor.This" Dummy" was four or five miles bey()nd the point at which the Ontario stranded. The reason assigned by said witnesses for the statement that it is safer to run on time ordinary speed than toch'eokup in a fog, is that this courseafl'ords a better reckoning as to the place and position of vessel, and location of landmarks. Hi is not shown that this general usage and cllstom was 'known to respondent; nor (:an it be relied on to jUt:itify a rate of speed forbidden by law. While this is s6 we may, howeyer, look to the facts and circumstances attending the vessel's running on time to ascertain 'What contributory connection, Hany, existed between the speed main"t&inedand On' running the course on tiII;le from Kincardine: to 'the place of stranding, a distance of 20 miles,' there was 'little oT no de-riation. Having run out her time and ina. proper direction, the master, supposing that the vessel had passed Nine-Mile Point, and that the proper position had consequently been reached for chang.
at
NORTHWESTTR,(NSP. "co.
v.
BOSTON MARINE INS.
co.
tbe direction tomtLke Southampton harbor, ported the wheel one or two minutes too soon. Hsbe had gone a bundred (eet fu,rther on her course,.N. E. by N., before porting, the point of ing would,llS the master supposed it was, have been cleared. It thus appeal'!! tbat .thevessel in running on time fell only one or two minUtes shortofp!lssing the shoal on which she struck. A fraction more of speed, pr a delay of two minutes in porting her wheel, would have prevented the stranding. How can it be said that the vessel's improper or ex;cessive rate of speed either caused or contributed to the disaster under such circuIijstances? The mistake of the master in porting a trifle too 800nwas not. due to the vessel's immoderate speed. Ordinary care arid skill. did not require the Ontario to stop when she encountered thefdg, andwaitl;lnti} it should clear up. No law imposed 8'Qch a requirement;' She had the right to keep moving, provided she maintained her proper Having r,un out her time at a known speed, whether moderate or the master .fairly and reasonably assumed that the selhad reached the position on her voyage where, in the course of proper navigl1tion. her wheel should be ported. He was mistaken, ported too sooP,. and grounded.· But what had the vessel's improper rate of speed to do with thl1t mistake, OriD bringing it about? I am unable to see anyconnection whatever; It has not been claimed that the master's act in portthe vessel's wheel one or two minutes too soon was, under the circumstances, a want of ordinary care and skill in navigating the vessel. Tested by the authorities the master's mistake which led to the stranding was not negligent. In BrfYW'fl,v. Itynn, 81 Pa. St. 513"lt is said that "ordinary care, skill,. and diligence is such a degree of care, skill,and diligence as men of ordinary prp.dence under similllircircumstances usuanyemploy." In' the 0186, 15 Wall. 524, the supreme court say that "the rule from theln [the authorities] is that the measure of care against accident, Wbich one must take to avoid responsibility, is that which a ordinary prudence and caution would use if his own interests were to:9a affected, and the whole risk were his own." The court in that case,ll.fter adopting the definition of negligence as the omission to do which a l'easonable man, guided by,those considerations 'Yhi,ch ordinati,ly regulate the conduct of human affairs, would do, 'or doing which a prudent and reasonable Ulan would not dO, :furtherElay that "it [negligencelmust be determined in all cases by refto tile situation and knowledge of the parties, and all·the ant circuWcstances." No proof is introduced to show that the act of 'tile lIlasteJ'!.in,porting the vessel's wheel when he did; and which carriEld'her agronnd, was.: under the circumstances, either negligence or bad sea": lIl1lnllhip. :My conclusions on the first branch Of the ;(lase are that, while Yl;l8selw.asat fault in maintaining too high a rate ofspeed in the fog; want of proper navigation neithercauslrl nor contributed totllestr!ludingj and that the mistake of the masteriu porting toosoOb.,· the stranding, was not such want of ordinary care and' the vessel as. brought it within the exception of the poli9Y" ,:'1;;1 .
800
vol. 41·
.'But,suppqse it be conceded 'that the stranding resulted from such want ""nd skill in navigating. the vessel as came within the exception of .does it follow that libelant's right to for the genera!,ayerageloss arising from the subsequent voluntary scuttling thereof, whereby apoJ,"tion of the carg() was damaged, is thereby defeated? The determination of tbis questi()n depends upon tbe point whether the voluntary can properly be treated or regarded as the immediate 01.' result or consequence of such negligent stranding; in other words, whllther snch stranding was the proximate cause of the scuttling. The learll;ed district judge reached the conclusion, on which the libel was that the storm which occasioned the scuttling of the vessel "was such a consequence of the stranding as might have been reasonably anticipated, and <?ught not, ,to be considered as a distinct, independent cause of tne scuttling." ,After a careful tion ofthe facts of this case, andofthe authorities bearing upon the subjecttI am unable to concur in 'this opinion and conclusion of the district.judge. In cases where two causes of loss concur it is often a matter of COnsiderable difficulty tocotrectly apply the well-settled maxim, "Proxima cauaa non remota spectatur," and deterniine which is to be regarded as the efficient and which the remote cause of auch loss. While recognizing the l'uleoflooking only to the proximate or predominating cause of loss, the coilrts have differed in its application, and the decisions Oll the subject are tnmany cases not easily reCollCilE,ld. The .particillar facts and circumstances of each case have largely controlled and determined the application ·of the settled maxim. In the present case the stranding of the vessel, though negligently done, did not operate to suspend the policy' as to other and distinct perils covered by its! terms. While the stranding continued the policy was in full force and operation for the assured's protection as to a11Y and all other perils of the lakesagainst which the insurers undertook to indemnify libelant. The fact that storms, with attendant heavy seas, D;lightbe reasonably anticipated,. did not operate to take the perils thence arising out of, the. operation of .the policy. No snch.effect is to be given to the words of the exception exempting the insurer from liability for qamages consequent UPOD, cfulsed· by, or arising from want of ordinary care and skin· in navigating the vessel. These words are the words of the insurer, an,d not those of the assured. This exception is in no sense n warranty on the part of: the assured against negligent navigation, which affects the policy generally, or its continuance nsto risks not directly connected with or resulting from such negligence. The legal effect and operation of the exception is,merely to take a particUlar risk and resulting damage out of the policy, ,which,but for the exception, would be comprehended, in the contract.in the, event of total loss or general average. Stranding waS.80 peril of the lakes, 'covered by the general terms of the 'policy. of the vessel, or It general average lossthencearising, would raise a <Jase of prima facie liability against the insurer. The whole scope and purpose of said exceptiqn was to exonerate the respondent from liability from all perils, losses, misfortunes, expenses, or dam..
NORTHWEST
CO. V. BOSTON MARINE INS. CO.
801
ages consequent upon, arising from, or caused by a Cl want of ordinary care and skill in navigating said vessel." It has no bearing upon risks and damages covered by the policy, which cannot properly be considered as consequent upon, arising from; or caused by such want of ordinary care and skill in the vessel's navigation. Yeaton v. Fry,5 Cranch, 335. What perils, losses, misfortunes, expenses, or damages can properly be regarded as consequent upon, arising from, or caused by the alleged negligent stranding of the vessel? They are manifestly limited to such and such only as are the direct, immediate, or proximate consequence Of result of such stranding, and do not extend to the remote consequences thereof. This limitation upon the term of the exception is sanctioned by the case of Insurance Co. v. Adams, 123 U. S. 67,74, 8 Sup. Ct. Rep. 68, where the policy contained the provision that the insurer should not be liable for loss occasioned by " the derangement or breaking of the engine or machinery, or any consequences resulting therefrom." It was" held that this exception related" to losses of which the derangement or breaking is the proximate cause, and not to such as are "a remote conse· quence of either." No injury whatever to the Ontario's cargo as the direct or proximate consequence of her negligent navigation or her stranding as an accomplished act, nor did the vessel herself sustain any material Of recoverable damage therefrom. The stranding did not directly endanger or imperil either -the vessel or her cargo. It temporarily delayed her voyage, and while thus delayed another peril arises in the shape of a Severe storm of force and violence, and attended with such heavy seas as to make it probable that the vessel would be driven ashore and become a total wreck, to avoid which threatened and imminent danger she WItS voluntarily scuttled. Clin it be maintained that this storm, which arose four or fiVE: hours after the stranding was an accomplished fact, and which necessitated the scuttling of the vessel, was in any proper sense the imm <:liate Of proximate consequence of the stranding, or that it arose from or was caused by such stranding, or the alleged negligent navigation of the vessel? No case has been cited, nor has my own investigation resulted in finding any authority, which sustains or sanctions such a proposition. The stranding, even though occasioried by want of ordinary care and skill in navigating the vessel, certainly did not set in motion or give rise to the storm which rendered the scuttling necessary, thereby causing damage to a portion of the cargo, and giving rise to the general average loss for which recovery is sought. The storm with its proximate consequences and results was an independent peril against which the insurer undertook to indemnify the assured. In what sense was such storm, or the voluntary scuttling made necessary therefrom, a peril consequent upon, arising from, or caused by want of ordinary care and skill in navigating the vessel or in negligently stranding her? The stranding, on the theory of the defense, was not only the effect of the want of proper care and skill in navigating the vessel, but such effect was the efficient predominatng cause Qf subsequent loss from a peril of the lakes wholly distinct and independent of the peril incurred in v.41F.no.13-51 "
I
-
802
FEDERAL
' It is urged in behalf of respondent that the stranding should be regarded !is the proximate or eflicient cause of the disaster which' befell the vessel, because such stranding ceased to operate uhtil the loss was complete,-because it' created the necessity for the' scuttling,and should therefore be treated and considered as the Ca1Ula causans of the loss, for the reason that if had not been, stranded she would probably have sustained no from the storm, ()rwould not have been compelled to resort to scuttling as a meanE! of aafety. This claim and, position of respondent,. which seems to me to confuse mere antecedent wants and conditions with efficient causation;d.oes not settle, but Ulerely presents, the vital question, which is this: Was the negligent navigation or stranding of the vessel the predominating or proximate Cll-use of. .the loss arising .from the voluntary scuttling of the same, or was thestorxp the immediate, distinct, and proximate cause of such scuttling, an,d the loss thence. resulting? The storm which arose after the stranding .was' of such force and violence, and from such direction, as to vessel from her further ashore, lj,n,d render it highly probable, if not absqlutelycertain, that she would become a total wreck. In the.presence· of new-impending peril and. danger the master, after consultation with the other officers, voluntarily scuttled the vessel save herand the cargolrom I fail to see any causal connection be,t\foon the stranding and t1J.iSsubsequent scuttliflg of the,vessel undersu.ch circumstances. Suppose the vessel had been insured against loss ot:damage by fire or lightning, with the same exception ae contained in thepreElent policy againstperils losses arising from: orconseqt;lent upon ,want of ordinary care and skill in navigating the. vessel, and she had been. struck by lightning or burned by fire comUluJ;l.icated froUl' the shore while stranded, it would not admit of a mOmEmt!s debate that the insurer ,woUld, be bound to make good the loss sustained, even though the stranding occurred through negligent navigation. No court would seriously-entertain the proposition as a defense for.the insurer, that if vessel had not been in that, particular place she would not have been exppsed"to the fire, or would not probably have bEen. struck by lightning:S.o present case, unless it can be successfully maintained and the necessity thence resulting for scuttling the vessel tbeimmediate or proximate consequence of stranding, or. directly ,arose, from,.or was caused by, such stranding. then such storm.as anindependehtperil covered by the policy must stand uponthe same footing as fi,reor lightning in the case supposed. A correct of the doctrine. of proximate' and remote cause inJmy opinioll,the, .proposition that the storm rather than the stranding sqould the predominating efficient cause, and the loss resulting from the voluntary scuttling of the vessel. W4ere there iBn loss from, the opeql.tion of two concurring or co-operatingagenciesQr instrumentalities,. this character, connection, andefi'ect may be such that the nearest in point of time to the accident or disasterAlOuld not be regarde<l asthe.predorninating effl,cientcause of the los'- That it is said in the case of Dole v. Insurance 00., 2 Cliff. 431:
NORTHWEST TRANSP. CO. V. BOSTON MARINE INS. CO.
803
"The rule is that where different causes concur, to one of which it is necessary to attribute the loss, it is to be attributed to the efficient predominating,peril, whether it is or not in activity at the consummation of the. and the lellrned district judge, after referring to the cases of PetiT's v. Insurance 00.,14 Pet. 99, 100, and Insurance 00. v. Sherwood, 14 How. 351, correctly states that by the proximate cause of loss is to be understood, not necessarily that cause whicliinstantly precedes or accompanies the loss in point of time,. but the dominant cause,-the cause but fllr which the 10s8 would not have occurred, and between which and' theloss no other distinct cauSe intervened. The general rule, however, is that when the contributory causes are independent of each other the nearest is of course to be charged with the disaster. Thus in Insurance 00. v. Boon, 95 U. S. 130, it is said: "The proximate cause is the efficient causa,-the one that necessarily sets the other causes in operation. The causes that are merely incidental or instrumental of a superior or controlling agency are not the proximate causes and responsible ones, though they may be nearer in time to the result. It is only when the causes are independent of each other that the nearest is of course to be charged with the disaster:" In that case the policy exempted the insurer from liability for any loss or damage by fire which might happen by means of any invasion, insurrection, riot, or civil commotion, or of any military or usurped power. An armed force of Confederates during the civil war attacked the city in which the insured property was located. The Federal officers in command, finding it could not be successfully defended, and in order to prevent the military stores from falling into the hands of the rebel troops, set fire to the town hall in which such supplies were deposited. The fire, without other interference or agency, spread to the adjacent building, thence through two other buildings to the store containing' the insured goods, which were destroyed. It was held that the fire happened by means of invasion and the proper exercise of military power, and came within the exception of the policy, on the ground that the burning of the city hall and the continuing spread of the fire could not be regarded as a new and independent cause of loss.. Firing the hall was a necessary incident and consequence of the hostile rebel attack upon the city,-a military necessity caused by the attack,-and having been started the fire continued till it reached and destroyed the goods insured. When the conclusion was reached that the fire was brought into being by invasion or usurped military power, or that no new or independent agency intervened in spreading it, the result logically followed that the risk or ]oss came within the exception. In the present case the storm which created the necessity for scuttling the vessel was in no sense set in operation by the stranding, but wal a distinct, inp,ependent,and intervening cause, nearest to and therefore properly chargeable with the disaster. I am wholly at a loss to understand how the scuttling of the vessel to save it from the danger of the new and independentperil of the storm can be considered as a mere incidentof the stranding as the superior or controlling agency. '. The stranding would itself have. occasioned no loss) e:1tcept perhaps asUght injury to the ves-
804
FEDERAL REPORTER, vol. 41.
sel's wheel and shoe, which the policy did not cover. Upon what principle can it be declared the dQminant or proximate cause of the loss resulting from the subsequent scuttling rendered necessary by the distinct, disconnected, and independent agency and instrumentality of the storn'J.? Certainly the scuttling was not the result of the continued influence or effect of the stranding, nor was it the natural and probable consequence of the alleged want of ordinary care and skill in navigating the vessel. In Railroad Co. v. Kellogg, 94 U. S. 475, it is flaid: "But when there is no intermediate efficient cause, the original wrong must be considered as reaching to the effect, and proximate to it. The inquiry must, therefore, always be whether these was any intermediate cause, disoonnected from the primary fault and self-operating, which produced the injury." Here there was disconnected from the stranding an intermediate; independent, self-operating cause, which was sufficient of itself to prodtrce, and which did produce, the loss sought to be recovered. In In8Urance Co. v. Transporta'Wm 00.,12 Wall. 194-199, itis said: "There is undoubtedly difficulty, in many cases, attending the application of the maxim' Prom/ma causa non remota 8pectatur,.' but none when the causes succeed each other in order of time. In such cases the rule is plain. When one of several successive causes is sufficient to produce the effect, (for example, to cause a loss,) the law will never regard an antecedent cause of that cause, or the causa causans. In such a case there is no doubt which cause is the proximate one within the meaning of the maxim." In that case it was urged on behalf of the insurance company that, .as the assured had taken the risk of collision, and as the collision caused the fire, it was not liable. The court, however, while conceding that the assured had taken the risk 'of collision, and that the collision caused the fire, said: "But it is well settled that, when an efficient cause nearest the loss' is a peril expressly insured against, the insurer is not to be relieved. from respon,sibility by his showing that the property was brougbtwithin that peril by a cause not mentioned in the contract." The present case falls within the' rule .thus laid down by the supreme court, for if the strandin!!: be considered as one of the contributing causes of the loss it was succeeded by another, sufficient to produce the disaster, and such succeeding cause in order of time was a peril expressly insured against. When the facts of Insurance Co. v. Transportation Co., 12 Wall. 194,are examined it will be seen that, in reaching 'the conclusion that the fire was the proximate cause of the loss sustained, the court geNe a broader application to the rule than the present case calls for. In Insurance Co. v. Sherwood, 14 How. 365,366, Mr. Justice CURTIS, speaking for the court, says that, "ill applying this maxim, iIi looking for the proximate cause of the loss, if it be found to be a peril of the sea [covered by the policy] we inquire no further; we d'o not look for the cause of that peril." Insurance Co. v. '!'weed, 7 Wall. 44, does not'support respondent's position, for there it was assume(i that' no new intervening cause had ocCurred. But this case of Insurance Co. v. Tweed is criticized in Scheffer v. Railroad Co., 105 U. S., 251. Speaking for the court,Mr. Justice MILLER says: "This case, (7 Wall. 44,) went to the verge of
NORTHWEST TRANSP. CO. tI. BOSTON MARINE INS. CO.
805
sonnd doctrine in holding the explosion to be the proximate cause of the loss of the Alabama warehouse; but it rested on the ground that no other proximate cause was found." It was conceded in that case that if a new force had intervened sufficient of itself to stand as the cause of the misfortune, the other (the explosion) would be considered as too remote. Without extending quotations from decision and text writers on "lnsur· ance," or entering upon a detailed review of the cases, I am clearly of the opinion, after careful consideration of the subject, that the authorities, American and English, support the conclusion reached by the court, that a correct application of the doctrine of proximate and remote cause to the facts of this case requires that the storm should be regarded as the proximate or predominating efficient cause, which np.cessitated the scuttling of the vessel from which resulted the damage to a portion of the cargo, and gave rise to the general average loss sought to be recovered. Insurance Co. v. Lawrence, 10 Pet. 517; Express Co. v. Insurance (Jo., 132 Mass. 377; Lee, Shipp. 444; 2 Arn. Ins. 800-808, 1342; Lown. Ins. 122; Hild. Ins. 269; Cory v. Burr, L. R. 8 App. ,Cas. 393; Dudgeon v. Pembroke, L. R. 9 Q. B. 582; same case affirmed in house oflords, L. R. 2 App. Cas. 284; Wilson v. The Xantho, L. R. 12 App. Cas. 503. If the stranding of the vessel had resulted from negligent navigation within the exception of the policy, the master could not, under the authority of The Portsmouth, 9 Wall. 682, have resorted to a jettison of her cargo, or any part of it, in order to release the vessel, and then recover by way of general average contribution for such loss. But that case does not control the present, in which there was no want of ordinary the vessel which caused the stranding, nor care and skill in any necessity for making a jettison of the cargo or any part of it to release the vessel or relieve her from any direct effects or proximate consequences of the The voluntary scuttling was prqduced by another and different cause,and his right to resort to the voluntary sacrifice· under the circumstances can hardly be .questioned. The cases of Barnard v. Adams, 10 How. 270, and F(f/JJ'ler v. Rathbones, 12 Wall. 102, fully sanction the action of the master in scuttling the vessel, and make a proper case for general average, to which the owners and insurers of the cargo have all assented. It is not material to consider whether the owners of the damaged cargo could have held the vessel or its owners liable for the injury sustained, or whether the vessel could have enforced against cargo owners a general average contribution. Respondent cannot be heard to interpose objections to thE' adjustment which the owners of the cargo did not choose to make. Nor are we in this case called upon to determine whether the vessel, as a common carrier and insurer of the goods except against the acts of God and the public enemies, could have been held for the damage sustained by that portion of cargo injured from the scuttling. The terms of the bills oflading, under which the cargo was being carried, are not before the court, so as to enable it to say what were the legal rights and liabilities between the vessel and" cargo owners under the circumstances. From the foregoing" conclusions reached by this court it follows that
,806
FEDERAL REPORTER j
the decree of the district, court dismissing the ,lioel was erroneous and should be reversed" and,that libelant is entitled to recover, and should ,have a decree against respondent for the smil of $3,074.22, with interest from August 27, 1887, as reported by the commissioner, together with costs in this and the distriot court; a.nd it is lloccordinglyso ordered and adjudged.
CROW 'l1" MY,ERS
et al.
(DlBtrlct OO'lJ,tt,E. D. VirginLa. February 19, 1890.)
A charter-party' provided that the"vessel chartered should, "with all convenient. speed, sail and proceed" to certain'porte', and there load a certain cargo, "and, having so loaded, proceed direct, under steam, to Liverpool. * * * The entire car· rying capacity, including cros!l-'bunll:ers, space'under bridge deck, lazarette, deckhouses, and other spaces where steamer has usually carried cargo, or would carry car!\'o if loaded on rates, shall be placed at. the disposal of charterers, exclusive of any space which may be needed for cr\lw, cabin stores, and coal for the voyage. · · * If. no heavy CRrgo be shipped, and additional ballast be req uired, the same , to be prQv,idedb,Y the steamer." It also provided that the charter should not commence "until the 'morning af,ter 'the steamel' is ready to l'eceive cargo at the place of loading, aU of her holds being ctearedand passed fol' grain, and customary notice thereof given to the charterers or t.heiragentj and such notice must be given before 12 o'clock of the day that the steamer is reaay. * * * Should the steamer not be ready in all respects for cargo, at her first loading port 'for entering on this charter, by Decembel'25,1888, the charterers may cancel theoharter. II Under this char· tel' the vessel' arrived at one of the loading ports, and gave notice of readiness on Saturday, December 22d, after 12 o'clock" which the charterers declined to receive. The notice was on Monday, the 24th, before 12., At the time of this last notice, she had not cleared, and passed to the disposal of the charterel'S, a space of 4,268 cubio feet, called the "main 'tween-decks, II or cross-bunkers, claiming it was necessary for 001'1, which the ohartel'ers denied. She had no ballast either aboard or accessible, and could get none by her cancellation date. She had not been passed for grain, and one, of her holds was wet from a leakage, 80 that grain could not have been put there without addjtional preparation. She had not coaled for the voyage. Held; that the oharterers were justified in canceling the charter on the ground that her notice of' readiness was untrue at the time it was given. <SVHalJU.'by the
TO LOAD.
Libel in Admiralty on an Alleged Breach of Charter-Party, for Damages Claimed of ,$6,666.57. The charter-party which is th,e Qasis of this action contains, among others, the following clauses: , "NORFOLK, Nov. 15, 1888. "It is this' day mutually agreed between agents for owners of the British steam-ship Camb(,Jdia, of Liverpool, o,f 1,969 net tons register, or thereabouts, now expected Gibraltar to-da.y to New York direct, and Myers &; Co., N,orfolk, Va., chatterers. that the sl\id steamer, being tight, s,taunch, strong. &c., shall, with all convenient speed, sail and proceed in ballast to the ports of NorfOlk e.g: Newport News ag: 'West' Point, Va.,-two ports only.-as ordered on arrival at lIampton Roads. and there shall load from the agents of 'the said charterers a fuJI and complete'cargo of cotton ag: other lawful merchandise which the charterers bind themselves to ship, and, being so loaded, shall therewith proceed direct, under steam all the way, to Liverpool, Eng-