Moses v. Sun Mutual Insurance — 8 N.Y. Super. Ct. 159

Majority

p. 159

Isaac Moses, Adm’r, &c. and Thomas Percival, plaintiffs, v. The Sun Mutual Insurance Co. defendants.

(Before Duer, Campbell, & Bosworth, J.J.)

Oct. 11;

30, 1852.

Headnote

The words of the general clause in a poficy of insurance do not cover all losses that may happen to the property insured during the pendency of the risks.

They are restricted to losses of a similar nature, and resulting from similar causes as those speciaUy enumerated.

Hence they do not cover a loss resulting from the consumption of cargo by the crew or passengers, or from a sale to defray the expenses of necessary repairs.

It is the duty of the ship-owner to provide funds to meet all contingent necessary expenses at each port of destination, and if he fail to do so, he alone is responsible to the shipper for a loss resulting from his neglect.

The sea-worthiness of the ship is a condition precedent to the attaching of the policy; hence some proof of its fulfilment must, in all cases, be given, in the first instance, by the assured. Its fulfilment is not a presumption of law casting the burden of proof upon the underwriter.

Judgment of nonsuit affirmed with costs.

Appeal from a judgment at special term, dismissing the complaint—heard upon a bill of exceptions.

The action was on a valued policy of insurance upon goods on board the ship Mason, on a voyage from Philadelphia to San Francisco, and that the application of the evidence, the points raised, and the opinion of the court maybe properly understood, it is deemed proper to state the complaint m extenso. It is as follows:

The complaint of the plaintiffs shows that, on the‘twentieth ' day of February, one thousand eight hundred and forty-nine, the above named Joseph Flemming, now deceased, was a mer

p. 160

chant in the city of Philadelphia, using trade and commerce under the name and style of Flemming & Marshall, he being, in truth, the sole and only person composing said firm; that he, the said Flemming, and the above-named plaintiff, Thomas 0. Percival, were jointly interested in certain goods, wares, and merchandise, to wit, eight hundred and forty-six packages of merchandise of large value, to wit, of the value of twenty thousand dollars, and they, being such owners, did, on said day, ship and lade the same on hoard the good ship called the “ Mason,” then lying at anchor in the port of Philadelphia, and bound for San Francisco, in California."

And the said plaintiffs further show, that they, the said Flemming and Percival, did thereupon, on the twenty-fourth day of February aforesaid, cause the said goods, wares, and merchandise to he duly insured by the defendants on the voyage aforesaid, at a premium of three per cent., paid to the defendants by the said Joseph Flemming and Thomas C. Percival on the said goods, which were for the purposes of such insurance valued at sixteen thousand dollars.

And the plaintiffs further show, that in consideration of the sum of four hundred and eighty dollars, by the said plaintiffs paid to the said defendants, being said per centage, the said defendants did execute and deliver to the said Flemming, and Percival, a certain instrument in wilting, commonly called a policy of insurance, hearing date the twenty-fourth day of February, one thousand eight hundred and forty-nine, whereby the said defendants, in consideration of said sum of money so paid to them as aforesaid, being three per cent, on sixteen thousand dollars, the estimated value of said goods, wares, and merchandise, did insure the said joint owners of said goods, wares, and merchandise, under the name of Flemming & Marshall, on account of whom it might concern, loss payable to them, lost or not lost, at and from Philadelphia to San Francisco, with the privilege of intermediate ports, on merchandise as per memorandum on file in the office of said defendants (in case of claim for damage, the same to he settled on the principle of a salvage loss), laden or to be laden on hoard the good ship “ Mason.” Beginning the adventure upon the said goods, wares, and merchandise from, and immediately following,'

p. 161

the lading thereof on hoard of the said vessel, and so continue and endure until the said goods, wares, and merchandise should be safely landed at San Francisco, aforesaid, the said vessel in her voyage to have the right also to proceed and sail to, touch and stay at, any port or place, if thereunto obliged by stress of weather or other unavoidable accident, without prejudice to said insurance.

And the said plaintiffs aver that the said, goods, wares, and merchandise, so laden on board said ship, and so insured as aforesaid, were therein valued at, and were of the value of sixteen thousand dollars. And the said plaintiffs further show, that the ad/oentures and perils which the said defendants took upon themsel/oes in that voyage, inn elation to said goods, wares, and merchandise, wear of the seas, men-of-war, fires, enemies, pirates, rovers, thieves, jettisons, letters of mark and countermark, surprisals, takings at sea, arrests, restraints, and detainments of all kings, princes, or people, of what nation, condition, or quality soever, barratry of the master and mariners, and all other perils, losses, and misfortunes that had or should come to the hurt, detriment, or damage of the said goods, wares, and merchandise, or any part thereof, d/uring said voyage; and in case of loss, it was agreed that such loss to be paid in thirty days after proof of loss and interest.

And the said plaintiffs further show, that at the time of the shipment of said goods, and at the time of said insurance, and at the time of the loss hereinafter mentioned, the said Joseph Flemming, now deceased, and the said Thomas 0. Percival were the sole and only owners thereof; and they also aver, that since the malting of said insurance, the said Joseph Flemming has departed this life, having first previously made his last will and testament. Plaintiffs farther aver, that administration, with the will annexed, of all the goods and chattels of said Joseph, has been duly granted to the above-named Isaac Hoses, by the Surrogate of the city and county of New York, to whom the granting thereof belonged, by reason whereof the interest of said Joseph Flemming, deceased, in said goods, wares, and merchandise, is vested in the said Isaac Hoses as administrator, as aforesaid.

And the plaintiffs further show, that the said ship “ Hason,”

p. 162

with said goods, wares, and merchandise, laden on board of her, did afterwards, to wit, on the twenty-fourth day'of February aforesaid, proceed and sail on said voyage so insured, being in all things seaworthy.

And the said plaintiffs further show, that the said voyage insured, from Philadelphia to San Francisco, is a voyage of many thousand miles, mating it necessary to stop at many intermediate ports, for provisions and refreshments, and that Rio de Janeiro is one of such intermediate ports in said voyage, to which the privilege of said ship or vessel, touching and staying for the purposes aforesaid, extends.

And the plaintiffs further show, that on her voyage, and before her arrival at said port of Rio de Janeiro, from the necessary contingencies growing out of so long a voyage, and the transition of said vessel through various climates, her provisions spoiled and failed; and to support the lives of the passengers and crew, and thereby enable said vessel to reach her final port in safety, it became necessary to consume and use, and there was consumed and used on board said vessel, a large portion of the provisions, goods, and merchandise of the said plaintiffs, so laden on board of said ship, on such adventure, and insured as aforesaid, and covered by said policy, being of great value, to wit, of the value of five thousand dollars, and which thereby, and by reason of the mere perils of the voyage aforesaid, and the seas, were totally lost to said plaintiffs.

And the said plaintiffs further show, that it was necessary to refit and repair said vessel, and replenish her stores at said port of Rio de Janeiro, to enable her to reach her destination, and perform in safety said voyage, so insured as aforesaid, and that she was there so refitted and repaired as aforesaid. And that after said vessel had been so refitted and repaired, the agent of the owner of said ship refused to pay for the same, as he was bound to do, and that it thereby became necessary, to enable said vessel to proceed on said voyage, and on account of the great distance of the owners from said port, for the master of said vessel to sell and dispose, and he did sell and dispose of a large portion of the remaining goods, wares, and merchandise of said plaintiffs, of large value, to wit, of the value of other four thousand dollars, which became thereby totally lost to the said plaintiffs.

p. 163

And the said plaintiffs further show, that a certain other large portion of the goods, wares, and merchandise so shipped by them, and laden as aforesaid, on board said vessel on said voyage, and so insured by said defendants as aforesaid, amounting in value to other four thousand dollars, was entirely lost to the said plaintiffs by the barratry of the master and mariners of said vessel, during said voyage, and before she reached the port of her destination as aforesaid, San Francisco, where the same, by the terms of the bill of lading, were to have been delivered, and until which time they were insured by the defendants as aforesaid.

And the plaintiffs further show,, that Valparaiso is another port in said voyage, and among the privileged ports to which said vessel was allowed by said policy to proceed, for necessary supplies, repairs, &c., during said voyage, which port is also a very distant port, being many thousand miles distant from the port of Philadelphia, as aforesaid. That said vessel repaired and refitted at said port; but that shortly after her departure therefrom, on her said voyage, her provisions were found to have become, from the climate, and other causes, unfit to sus- • tain life; and thereupon, while on the high seas, at a distance from all ports, and for the support of human life, and from the perils of the seas, the master of said vessel was compelled to use another large portion of the goods, wares, merchandise, and provisions-shipped as aforesaid, by said plaintiffs, on said voyage, and so insured as aforesaid, by said defendants, and covered by said policy. And the said plaintiffs aver, that said last mentioned goods, wares, and merchandise amount to the further sum of four thousand dollars, and were, by reason of the premises, totally lost to the said plaintiffs.

And the said plaintiffs aver, that due proof of interest by the plaintiffs in said goods, wares, and merchandise, and of the loss aforesaid, was made to said defendants, pursuant to the terms of said policy, and although thirty days elapsed thereafter, and before the commencement of this suit, the said defendants did not pay the amount of said loss to the said plaintiffs, nor any part thereof, pursuant to the terms of the policy of insurance, and their obligation and undertaking as aforesaid.

The said plaintiffs therefore say, that they have lost the said

p. 164

goods, wares, and merchandise by the perils aforesaid, and that the same amount in value to the sum of sixteen thousand dollars, which they demand herein, as their damages against the said defendants.

The answer admitted the execution and contents of the policy, and put at issue all other material allegations in the complaint.

The issues were tried before Mr. Justice Paine and a jury, in the month of February, 1852. The facts of the case, as established by the evidence, are as follows: The ship Mason with the goods insured on board, in which the interest of the" plaintiffs, as alleged in the complaint, was fully proved, sailed from Philadelphia on the voyage insured in the month of February, 1849. She had a full cargo, and more than 100 passengers.

Before the ship had been more than nineteen days at sea the passengers and crew were put upon a half allowance of water, and before her arrival at Rio Janeiro certain articles, part of the goods insured, principally cheese and white sugar, were broached and supplied to the ship’s use, the necessity for such use arising from a deficiency in the stores properly belonging to the ship. After her arrival at Rio Janeiro the captain purchased some provisions and small stores, also a large quantity of ropes for overhauling and repairing- the rigging, and a quantity of canvas for the sails. The captain, having no funds of his own or of his owners to meet these disbursements, was under the necessity of selling cargo for that purpose, and accordingly sold among other articles a number of barrels of beef, pork, and hams, covered by the policy. During the voyage from Rio to Valparaiso, and also from Valparaiso to San Francisco, the ship’s stores again failed, and a large quantity of the provisions insured were from necessity used and consumed by the passengers and crew, several of the witnesses swearing that but for such use those on board must have starved. The whole amount of the losses thus occasioned which the plaintiffs desired to recover was stated to be $4,162 with interest from the time of presenting the preliminary proofs.

The voyage from Philadelphia to San Francisco is in length 17,000 or 18,000 miles, and it was proved to be customary, and

p. 165

in most cases necessary, for vessels engaged, on the voyage to stop at the intermediate ports of Eio .and Valparaiso for refreshments and supplies.

When the counsel for the plaintiffs rested their case the counsel for the defendants, upon the following grounds, moved for a non-suit. First—On the ground of the insufficiency of the preliminary proofs. Secondly—On the ground that, irrespective of the allegation of barratry, there was no ground of action for a loss by the perils insured against, set forth in the complaint, that the remedy for the alleged loss, if any, was against the ship and owners, and that no proof of barratry had been offered. And thirdly—That it had not been shown, that the vessel was seaworthy when she sailed, nor had she been kept seaworthy on the voyage; and that the' alleged loss was the direct consequence of such unseaworthiness. Fourthly—On the ground that there was a misjoinder of parties, plaintiffs in this suit.

The judge thereupon ruled that the plaintiffs were not entitled to recover, and ordered a nonsuit.

To which ruling the plaintiffs excepted.

John Anthon, for the plaintiffs,

in moving for a new trial upon the exception, made and argued the following points—

. I. The preliminary proofs fully established the loss as averred in the complaint, and were sufficient, if such loss was - covered by the policy.

H. The trade to San Francisco, being a' new trade, and peculiar in its character, and exposed to novel risks, calls for a liberal interpretation of the policy, and especially of the general clause, to embrace such risks.

HI. The complaint avoids the difficulties which have arisen heretofore on the pleadings under that clause, by setting forth especially the precise character of the loss, in extenso.

IV. The loss, as set forth in the complaint, is as follows:—

I. A consumption, from necessity, by passengers and crew, of a part of the plaintiffs’ cargo (being provisions), to support life, and enable the ship to reach her destination; her provisions having spoiled and failed by passing through various

p. 166

climates, and from contingencies atténding a voyage of many thousand miles. *

2. A sale, from necessity, of another portion of the plaintiffs’ cargo, to enable the master to refit and repair the vessel, and replenish her stores at a remote port, the agent of the owners having refused to pay for the same, and" such refitting and replenishing being necessary to enable her to reach her destination in safety.

3. The loss of another portion of the plaintiffs’ cargo, insured, by the barratry of the master and mariners.

4. That after her departure from an intermediate and distant port, where she had stopped to refit by permission in the policy, her provisions, from the influence of the climate, became unfit for the support of life, and another portion of the plaintiffs’ cargo, from necessity, and to preserve life, having been used by the vessel, thus making a further loss.

V. These losses are within the perils insured against, and especially covered by the general clause, “all other perils, losses, &c.,” and were fully proved as laid.

YI. The proper interpretation of that clause is still an open question, and although some English and American judges and authors have confined it to losses “ ejusdem generis” with those in the sentence preceding it in the policy, such construction is not authorized legally nor grammatically, and is at variance with the interpretation of all other commercial coun-tries.

Vil. The clause is clearly cumulative, and embraces all risks of every kind or character not before expressed, and which might in any way attend the adventure. To confine it to losses “ ejusdem generis,” would obliterate it, inasmuch as a liberal interpretation of the preceding clause manifestly embraces such losses already.

“ The extent and meaning of the general words, all other perils, &c.,’ has not yet been the immediate subject of any judicial construction in our courts of law.” Ld. Ellen-borough; Cullen v. Butler, 5 M. & S. 463 (1816).

Where, besides the risks in a printed policy, there was a written clause “against all risks,” this was held to protect the insured from all losses, except such as might arise from the.

p. 167

fraudulent acts of the master. (Goix v. Knox, 1 John. Cases, 337; Skidmore v. Skidmore, 2 John. Cases, 76; Phil. Ins. (2d ed.) 688, 689.)

General clauses are to he taken generally. They embrace all that can be comprised therein. A general provision is as effective in generals, as a special one in particulars. A general agreement is to be interpreted in its generality. The contracting parties are to impute to themselves the inconvenience of not having affixed any restrictions. These fules are taught by all our doctors. (Meredith’s Emerig. 48.)

If the party who could and should have explained himself clearly and precisely has not done so, it is so much the worse for him, but he cannot be permitted subsequently to avail himself of restrictions which he has not expressed.

To give more energy and extent to the clauses, it is added that the insurers place themselves in the very room and stead of the assured, as if there was no assurer; i. e. in case of loss the adventure shall be presumed to have been made for their account. (Meredith’s Emerig. 287.)

“ Perils of the seas,” embrace every loss or damage which happens on the sea or through the sea. (Targa Pothier, lb.)

It is only to prevent doubt and vain disputes, that in the printed form these clauses “ all other, &c.,” are inserted. (Ib.)

Emerigon then gives extracts from the policies of various commercial countries, containing the clause “ all other, &c.,” in various forms, but all conveying the same meaning,-that the •intent is to 'cover any kind of loss to which the adventure is exposed. (Meredith’s Emer. p. 287.) A full chapter on this head.

Yin. The practical application of the rule in England (so far as any rule has been applied there), while it purports to act upon the phrase, “ ejusdem generis,” does in fact conform to the extended interpretation of the clause as practised in other commercial countries.

A Slower: Captain missed his Way to Jamaica, water failed, and slaves thrown overboard to save the lives of the remainder. A loss within the general clause. (Gregson v. Gilbert, 1 Park. 138; 23 Geo. 3.)

A Slower: Failure of provisions occasioned by the unusual

p. 168

length of the voyage and bad and stormy weather, and consequent loss of slaves by death.

This would have been a loss within the policy but for the stat. 30 Geo. 3. (Tatham v. Hodgson, 6 D. & E. 656.)

A ship sunk at sea by another firing into her by mistake, deeming her an enemy, a loss within .the general clause “ all other, &c.” (Cullen v. Butler, 5 M. & S. 461.)

To prevent money from falling into the hands of an enemy it was thrown overboard, held a loss of the nature of jettison, and within the general clause. (Butler v. Wildman, 3 B. & Ald. 398—1820.)

Insurance on freight. Ship placed in dry dock for repairs, lost while being got out of dock, goods purchased but not shipped.

It was insisted that the loss was not within the policy, that all other perils meant those cyusdem gm&ris, as perils of the seas, &e., and did not extend to losses in dry dock from ignorance of Hindoos.

Tixdal, C. J.—'The words in the policy are very large; the policy not only enumerates perils of the seas, but “ all other perils, losses, and misfortunes.”

The difficulty which has arisen on this clause has rather turned on the question whether such a loss was properly described in the declaration as a loss by the perils of the seas, than to any doubt as to its falling within the general terms of the policy. The difficulty here is avoided by the manner in which the loss is described. (Devaux v. L'Anson, 7 Scott, 507; S. C. 5 Bing. N. C. 519; Ann. 1839.)

IX. The loss in this case is so set forth in the complaint as to give the plaintiffs the full benefit of the policy.

X. If the eyusdem generis is the rule of interpretation, then the conduct of the passengers (a species of vis mayor), which the captain could not control, might be interpreted to be an embezzling of the cargo, and of the nature of barratry.

XI. The question of seaworthiness was for the jury. On this head, independent of the general rule that seaworthiness is implied until the contrary is proved, the testimony of the mate was conclusive to show that she was seaworthy at her

p. 169

departure. The wasting of provisions and water by the passengers would be at the risk of the insurers.

XTL The judge erred in taking the case from the jury.

Swam Ketehwm, contra, insisted that none of the losses claimed were covered by the insurance, and that it was a necessary conclusion from the testimony that the ship was unseaworthy when she commenced her voyage.

This is a very plain case. If we follow the established, and hitherto undoubted, construction of the policy, we are bound to say that it covers none of the losses for which an indemnity is now claimed, and that the learned judge who tried the cause would have committed a grave error had he refused to nonsuit the plaintiffs.

That the losses claimed cannot be referred to any of the particular risks which the policy enumerates is exceedingly clear, for the supposition, that they may be imputed to the barratry of the master and crew, we reject, as manifestly groundless. There is not the slightest proof of the embezzlement charged in the complaint, and it would be monstrous to say that the master was guilty of barratry in not withholding from the passengers the necessary means of preserving their lives. The barratry of the master is, according to the definition of Lord Ellen-borough in Earle v. Rowcroft (8 East. 139), a criminal breach of his duty towards his owners; and to apply the term criminal to the conduct of the master, in the case before us, would be an abuse of language and a perversion of truth. The consumption of the provisions of the assured by the passengers was a physical necessity: the permission of such use by the master a high moral obligation, and so far from being liable to censure, he would have been deeply culpable had he acted otherwise than he did. So, upon similar grounds, he was entirely justified in selling a portion of the goods at Eio de Janeiro. The sale was made to enable him to pay for supplies and stores that were indispensable to the further prosecution of the voyage. He was without funds or credit, and a sale of a part of the cargo was his only resource. Under these circumstances, to make the sale was not only a right, but a duty.

If the losses, then, as they appear in the evidence, are reco

p. 170

verable at all, they can only be so under the general clause, which follows in the policy the enumeration, of particular risks, and accordingly it was upon the construction that he urged us to give to the words of this clause that the learned counsel for the plaintiffs laid the stress of his argument. He insisted that they comprehend every loss, direct or consequential, that can possibly happen to the-subject insured, no matter from what cause, or by whose act, in port as well" as at sea, from the commencement until the termination of the voyage covered by the -policy.

Hor can it be denied, that if the words of the clause are separately considered, such is their obvious and, indeed, necessary construction. It is a construction, however, so directly opposed to that which courts of justice have hitherto followed, that it is scarcely possible to imagine a more radical and extensive change in the law of marine insurance than its adoption would effect. It is so far from being true that the liability of the underwriters is subject to no limitation, that there are numerous classes of losses from which, according to all the decisions and the text writers, they are wholly exeiqpt, although the words of the general clause, as construed by the counsel for the plaintiffs, certainly embrace them.

In determining the liability of the underwriters, no distinction is more fully established, or more frequently applied, than that between ordinary and extraordinary perils and losses. It is elementary. It is only for the latter description of losses that the insurer is liable. In the language of Mr. Justice Thompson in Barnewell v. Church, 1 Caines. 234, “ he undertakes only to indemnify against the extraordinary and unforeseen perils to which every ship is exposed in the course of the voyage.” Although to discriminate between ordinary and extraordinary losses is, in some cases, a matter of great nicety and difficulty, yet the cases are numerous in which the discrimination has been made, and has operated to defeat the claims of the assured.

Thus, if the masts and spars of the ship are damaged, or her sails torn or carried away, and even when in the course of the voyage she springs a leak, unless, in each case, the loss can be distinctly traced to the immediate and violent operation of a

p. 171

peril of the sea, it is considered as resulting from the ordinary wear and tear of the voyage, and the expense of repairing it is never a charge upon the underwriter (1 Emerigon, 390; Pothier, n. 66; 3 Kent’s Comm. 300; 1 Phillips, 625 -6; 2 Arnould, 756-7 ; Benecke on Indemnity (Eng. ed.) 454-5-6).

There is another large class of losses, of very frequent occurrence, for which the law is settled, that the underwriter is not responsible. He is responsible only when the loss is occasioned by the operation of a cause, acting externally upon the subject insured; never when it arises solely from an internal and inherent principle of decay or corruption. Thus he is not responsible if fruit becomes rotten, or flour heated, or wine turns sour merely from internal decomposition, nor even when the property is destroyed by a spontaneous combustion arising from its own nature or accidental condition when laden ( 1 Phillips, 627 -8; 2 Arnould, 756, § 282; 1 Emerigon, § 9: “ Du vice propre de la chose” pp. 388-392; Boyd v. Dubois, 3 Camp. 133).

So when there is no insurance against barratry eo nonrnie, it appears to be clearly settled that the underwriter is not liable for losses occasioned by the barratrous acts of the master or crew, such as the wilful violation of a blockade, or an unlawful resistance to a search (Harratt v. Wise, 9 B. & C. 712; Robinson v. Jones, 8 Mass. 536 ; 9 Cranch, 63 ; 1 Emerigon, 484; 1 Phillips, 589 , 592). It has never been supposed or intimated that such losses are covered by the general clause in the policy. And even when barratry is an enumerated risk, the underwriter is not liable for a loss directly attributable to the negligence of the master or crew. It may be admitted that, according to the modern decisions, when a peril insured against is the froximate cause of the loss, it is no defence to the underwriter that the peril was itself occasioned by the negligence of the master or crew (2 Arnould, 767-769, and cases there collected). But these decisions, difficult as it maybe to reconcile them with former cases, have certainly not altered the law, when the negligence, and not an intervening peril, is the immediate cause of the loss (Tanner v. Bennett; Ry. v. Mood. 182; Bradford v. Leoy, 2 C. & P. 137; Bradhust v. Col. Ins. Co. 9 John.

p. 172

17 ; Potter v. Suffolk Ins. Co. 2 Sumn. 197 ; 2 Arnould, 772; 1 Phillips, 589 , 590).^[1]

It is not necessary to pursue the discussion. It conclusively follows from the observations we have made that the underwriter, by the fixed legal interpretation of his contract, is not bound to make good to the assured all losses, without reference to their character or causes, that may happen to the property insured during the pendency of the risks, and, consequently, that the general words, which, in their literal extent, embrace all such losses, must be understood in a restricted sense. What is the nature of the limitation to which they are subject is the question next to be considered.

Ror, in our judgment, can this be treated by us as an open question. It is settled by many decisions and by the consent of all the text writers of authority. The words of the general clause, broad as they are, in this, as in many analogous cases, are limited in their application by the specification that immediately precedes them, and therefore have their due effect assigned to them by allowing them to comprehend and cover only such other cases of marine damage as are of the like kind (ejusdem generis) with those specially enumerated, and are occasioned by similar causes. It is true that Lord Ellenborough said in the case of Cullen v. Butler (5 M. & Sel. 461), that in the courts of law a judicial construction had not yet been given to the general clause in the policy; but whether that observation was strictly accurate or not, it is certain that, in this very case, the construction which we have given was adopted by the court, and equally so that it has since been uniformly followed (1 Phillips, 2d ed. pp. 688-9; 2 Arnould, pp. 842, 399, 314). They are the very words of Lord Ellenborough that we have used in stating the rule.

That the losses which are now sought to be recovered are of the “ like nature, and were occasioned by similar causes” as

* That insurers are not liable for losses resulting immediately from the negligence of the master is now settled to be the law, by a recent decision of the Supreme Court of the United States—Vide General Mutual Ins. Co. v. Sherwood, 11 Leg. Observer, p. 129.

p. 173

those specially enumerated in the policy, was very faintly asserted upon the argument, and we are clear in the opinion that this necessary analogy wholly fails. If it exist, we have heen unable to discover it. The enumerated risks may be divided into two classes. They are either external causes acting with violence directly, or by a necessary consequence, upon the subject insured, or acts of illegality, malversation or fraud; and it seems manifest that to neither class can the losses now claimed be justly, or even, speciously, referred.

But it is not upon this reasoning alone that we rest our decision. As we intimated upon the argument, the exact question has been determined in England, and determined in favor of the underwriter. In the case of Powell v. Gudgeon (5 Maule and Sel. 431), in which it appeared that the master, from his inability to procure funds, had sold a part of the cargo to defray the necessary expenses of repairing the ship, it was held by the Court of King’s Bench that the underwriters were not responsible for the loss sustained by the shipper ; and in the case of Sarquay v. Hobson (4 Bing. 131; S. C. 1 B. & C. 7), this decision was approved and followed by the Court of Common Pleas. It is true that these cases apply in terms only to a part of the loss that is now demanded, but in principle they embrace the whole. Between a necessary sale by the master and a necessary consumption of the cargo by the passengers, we can make no distinction, nor was any attempted to be made by the ingenious counsel for the plaintiffs.

fSTor is this all: the reason for exempting the underwriters from liability, in the present case, are in reality much stronger than in either of those to which we have referred. In each of those cases the sale of cargo was made in a port of distress, and for the purpose of meeting the expenses of repairs, which had been rendered necessary by a peril insured against, and hence it was very plausibly argued that the sale was a necessary consequence of the peril, and that the underwriters were therefore liable for the loss which it occasioned; nor could any reply be made to this argument except that which was given by the court, namely: that the peril, although a remote, was not the proximate cause of the loss. In this case the sale was made— and the distinction is vital—not in a port of distress but of des

p. 174

tination, nor can any peril covered by the policy be assigned as the cause, proximate or remote, of the necessity by which it was justified. The same remarks may'be applied to the consumption of the provisions by the passengers. This consumption, not in itself a peril covered by the policy, was assuredly not the consequence of any other. In both cases the loss is attributable to the same causes—a gross neglect of duty on the part, not of the master, but of the owners of the ship.

It is said by Hr. Arnould, the author of a recent and very able treatise on marine insurance, that the underwriter is discharged from all liability “ where the loss arises from causes which the owners or masters of a ship are bound by their duty as carriers to prevent, or which they might have prevented by a due exercise of reasonable and ordinary vigilance,” and the cases to which he refers fully sustain the doctrine and prove, that in such cases, the masters or ship owners are alone responsible for the loss sustained by a shipper (2 Arnould, 774-5).

We think it would be difficult to state or imagine a case to which this established and equitable doctrine is more strikingly applicable than to the present. It is doubtful, upon the evidence, whether any part of the loss was -sustained before the ship arrived at Rio de Janeiro; if any, it was a small and not distinguishable portion. The entire loss as proved, arose from the sale made by the master at Rio, and from the consumption of the provisions belonging to the assured during the voyage from Rio to Valparaiso and thence to San Francisco. Both Rio and Valparaiso were ports of destination; ports to which the vessel was bound when she left Philadelphia. They are also well known ports of naval equipment and supply, where all the necessary means for the prosecution of the voyage, without resorting at all for any purpose to the goods of the shippers, might readily have been obtained had the master been provided by his owners with the requisite funds or credit. The result is, that it is to the neglect of the owners of the ship to furnish the master with the necessary funds or credit that the entire loss is directly and plainly imputable. This neglect, however, was a manifest breach of the duty of the owners as carriers—of their duty to passengers and shippers. They are just as certainly bound by their contract of transportation to put the ship, in all

p. 175

respects, in a fit condition to prosecute the voyage at each intermediate port of destination as at the original port of departure. The decision of the Court of Errors in the American Insurance Company v. Ogden (20 Wendell, 287), appears to have settled the law in this state, that the ship owner is bound to furnish the master with funds or credit at a port of destination. If such is his duty in respect to the insurer, á fortiori is it in respect to shippers. The obligation of the owners in this case was exactly the same at Rio and at Valparaiso as at Philadelphia. For the loss, resulting from this violation of their duty as carriers, the owners, as in all analogous cases, are alone responsible, and it is against them, not the defendants, that the plaintiffs should have sought their remedy.

It remains to add a few words on the question of seaworthiness. The evidence, we think, was nearly conclusive that the ship was nnseaworthy when she commenced her voyage. She had been at sea only nineteen or twenty days when she became short of water and the passengers and crew were put on allowance, and, as no supervening cause of the failure is shown, it is difficult to attribute it to any other than a deficiency in the original supply (Fontaine v. Phœnix Insurance Company, 10 John. 58 ). We were told indeed by the learned counsel for the plaintiffs, that the seaworthiness of the ship when the risks commence, is a presumption of law, which can only be repelled by positive evidence on the part of the underwriter. He must prove, even where it appears that the vessel became unseaworthy in the course of the voyage, that she was nnseaworthy when it commencednor can it be said that this position is destitute of authority. It is in a measure sustained by the opinion of Hr. Phillips and by two or more decisions of the. Supreme Court of Massachusetts ( 1 Phillips, 324 ; 2 do. 757; Taylor v. Lowell, 3 Mass. 341 ; Paddock v. Franklin, Insurance Company, 11 Pick. 227 ).

In the case, however, of Tidmarsh v. Washington Farmers' & Mechanics' Insurance Company, 4 Mason, 446, it was decisively rejected by that consummate master of commercial law, Mr. Justice Story, and for reasons that appear to us not merely satisfactory, but conclusive. The seaworthiness of the vessel when the risks commence is a condition precedent: to the

p. 176

attaching of the policy, and the fulfilment of this condition is the implied warranty of the assured. The general rule cannot be denied that the burden of proving the fulfilment of a condition precedent rests upon the party whose right to maintain his action or defence depends upon its performance, and no reason has been given why this rule is not just as applicable to the implied warranty of seaworthiness as to an express warranty of neutrality. The alleged exception would be purely anomalous.

The true rule deducible from a full comparison of the cases appears to be that which is stated by Hr. Arnould. The assured is bound to aver and prove that the ship was seaworthy when the risks commenced, but .the proof to be given by him, in the first instance, need not be particular and full. Although slight and general, if not contradicted, it is deemed sufficient, and when given, it shifts the burden upon the itnderwriter (2 Arnould, § 447, p. 1345).

Applying this rule to the present case, it would probably not be difficult, upon this ground alone, to sustain the nonsuit, but as some evidence of seaworthiness was given, we will not say that the question might not with propriety have been,submitted to the jury. "W"e prefer to place our decision upon the ground that there was no evidence of any loss against which the defendants, by the just construction of the policy, undertook to indemnify the assured.

The motion for a new trial is therefore denied, and the judgment of nonsuit affirmed with costs.