No. 77.-Bell v. Carstairs, 14 East, 394. Notes. in not having a regular passport on board, as required by the treaty of their own State with France, we are of opinion that the plaintiffs, the assured, cannot claim from the underwriter an indemnity for a loss thus occasioned by themselves; and, consequently, that in this case a nonsuit is to be entered. ENGLISH NOTES. In Thompson v. Hopper (1856), 6 El. & Bl. 937, 26 L. J. Q. B. 18, which was an action upon a time-policy, there was evidence that the ship had been wilfully sent to sea in an unseaworthy state. There was a verdict to the effect that the unseaworthy condition was a cause contributing to the disaster which followed, namely, that the ship was driven ashore by a squall and wrecked. But the immediate and proximate cause was an accident in paying out the cable. The verdict having been entered for the plaintiff on these findings, the Court ordered a new trial. In the judgment delivered by Lord CAMPBELL, Ch. J., he said: "Is it to be said, that to exempt the insurers from liability the misconduct of the assured must be the direct and proximate cause of the loss? We think that, for this purpose, the misconduct need not be the causa causans, but that the assured cannot recover if their misconduct was the causa sine quâ non. In that case they have brought the misfortune upon themselves by their own misconduct, and they ought not to be indemnified. The very object of insurance is to indemnify against fortuitous losses which may occur to men who conduct themselves with honesty and with ordinary prudence. If the misconduct is the efficient cause of the loss, the assurers are not liable." It has been already shown that this consequence of misconduct does not apply to mere negligence. Trinder v. North Queensland Ins. Co., cited p. 292, ante. And see next case (No. 78) and notes. On a somewhat similar principle, the insured has been held disentitled to recover where the loss has been the natural result of an inherent defect in the thing itself. In Paterson v. Harris (1861), 1 B. & S. 336, 30 L. J. Q. 354, the insurance was by a shareholder in the adventure of laying an Atlantic cable, "including every accident and risk that may be incurred by sea or land;" and the insurance was to include the successful working of the cable when laid down. The cable was successfully laid down, but soon became unworkable through defective insulation. The insulation being defective, it was the natural and necessary consequence of the action of the sea water that it should cease to work. The Court held that the loss was not within the perils insured. The case of Taylor v. Dunbar, cited p. 304, ante, depends on a similar principle. No. 78. — Busk v. Royal Exchange Assurance Co., 2 Barn. & Ald. 78. — Rule. AMERICAN NOTES. This case is cited in Warren v. Manuf. Ins. Co., 13 Pickering (Mass.), 522, but as pointed out by Mr. Duer (1 Insurance, p. 385), had no applicability to that case. In Cleveland v. Union Ins. Co., 8 Massachusetts, 308, the company was held not answerable for loss by capture occasioned by negligence of the master in not having his register; but this seems overruled in Nelson v. Suffolk Ins. Co., 8 Cushing, 477; 54 Am. Dec. 770. No. 78. BUSK v. ROYAL EXCHANGE ASSURANCE COMPANY. (K. B. 1818.) RULE. WHERE a ship is insured against (inter alia) fire, the insurer is liable for loss by fire caused by negligence of the master or crew, the insured having satisfied the warranty of seaworthiness by having provided a competent crew in the first instance. Busk v. Royal Exchange Assurance Company. 2 Barn. & Ald. 73–83 (20 R. R. 350). Insurance. - Fire. - Negligence of Master and Crew. [73] In an action on a policy on ship, by which, amongst other risks, the underwriters insured against fire and barratry of the master and mariners, they are liable for a loss by fire occasioned by the negligence of the master and mariners. Held, also, that where the assured had once provided a sufficient crew, the negligent absence of all the crew at the time of the loss was no breach of the implied warranty that the ship should be properly manned. Covenant upon a policy of assurance on the ship Carolina, at and from Amsterdam to St. Petersburgh. The policy was in the usual form, and stated, amongst other risks which the defendants took upon themselves, "fire, barratry of the master and mariners, and all other perils, losses, and misfortunes that should come to the hurt, detriment, or damage of the said ship.' The declaration averred the interest to be in the plaintiff, and alleged that, during " No. 78. Busk v. Royal Exchange Assurance Co., 2 Barn. & Ald. 73, 74. The defend The cause In the voyage insured, the ship was consumed by fire. ants pleaded that they had not broken their covenant. was tried before ABBOTT, J., at the London sittings after Trinity Term, 1817, when the jury found a verdict for the defendants. the ensuing term a rule was obtained to show cause why the verdict should not be set aside and a new trial granted, and cause being shown at the sittings before Hilary Term following, the Court ordered the facts to be stated in the following case. The policy was duly executed by the defendants, and the plaintiff was interested in the manner alleged. The Carolina was a Russian ship, and navigated by a Russian crew. She sailed from Amsterdam on the voyage insured on the 3rd October, 1815, being then properly manned and equipped. In the course of the voyage she met with tempestuous weather, and on the 25th [* 74] November she was forced to put into Biorkoo Sound, a Russian port, at the top of the Gulf of Finland; here she was frozen up for the winter. It was proved to be the custom, when Russian ships are so frozen up, to pay off the crew, and to leave the ship in the care of the master or the mate, and to hire a fresh crew for prosecuting the voyage, at the breaking up of the ice in the ensuing spring. When ships which are not Russian are frozen up in Biorkoo Sound, a lodging is taken for the crew on shore, where they all live, except one, who continues on board to take care of the ship. The master of the Carolina, upon arriving in Biorkoo Sound, paid off his crew, left the ship in the care of the mate, and proceeded himself to St. Petersburgh to settle the ship's accounts, with the intention of returning to complete the voyage when the season would permit. The mate continued in charge of the ship till the 9th day of January following. On that day he lighted a fire in the ship's cabin, and in the evening, without leaving anybody on board the Carolina, he went on board another Russian ship lying contiguous. There he remained for the night. At twelve at night he awoke, and went on the deck of the ship which he had joined; looking round he found everything quiet, and went down again to bed. About four o'clock the following morning he was alarmed by a fire which had broken out in the Carolina, and was then raging through the cabin windows, the round-house, and on the main hatchway. In spite of all that could be done to extinguish the flames, the vessel was soon consumed to the water's edge. The loss arose from the negligence of No. 78. - Busk v. Royal Exchange Assurance Co., 2 Barn. & Ald. 74–76. the mate in lighting a fire in the cabin, and not seeing [* 75] that it was properly extinguished. It was admitted * that the ship would have been sufficiently protected during the winter, in the care of the mate, had he done his duty. The question for the opinion of the Court was, whether the defendants were exempted from their liability for the loss, on the ground of its having been occasioned by the negligence of the mate? Campbell, for the plaintiff. If the assured be not entitled to recover in this case, a policy of assurance in the common form will not afford a complete indemnity against all the risks incident to maritime adventure. The assured has performed the whole of his duty; the ship was seaworthy and properly manned at the commencement of the voyage, and the mate, who at the time of the loss had the charge of the ship, was duly qualified for his situation. The policy therefore attached, and no blame being imputable to the assured, the underwriters are not discharged from their liability. Fire is a risk expressly insured against, and Green v. Elmslie, 1 Peake, 278 (3 R. R. 693), and Livie v. Janson, 12 East, 648 (11 R. R. 513), are authorities to show that the proximate and not the remote cause is to be looked to as the efficient cause of loss; and therefore, within the rule established in those cases, the defendants are liable. But on reason and principle they are responsible for a loss by fire, although that fire be produced by the negligence of the persons having the care of the ship, who for that purpose are to be considered as the servants of the owner; for if the proximate cause of the loss had been fire and the remote cause barratry, the underwriters would be [76] liable, by the express terms of the policy; and inasmuch as the assurers expressly undertake to indemnify the assured against the wilful misconduct of their servants, it must be presumed that they intended also to indemnify them against their negligence. In the case of the insurance of a house against fire, the assurers are liable for the negligence of servants. Austen v. Drew, 6 Taunt. 436, 4 Camp. 360 (16 R. R. 647). And, upon principle, there seems to be no difference between that and a marine insurance, as far as this species of loss is concerned. If the negligence of the master be a ground of resisting a claim for indemnity against a loss by fire, it will be equally so in the case of a loss by capture or perils of the sea; and then it may become * No. 78. - Busk v. Royal Exchange Assurance Co., 2 Barn. & Ald. 76, 77. a nice question, whether a sufficient watch was kept, or whether a cable was taken in or an anchor let go in due time. It is a strong argument against this defence, that a loss has never been resisted on such a ground before. Our law does not afford any express authority upon this point, as far as the subject of marine insurance is concerned. The rule laid down by Emerigon, p. 434, is this, that where the policy contains a clause against barratry, the assurers are liable for the negligence of the master and mariners. It is true that the term " barratry" is used, in the French law, to express the negligent as well as the wilful misconduct of the mariners. Straccha and Targa there cited, who use the term barratry in its more limited sense, lay down the same rule, and the authority of those writers is directly in favour of the plaintiff's right to recover. Bosanquet, Serjt., contra. The assurers are not liable in this case, upon two grounds: First, because the loss * was [*77] occasioned by the negligence of the servant or agent, and constructively, therefore, by the negligence of the assured himself; and, secondly, because at the time of the loss, the mate having absented himself, the ship was not properly manned, and therefore there was a breach of an implied warranty. Upon the first point there is no express authority in our law, but the subject is considered both by Valin and Pothier. The former, in his Treatise. that on the French Ordinance of Marine, book 3, tit. 6, Des Assurances, article 27, vol. ii. p. 77, lays it down expressly, the assurers are not liable for losses by the fault of the master and mariners, if by the policy they are not charged with a loss by barratry;" and in page 79 he adds, art. 28: "By the nature of the contract of assurance, the assured is not charged of right to answer but for losses which happen by accident or by chance of the sea; which is altogether foreign to the fault which the master and mariners may commit, and such is the common right." According to the opinion of Valin, therefore, the assurers, generally speaking, are not liable for a loss occasioned by the negligence of the master and mariners. In page 80 there is this passage: "Nevertheless, by agreement the assurers may be bound to indemnify the assured, and for this it is only necessary to charge them in the policy with barratry of the patron, energetic terms which absolutely comprehend all the damage which can result from the act of the master and his crew, whether by unskil |