stance in the harbor, due to the ebbing of the tide, is a loss. by a peril of the sea, unless it was mere wear and tear, or unless it was an ordinary and natural occurrence. Injuries caused by the negligence of the master or crew are also covered, unless, there is an express stipulation against them -as is not uncommon.95

In policies which contain an exception protecting the insurer from injuries caused by lack of ordinary care and skill of the navigators, it is the tendency of the courts to construe this phrase strictly against the insurer. They construe it in such cases to apply rather to the general qualifications of the crew than to their carelessness in particular instances.96

The courts also hold that injuries received by collision with another vessel are covered, though not injuries inflicted. This question is discussed in the case of GENERAL MUT. INS. CO. v. SHERWOOD," in which the opinion was rendered by Mr. Justice Curtis.

In Peters v. Warren Ins. Co.,98 the court held that under the term "perils of the sea" the insured could recover not only the damage received by his vessel, but the amount that he had to pay in general average, under the provisions of the German law, to the other vessel. As to the latter part of this decision, however, it turned upon the peculiar provisions of the German law of average, making the vessel liable in such case even without fault. But it was not intended by the Supreme Court in that case to decide the general proposition that the above term quoted in the policy gave the right to recover for injuries inflicted.

In this respect the law of England is the same as that of America.99

95 Rogers v. Etna Ins. Co., 35 C. C. A. 396, 95 Fed. 103; Orient Mut. Ins. Co. v. Adams, 123 U. S. 67, 8 Sup. Ct. 68, 31 L. Ed. 63.

96 Egbert v. St. Paul Fire & Marine Ins. Co. (D. C.) 71 Fed. 739. 97 14 How. 357, 366-367, 14 L. Ed. 452.

98 14 Pet. 99, 10 L. Ed. 371.

99 De Vaux v. Salvador, 4 A. & E. (31 E. C. L. 195). 420.

The clause covers fire caused by negligence of the crew, the proximate cause in that case being taken to be the fire; but, if the fire was caused not by the mere negligence, but by design, then the proximate cause would not be the fire, but the design, and the underwriter would be liable if his policy covered barratry, but not if otherwise.1

In the G. R. Booth, Mr. Justice Gray discusses the meaning of the clause in a bill of lading, and says that it has the same meaning as in an insurance policy, except that negligence of the master has a different effect in the two contracts.2

SAME BARRATRY

32. Barratry is an act committed by the master or mariners of the ship for some unlawful or fraudulent purpose, contrary to their duty to their owners, whereby the latter sustain an injury.

The above is the definition given by Justice Story in Marcardier v. Chesapeake Ins. Co.3

The meaning of the term is discussed at great length and learnedly in PATAPSCO INS. CO. v. COULTER.* It seems to exclude the idea of mere negligence, to involve at least some element of design or intention or negligence so gross as to be evidence of such design or intention. In that case the final decision was that, where the loss was caused by a fire, and it appeared that the master and crew did not take proper steps to extinguish the fire, the cause of loss was the fire, and not the negligence of the crew, and therefore they held the insurer liable.

In the more recent case of New Orleans Ins. Co. v. Albro

1 Waters v. Merchants' Louisville Ins. Co., 11 Pet. 213, 9 L. Ed. 691.

2 171 U. S. 450, 19 Sup. Ct. 9, 43 L. Ed. 234.

32. 38 Cranch, 39, 3 L. Ed. 481.

43 Pet. 222, 7 L. Ed. 659.

5

Co., a voyage had been broken up, and the cargo sold. It was charged that the master made the sale in a method knowingly contrary to his best judgment, and to the injury of the parties interested. The court held that this, if so, would constitute barratry.

As barratry is something done to the prejudice of the owners, it follows that the master who is sole owner cannot commit barratry, as a man can hardly cheat himself; but, if he is part owner, he can be guilty of barratry towards his other owners.

SAME-THEFTS

33. Thefts in a marine policy, according to the better opinion, cover thefts from without the ship, and do not cover thefts by the crew.

This is the decision according to the great preponderance of English authority. Parsons, in his Marine Insurance, states that the weight of American authority would make the insurers liable for larceny by the crew. His citations, however, hardly seem strong enough to meet the reasoning of the English cases.

5 112 U. S. 506, 5 Sup. Ct. 289, 28 L. Ed. 809. In Compania de Navigacion La Flecha v. Brauer, 168 U. S. 118, 18 Sup. Ct. 12, 42 L. Ed. 398, Mr. Justice Gray held that "there was no barratry, because there was neither intentional fraud, nor breach of trust, nor willful violation of law, one of which, at least, is necessary to constitute barratry."

6 Marcardier v. Chesapeake Ins. Co., 8 Cranch, 39, 3 L. Ed. 481; Jones v. Nicholson, 10 Ex. 28.

§ 33. 7 Taylor v. Steamship Co., L. R. 9 Q. B. 546. This case also holds that thefts are not covered by a clause insuring against "damage to goods."

8 1 Pars. Mar. Ins. 563-566, and notes.

SAME-ALL OTHER PERILS

34. "All other perils," etc., mean all other perils of the same general character.

These words, according to the construction placed upon them by the courts under the rule of ejusdem generis, are intended as a general safeguard to cover losses similar to those guarded against by the special enumeration, and not in as sweeping a sense as the language would mean.

The English Marine Insurance Act, 1906 (under the rules of construction annexed to the first schedule of section 30), expresses this as "only perils, similar in kind to the perils specifically mentioned in the policy."

But "all risks by land and water" cover all risks whatsoever."

The leading case as to the meaning of these words is THAMES & M. MARINE INS. CO. v. HAMILTON,10 wherein Lord Bramwell, in his opinion, in reference to the meaning of these words, uses the following language: "Definitions are most difficult, but Lord Ellenborough's seems right: 'All cases of marine damage of the like kind. with those specially enumerated, and occasioned by similar causes.' I have had given to me the following definition or description of what would be included in the general words: 'Every accidental circumstance not the result of ordinary wear and tear, delay, or of the act of the assured, happening in the course of the navigation of the ship, and incidental to the navigation, and causing loss to the subject-matter of insurance.' Probably a severe criticism might detect some faults in this. There are few definitions in which that could not be done. I think the definition of Lopes, L. J., in Pandorf v. Hamilton [16 Q. B. D. 629], very good: 'In a seaworthy ship, damage of goods caused Schloss v. Stevens, [1906] 2 K. B. 665.

§ 34.

10 12 A. C. 484.

by the action of the sea during transit, not attributable to the fault of anybody,' is a damage from a peril of the sea. I have thought that the following might suffice: 'All perils, losses, and misfortunes of a marine character, or of a character incident to a ship as such.'" And Lord Herschell, in his opinion, discusses the cases which had previously passed upon them. The case was an insurance under a time policy, in which, under English law, as previously stated, there is no implied warranty. The donkey engine was being used pumping water into the main boilers, but, owing to the fact that a valve was closed which ought to have been left open, the water was forced into and split open the air chamber of the donkey pump. The court held that, whether the closing of the valve was accidental or due to the negligence of the engineer, it was not such an accident as was covered either by the words "perils of the sea," or by the general saving clause above quoted.

PROXIMATE CAUSE OF LOSS

35. Where an injury is due to more than one cause, the efficient predominating cause nearest the loss is considered the proximate cause, though later causes incidental thereto are also set in motion. Any later cause, to supersede the first, must be an independent cause.

This definition is the result of the decisions of the United States Supreme Court in HOWARD FIRE INS. CO. v. NORWICH & N. Y. TRANSP. CO.11 and the G. R. Booth,12 where the subject is thoroughly discussed.

The question what is the proximate and what the re mote cause gives rise to some of the most difficult points in marine insurance law. The only general rule is that

§ 35. 11 12 Wall. 194, 20 L. Ed. 378.

12 171 U. S. 450, 19 Sup. Ct. 9, 43 L. Ed. 234.