53 Me. 118 | Me. | 1865
The objection to the maintenance of this suit, before an offer of reference, cannot be sustained. No suggestion of such defence appears in the specifications; it is not, therefore, now open to the defendants.
January 17th, 1862, the defendants insured the plaintiff $4000, on a cargo of molasses on board the " Benjamin Cush-ing,” from Cardenas to Portland, as per policy. The vessel sailed from Cardenas on the 8th of January, 1862, and, on the same day struck upon a reef, in consequence of which, the master was obliged to put into Havana for repairs. Here the vessel was repaired by recaulking, putting in some now planks, and some repairs upon the mainmast. To pay for these repairs, the master was obliged to sell a part of the cargo, as he had no other means of raising the funds. After making the repairs, the master sailed for Portland with the remainder of the cargo on board, but soon after, striking upon "French reef,” the cargo became a total loss. On the part of the plaintiff, it is claimed that the insurers are liable for that portion of the cargo sold at Havana to raise money to pay for the repairs there made. This is denied by the defendants. And the whole question depends upon whether this was a loss caused by a peril of the sea. If it was, it was covered by the policy, otherwise it was not. It is very clear that the act of selling was not a peril of the sea, neither was the fact that the vessel needed-repairs ; for this might have happened from ordinary wear and tear, or from other perils attendant upon a sailing vessel, not insured against. It may however be admitted that striking upon the reef, by which the injury was done, was a peril of the sea. It may also be admitted, that, under the cir
In that case, to bring the loss within, the policy, it was deemed necessary that it should be the " natural or necessary consequence of the peril insured against,” that the peril was the sole proximate cause of the loss, So, in United States v. Hall, 6 Cranch, 171, (2 Curtis, 357,) it was said -that " an effect, which proceeds inevitably, and of absolute necessity, from a specified cause, must be ascribed to that cause.” The inference is that, if otherwise, it would not be so ascribed. It would seem to follow that, to render the insurers liable, the peril insured against must be the sole proximate cause of the loss, so causing it, and so connected with it, that it could not have been otherwise produced. And the loss must be so dependent upon the peril, that it is not only the natural result but is the necessary and inevitable effect of it. No authority has been cited, and we have seen none, which does not fully sustain this view. In the case at bar, the repairs made were such as the owner under his contract as common carrier was bound to make, and although, in this case, the damage was caused by a peril insured against, yet the result would have been the same if caused in any other way, and, under the circumstances,, the master would have had the same right to sell the cargo. It would seem to be very clear then that the sale was not the necessary result of the peril at sea, but rather of the want of funds or credit, in port. It grew out of the contract of the plaintiff with the master or owner, and did not attach to his contract with the insurer. The sale was not imme-
The case of Hale v. Washington Insurance Co., 2 Story, 189, cited for the plaintiff, might, perhaps, lead to a different conclusion. But this case has been distinctly overruled by the Supreme Court of the United States, in General Mutual Insurance Co. v. Sherwood, 14 How., 351, (20 Curtis, 221.) This latter case we consider to be sustained by the
The conclusion to which we come upon the first point is more fully illustrated and confirmed, by the principles applicable to the second point raised by counsel; by which it is claimed that, if the defendants are not liable as for a total loss, for the full value of the property sold at Havana, they are at least responsible for the proportion of the general average, which the whole cargo would be subjected to, if an average had been made up at Havana. This depends, of course, upon whether the goods sold were chargeable to general or particular average. If to the former, it would seem to follow that the underwriters would be liable.; if to the latter, the party for whose benefit they were sold, would alone be liable. And here, again, arises the question already considered, was the sale caused by a peril, of the sea? It should be remembered, that the peril of the sea was passed, the damage had been done, and still the cargo was safe. Now, to make property a subject of general average, it roust have been sacrificed to avoid an impending peril, and for the benefit of all concerned. In this case it was sold to repair damage caused by a peril passed, .and not for the benefit of all parties, but of one only. As we have already seen, it was the duty of the ship owner to make these repairs, and, what is quite as important in .its bearing upon the question under consideration, the repairs made were permanent, such as were needful to the vessel, and of which the owner finally had the sole benefit. If the repairs had, from the necessities of the 'case, been merely temporary in their nature, made for the sole purpose of enabling the vessel to proceed
Abbott, in his work on shipping, (4th ed.,) p. 349, recognizes this distinction, and remarks that, " expense incurred in port, in which the ship may have taken refuge during the voyage, by repairing the damage done to the ship by tempest alone, seems with more propriety to fall upon the owners, and is so held in the civil law, and by many foreign writers.”
In Plummer v. Wildeman, 3 M. & S., 482, in speaking of the expenses necessary to enable a ship to proceed on her voyage, as being chargeable to general average, Lord El-leNborough remarks, " but if any benefit ultra the removal of this incapacity should have accrued to the ship by repairs alone, inasmuch as that will redound to the particular benefit of the ship owner only, it will not come under the head of general average.”
In Padelford v. Boardman, 4 Mass., 548, the same distinction is made, and distinctly settled. Also, in Bedford Commercial Ins. Co. v. Parker, 2 Pick., 8—9; Brooks v. Oriental Ins. Co., 7 Pick., 268; Arnould on Insurance, 894, 895; Thornton v. The United States Ins. Co., 12 Maine, 150, the allowance of general average is confined to the "expenses necessarily incurred during the detention for the benefit of all concerned,” and does not include repairs to the vessel.