266 F. 14 | 2d Cir. | 1920
The Santa Catharina left New York on July 25, 1914, bound for Rio de Janeiro. She carried cargoes which were insured by the appellant. She was a German steamship. Before reaching her port in South America, the recent war between Great Britain and Germany broke out on August 11th, she was seized as a prize by his majesty’s ship Glasgow in latitude 18° 30' and longitude west 38° 24'. The marine risks expressly assumed by the underwriter were against fire. The policies contained the usual clause, excepting loss or expenses arising from capture, seizure, restraint, detention, or destruction, or the consequences thereof; also from all consequences of riots, insurrections, hostilities, or warlike operations. The circumstances concerning the seizure of the vessel and the sub
After being captured, a prize crew was placed on board. She was not taken to any port, but remained anchored at a spot on the South American coast outside of territorial waters and in the near vicinity of a rendezvous of British ships of war and their colliers, store ships, and prizes. The prize crew was composed of men taken from the Glasgow, with a lieutenant of the British navy, a petty officer, an able seaman, and two stokers. The lieutenant’s affidavit says that his attention as called to the high temperature of the coal on board, especially in the thwartship bunker, which appeared to have had water poured on it by the German crew. He ventilated the coal by taking off the hatches, closed the apertures below to prevent air passing through the coal, and watered it as much as possible. On September 30, he got up steam in one boiler and pumped water on the coal, and on October 1, Admiral Grant, of the British navy, who had taken charge of the ships at the rendezvous, came aboard and gave directions that the heated coal, which was principally on the starboard side of the bunker, should be renloved from that on the port side, which was not heated, and this was done. The lieutenant says it was not possible to jettison the coal, and this, because there was too much coal in the bunker for jettisoning with the crew and appliances which were available. On October 4, the thwartship bunker was flooded to a depth of about two feet, and on the following day it was observed that the coal was completely submerged with water.
On the 10th of October, pursuant to orders of Admiral Grant, the prize crew was taken off and put on the Glasgow, for the reason that the Glasgow had received orders to leave and join the squadron at once at some distant place. On the afternoon of the 10th, the captain of the British admiralty coming from a merchant ship, Orama, which arrived at the rendezvous that afternoon, was given charge of the Santa Catharina and other ships there. He was informed of the condition of the Santa Catharina and told that the prize crew would be taken off; also that there was no imminent danger to the Santa Catharina, and therefore he proceeded with coaling his own vessel. Before leaving the ship, the lieutenant in charge of the prize crew drew the fires of the boiler which was used for pumping. No one was on board that night. The Orama anchóred about one mile from the Santa Catharina and continued coaling until the 11th. The weather was bad, a high wind blowing, and there was considerable sea running. At about 1 p. m. on the 11th of October, smoke was seen coming from the Santa Catharina. A captain of the admiralty,' with some 16 men, put out in a cutter to her, .and they took with them all the fire-extinguishing apparatus which was available. They got on board the Santa Catharina and opened her fiddly door; volumes of smoke
After the capture, and before the fire and final destruction of the vessel, the underwriters entered into an extension agreement, and this for an additional premium of two cents a day. They insured the cargo:
“In ease' the steamer which the merchandise hereby insured is laden shall put into any port owing to hostilities, or in case the said merchandise is detained at any port or place owing to the same cause, it is agreed without prejudice to the rights under existing insurance, but subject to the terms thereof, that the same shall be held covered at an equitable premium to be charged by this company when particulars are known, afloat or ashore, or by any steamer or steamers until delivered at original point of destination, or in ease the goods are not forwarded to destination, until the .shipper or consignee can take delivery at the port or place where the original voyage or transit is abandoned, against the same risks only as are covered by the original insurance, and excluding expense of damage due to deterioration, delay, or handling.”
A recovery was allowed in each case, because it was held that the proximate cause of the loss of the cargo was the fire, a risk expressly assumed by the underwriters.
9If a cause is approximate in its efficiency, it can be said to be truly proximate. If the efficiency can be said to have been preserved, although other causes may have sprung up, which have not destroyed or impaired the same efficient cause, a result may follow in which that cause still remains the real efficient cause, and to which the event can be ascribed. This court said in Muller v. Globe, etc., Co., supra:
“If there is an unbroken connection between act and injury, tbe act causes tlie injury; an intervening act is not the proximate cause of injury, unless it is efficient to break the causal connection.”
"ITire must rcacb the tiling insured, or come within such proximity to it that damage, direct or indirect, is within the compass of reasonable probability. Then only is it the proximate cause, because then only may we suppose that it was within the contemplation of the contract. In last analysis, therefore, it is something in the minds of men, in the will of the contracting parties, and not merely in the physical bond of union between events, which solves, at least for the jurist, this problem of causation.”
This case comes within that category of questions of proximate cause which are considered questions of fact — usually determined by a jury. Plere the court below resolved the question of fact, in a court of admiralty, in favor of the libelants. We agree with the conclusion, which the District Judge reached, that the proximate cause of the destruction of the cargo was the fire.
The decrees are affirmed.