282 F. 976 | 2d Cir. | 1922
Lead Opinion
(after stating the facts as above). The District Judge examined into the cause of collision, and, from the testimony offered, incomplete as it is, concluded that the collision was due to faulty navigation. It was determined that the loss was not covered by 'the war risk policy, but was cohered by the marine policy, and the libel was accordingly dismissed. The provisions of the war risk policy assume all the consequences of hostilities or warlike operations, while the f. c. and s. clause of the marine policy excludes all consequences of hostilities or warlike operations. The appellee’s war risk policy covers “acts of kings, princes, and people authorized by and in prosecution of hostilities between belligerent nations.”
In order to impose liability under the war risk clause policy, “all forms of hostilities or warlike operations of whatever kind” must consist of some form or kind of hostility or warlike operations which have proximately caused the loss. Remote consequences of hostilities cannot become a recoverable loss, even if they may be said to be proximately caused by soniething itself ascribable as a consequence of hostilities. British Steamship v. The King, [1921] 1 A. C. 99, 107, 131.
The phrase “all consequences” has been held by the British
“If the operation relied upon as a warlike operation is one which creates no new risk, but only aggravates or increases an existing maritime risk, by removing something which, but for the war, would have been a safeguard against the risk, then the risk is not a war risk. But, if the peril be directly due to hostile action, it is a war risk.”
When one vessel of one of the convoys was attacked by a submarine, the course of the convoy was altered four points to the right; but before the convoys met, and this collision ensued, it was again altered four points to the left. This latter change must be deemed to have neutralized the former. The trial judge, who exhaustively examined the navigation of the vessels, concluded that the torpedoing of the vessel in the west-bound convoy was 5 hours before the meeting of the east-bound fleet, and did not affect the question of the collision. or its cause. It did slow up the convoy making progress towards its point of destination. It was about 30 nautical miles from the scene of the torpedoing of the Merida to the point of collision, and about 5 hours were consumed in making that distance. It is explained that there was zigzagging of the vessels in making at least part of this distance. We conclude that this attack, occurring, as it did, some 5 hours previous to the time of the collision, has no bearing upon the cause of the collision.
The appellant’s contention is that this engagement was a warlike operation, because (first) the vessels were sailing without lights; (second) that they were proceeding in convoy; and (third) that the Napoli carried a cargo intended for warlike use. Where vessels proceeded at sea during this war period, it was the custom to sail without lights. These vessels were all operated without lights. The voyages upon which each of the vessels were engaged would, if in time of peace, be treated as an ordinary maritime adventure. It would not become a warlike operation, within the intention of the terms of the policy, because of the fact that, as a precaution against possible attack or capture, the masters of the vessels did not show lights during the night,
Therefore we conclude that sailing without lights was neither a warlike operation nor was it the consequence of one. The reason for sailing without lights was due to the submarine peril, but the collision was due to faulty navigation, which cannot be said to be the proximate consequence of the failure to have lights. It appears that the lights were turned on just before the collision as the convoys met. The authorities of the House of Fords of England are fully in accord in pronouncing that sailing without lights does not constitute a warlike operation. The Petersham Case, Britain S. S. Co. v. The King, [1921] 1 A. C. 99. In the Ionides Case, 14 C. B. (N. S.) 259, a cargo was placed on board the ship Fhrwood, insured by a policy warranted free from all consequences of hostilities. On her way from New Orleans to New York in 1861, her master, supposing that he had passed Cape Harteras, instead of keeping his course N. N. E., changed it to W., and went ashore about 10 miles south of the Cape. 'Until the outbreak of the Civil War, a light had always been maintained at Cape Harteras; but it had been extinguished by the Confederate authorities for hostile purposes. The court of first instance in England held the proximate cause of the loss was the peril of the sea and that the underwriter was therefore liable. This decision was by the Court: of Common Pleas. It later met with approval in the Petersham Case, supra, and was approved by Mr. Justice Brown, when a District Judge, in Richelieu & Ohio Navigation Co. v. Boston Marine Ins. Co. (C. C.) 26 Fed. 605, and later in The Titania (D. C.) 19 Fed. 104, by Judge Addison Brown. It involved the application of the doctrine of proximate cause. There, there was hostile action in the matter of the extinguishing of Pe lights by the Confederate troops, and there was a maritime casualty due to stranding, both of which had bearing upon the liability under the marine policy which warranted “free from all consequences of hostilities,” and the question whether the proximate cause of the loss was a marine peril or hostilities was presented. It always becomes necessary to distinguish between causes and conditions as well as proximate and remote causation. The distinction must always be maintained between warlike operations and acts done in the course of a war.
The maxim, “causa próxima non remota spectator,” as a guide in this determination, compels the conclusion that the absence of light does not justify the claim of the appellant that that of itself consti
But at the time of the collision none of these things which it was the duty of the escorting vessels or naval officers to perform took place. There-was no requirement at that time for their services. It was no command of the naval officer which brought about the collision. It has been held by a divided court in England that sailing in convoy is not a warlike operation. British India Steam Navigation Co. v. Green, [1919] 1 K. B. 632; [1919] 2 K; B. 670; [1921] 1 A. C. 99. In the House of Lords, the majority of the Lords declined to hold that the vessels convoyed become identified with the ships of war protecting them. The east and west bound convoys were each navigating for itself. The course of the convoys might cross in any event, and it was obviously impossible for the allied naval authorities to have laid out their courses so that they would not meet. Each sailed in complete ignorance of the other’s sailing, from all that the record shows, and we find nothing concerning the convoys’ courses which might be said to constitute a warlike operation.
Nor can it be said that fhe character of the cargo made the adventure a warlike operation. The nature of the operation, and not the character of the cargo or the persons in charge, has been held to be the material thing to be considered in England. Owners of S. S. Marchtrove v. The King, 36 Times L. R. 108. There a vessel chartered to the United States Navy, carrying munitions for the American Army in France, was held to be only a cargo ship, and in Harrison, Ltd., v. Shipping Comptroller, [1921] 1 K. B. 122, the vessel stranded on her way from Salonika to Tranto, having on board hospital stores for the British government and carrying a few British troops, and it was held that she was not engaged in a warlike operation, since her aim was to get as peacefully and expeditiously as she could to her harbor of destination. The war risk would be the same, no matter what the character of the cargo, as would the marine risk. “The dominant feature of the ship and the dominant object of the voyage must be looked at.” Harrison, Ltd., v. Shipping Comptroller, supra.
The District Court held that both the navigators of the Napoli and the Lamington “failed in their ship management to.exercisp the ordinary care and skill of their calling,” and concluded that the proximate cause of the collision must therefore fall upon the marine underwriters. An examination of such testimony as has been offered
We think the loss is one that must be sustained by the marine underwriter, and not by the war risk underwriter, and that the decree below must be affirmed.
ROGERS, Circuit Judge. I concur in the conclusion announced in the foregoing opinion.
Concurrence Opinion
(concurring). The District,Court was of opinion that the collision resulted proximately “from poor navigation on the part of both vessels.” It seems to me that neither vessel was legally at fault. If we assume that the District Court was right in ascribing fault to each vessel, yet such fault must be regarded as having been committed in extremis in a situation so unexpected, confusing, and exciting as to invite for its description the pen of a Conrad. If the case were unembarrassed by authority, I should say that the method of navigation prescribed by the naval authorities was the proximate cause of collision.
It is true that, so far as disclosed by the evidence, there is “nothing to show that Napoli or any other merchantman was compelled to go in convoy.” Yet this, I think, refers more to form than to substance. If a merchantman had set out without convoy for a voyage through a known submarine-operated area, her owner or master would have been subjected to grave condemnation for the risk to life, as well as property, thus recklessly incurred.
There was a moral compulsion to seek convoy aid, equivalent, in war, to a compulsion in law. When, therefore, these vessels began their voyages in opposite directions, the flotilla in which each was grouped was under command of navigators from the top down, who knew nothing whatever of the existence or movement of the other flotilla. Why was this ? Obviously, because of war necessity. In effect, the navigators were not free agents, so far as concerned their ability to anticipate, by the ordinary usages and precautions of navigation, the presence of the other convoyed vessels; and this going to sea, almost with closed eyes, was imperative for the delivery of cargoes vital to sustain the physical and economic life of allies and associates co-operating to defeat a common enemy. This war, perhaps more than any other, has emphatically demonstrated that the furnishing of munitions and supplies is as indispensable an operation of war as the movement of armies and navies. The point of the Ionides Case is found in the opinion of Byles, J., when he said:
“First the original meritorious cause (and in popular language the cause of the loss) was the captain’s being out of reckoning. * * * The absence of the light was * * * merely the absence of an extrinsic saving power."
The questions in the case at bar are not local, but affect an important class of world-wide business, in which the relations are so interwoven and connected that it would be unfortunate and confusing if a court of less authority than the Supreme Court of the United States were to arrive at a result different from that reached by the House of Lords.
For that reason, I think the decree should be affirmed.