39 U.S. 99 (1840), Peters v. Warren Ins. Co.

Citation:39 U.S. 99, 10 L.Ed. 371
Case Date:February 24, 1840
Court:United States Supreme Court

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39 U.S. 99 (1840)

10 L.Ed. 371




United States Supreme Court.

February 24, 1840


ON a certificate of division from the Circuit Court of the United States, for the District of Massachusetts.

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This was a case on a policy of insurance, dated the 1st of April, 1836, whereby the defendants insured the plaintiffs, for whom it may concern, payable to them, eight thousand dollars on the ship Paragon, for the term of one year, commencing the risk on the 15th day of March, 1836, at noon, at a premium of five per cent. The declaration alleged a loss by collision with another vessel, without any fault of the master or crew of the Paragon; and also insisted on a general average and contribution.

The parties agreed that the verdict should be rendered by the jury for the plaintiff or for the defendants, according to the opinion of the Court, upon the matters of law arising upon the following statement of the facts of the case. The plaintiffs are the owners of the ship Paragon, insured by the defendants in part.

On the 10th of November, 1836, the vessel sailed from Hamburgh, in ballast, for Gottenburgh, to procure a cargo of iron, for the United States.

Whilst proceeding down the Elbe, with a pilot on board, she came in contact with a galliot called Frau Anna, and sunk her. The Paragon lost her bowsprit, jib-boom, and anchor, and sustained other damages, which obliged her to go into Cuxhaven, a port at the mouth of the Elbe, and subject to the jurisdiction of Hamburgh, for repairs.

Whilst lying there, the captain of the galliot libelled the Paragon in the Marine Court, alleging that the loss of the vessel was caused by the carelessness or fault of those on board the Paragon. The ship was arrested; but subsequently released on security being given by the agents of the owners, to respond to such damages as should be awarded by the Court.

The captain of the Paragon, in his answer, denied the charges of carelessness or fault on the part of those on board of his ship; and the Court, after hearing the parties and their proof, decided that the collision was not the result of fault or carelessness on either side; and that therefore, according to article first, title eighth, of the Marine Law of Hamburgh, the loss was a general average loss, and to be borne equally by each party: that is, the Paragon was to bear one-half of the expense of her own repairs, and to pay one-half of the value of the galliot; and the galliot was to bear the loss of one-half of her own value, and to pay one-half of the expense of the repairs of the Paragon. In conformity with this decision, a general average statement was drawn up by Mr. Oldermann, the Despacheur of Hamburgh; an officer appointed by law, and by whom alone such statements can be prepared.

In this statement are charged, first, the expenses of repairing the Paragon, after making the deduction of one-third new for old, saving one of her anchors and chains, which was lost at the time of the collision; wages and provisions of the captain and the crew, during the detention, and the expenses of surveys, protest, defending the suit, &c., amounting in all to about eight hundred dollars, and one-half of which is charged to the Paragon, and one-half to the galliot.

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Secondly, are charged the value of the galliot, as by appraisal under an order of Court, of her freight and cargo, the expenses of surveys, protest, prosecuting the suit, &c., amounting in all to about six thousand dollars, one-half of which is to be charged to the Paragon.

The statement concludes thus: 'Which according to the before mentioned ordinance relating to insurance and average, is to be borne by ship, cargo, and freight, as general average. The ship Paragon has to claim from the Frau Anna, for half the damages, say $400

And the Frau Anna from the Paragon, one-half the damages, say $3,000

So that the Paragon must pay $2,600'

Which amount the Tribunal of Commerce decreed should be paid instanter.

The owners of the Paragon, having no funds in Hamburgh, the Captain was obliged to raise the money on bottomry.

There being no cargo on board of the Paragon, and no freight earned, the ship has to bear the whole of the general average loss.

The judges of the Circuit Court were opposed in opinion on the following point and question, viz. 'whether, in this case, the contributory amount paid by the Paragon on account of the collision, was a direct, positive, and proximate effect from the accident, in such sense as to render the defendants liable therefor upon this policy.'

And on the point and question aforesaid, at the request of the defendants, the same was stated by the said judges, and under their direction as aforesaid, it was ordered to be certified under the seal of the said Circuit Court to the Supreme Court of the United States, at their next session, to be by the said Court finally decided.


The case was submitted to the Court on printed arguments by Mr. Webster for the plaintiff; and Mr. Theophilus Parsons for the defendants.

Mr. Parsons for the defendants.

The principal question in this case is, whether the amount paid on account of the collision between the vessels, is a direct, positive, and proximate effect from the accident.

We do not undertake to say that there are no contracts in which the remota causa spectatur, but certainly the law of insurance looks only at the proximate cause. Is the collision, then, in this case, a remote, or a proximate cause? If the law of Hamburgh is the proximate cause, and the collision the remote cause, then we are clearly discharged; because we do not insure against the law of Hamburgh, nor against any remote cause. But we do insure against collision, and the question, therefore, now takes this shape: is the law of Hamburgh, with its requirement of contribution, to be taken as a part of the act of collision?

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If these questions are to be settled rather by the common sense than by the metaphysics of the law, then it would seem to be clear, that the collision here is the remote cause; for another cause, to wit, the law of Hamburgh, comes between the collision and the contribution; and not only so, but it is this law which actually causes the contribution. The collision, then, is not the proximate cause, for that is proximate which lies nearest; and here another cause is interposed, and thus lies nearer.

How are the authorities? In this country it is a new question, and there are no cases which bear very strongly upon it. But in England, just this question occurred very recently, and was fully reported in the fourth volume of Adolphus and Ellis, p. 420, De Vaux vs. Salvador. This case, interesting both from its novelty and its importance, was fully considered, first, by Lord Denman, and then by the Court of Queen's Bench, on a motion for a new trial; and the decision was fully and pointedly for the defence, on precisely the grounds we have taken here. Nothing can be more exact than the analogy between that case and this; nothing more precise and definite; and as we think, nothing can be more reasonable, than the principles upon which this case is decided in England. Will this Court decide precisely the same case, on precisely opposite grounds? Some of the continental authorities may seem to be against us. But, not to dwell on the circumstance, that their whole 'doctrine of contract' rests upon the civil law, and that the difference, in this respect, between their law and ours, greatly weakens their authority, as precedents for us; not to dwell on this; it is very important to remember, that they, as Emerigon and the rest, decide that insurers shall repay the contribution; but they decide under the influence of the law which requires the contribution. That is, on the continent, generally perhaps, a rule like that of Hamburgh, dividing the loss from collision, between two innocent vessels, prevails. To the continental writers it is familiar; they are accustomed to the law, and to all the usages going with the law, which law is perfectly well known there by everybody; and it is very natural that they should hold insurers liable for the contribution, as if it were a component part of the collision: very natural, and perhaps, very right. Not so with the English Courts, or our own: for here the law so dividing this loss, is unknown; we have none here, and our citizens make their bargains under no such contemplation; and therefore, the Courts of England decide rightly there, and our Courts should decide like those of England, and unlike the continental writers, because our laws and usages are like those of England, in respect to the liabilities of vessels in cases of collision, and unlike those of the continent. And our laws in respect to the liabilities of the vessels being alike, so should our laws be in respect to the obligations and implied contracts of insurers, in regard to that contract. We insured against damage to the Paragon; but we did not insure against damage to any other vessel.

But there is another view of this subject, which seems to us perfectly

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decisive. The continental authorities not only decide...

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