Fulton v. Lancaster (Ohio) Insurance 7 Ohio 5

John G. Fulton and William R. Foster v. The Lancaster (Ohio) Insurance Company.

A policy of river insurance containing no clause against barratry does not cover a loss, the remote cause of which is the negligence of the master or crew. Cases on this subject reviewed.

This cause was adjourned from the county of Muskingum. The points in discussion, and the form in which the case came up, are fully stated in the arguments of counsel and the opinion of the court. >

*295Goddard and Converse, for plaintiffs:

This is an action of assumpsit on a policy of insurance, dated March 16, 1836, whereby the defendants caused the plaintiffs “ to be insured five thousand dollars, on a ñat-boat and cargo, at and from Duncan’s Palls to New Orleans; that is, four thousand eight hundred dollars on the cargo, consisting of eight hundred barrels of flour, and two hundred dollars on the boat.” The boat, with the cargo on board, left Duncan’s Palls, and while proceeding on the voyage was wrecked on Cheadle’s island, in the Muskingum river.

At the trial on the circuit the evidence showed, in the opinion of the court, that the loss might have been avoided, *but for the want of ordinary care and attention on the part of the captain and crew, at the time when the boat, in making a bend of the river, came in sight of the island, and a short time before the loss occurred. The jury fonnd a verdict for the plaintiffs for the sum of one thousand seven hundred and seventy-nine dollars and thirty-four cents. The defendants moved for a new trial, on the .ground that the verdict was against evidence, and this motion was reserved by the court for decision in bank.

The case presents this question: Is a loss of property insured, the immediate cause of which loss is one of the perils insured .against, and the remote cause the negligence or carelessness of the captain or crew, covered by the policy, and such as will •charge the insurers?

The clause in the policy material to the decision of this question is as follows: “Touching the adventures and perils which the said insurance company are contented to bear and take upon •themselves in the premises, they are of the rivers, fires, enemies, pirates, rovers, assailing thieves, and other perils, losses, and misfortunes which shall come to the damage of the said boat and cargo, according to the true intent and meaning of this policy, as herein expressed.” The plaintiffs claim that, the captain and crew, being competent in skill and in numbers at the time when the risk attaches and the vessel sails, the insurers are liable for a loss arising immediately from any of the perils enumerated in the policy; although-the remote cause of such loss may be traced to the negligence or carelessness of those intrusted with the management of the vessel. If the defendants .are not liable, it is because of an implied warranty that the eapLain and crew shall possess and exercise ordinary skill and care

*296 during the whole voyage. We contend that the extent of the engagement of the insured is, that the captain and crew shall be competent in skill and sufficient in numbers at the time the risk attaches and the vessel sails. The only warranty implied by law, on the part of the insured, is, that the vessel shall be sea-worthy. By the warranty of sea-worthiness, he undertakes that the vessel shall be stout, staunch, and tight; have sufficient stores and supplies; a captain possessing a capacity for the particular voyage, and skill in his profession, and a competent number of men for the management of the vessel. 1 Philips on Ins. 113, 114; 3 Kent’s Com., 2d ed. 287. And this warranty of sea-worthiness relates to the time of the commencement of the risk and sailing of the vessel. Peters v. Phoenix Ins. Co., 1 Bin. *592; 3 Serg. & Rawle, 25; 3 Kent Com. 287, 288; Busk v. Royal Ex. Ins. Co., 2 Barn. & Ald. 83; Crader v. Phil. Ins. Co., 2 Wash. 262.

In respect to the construction of a warranty of sea-worthiness in a policy on cargo and freight, it has been held to be the same as in a policy on a ship. 2 Phil. Ins. 106. “ The construction of the implied warranty is the same on the question respecting the goods and freight, as it is respecting the vessel,” per Sewell, J., in Taylor v. Powell, 3 Mass. 331. “ The implied warranty is the same in an insurance on goods and freight as it is on an insurance upon the vessel. It is, that the vessel shall be in a navigable state at the time she sails,” per Wilde, J., in Merchants’ Ins. Co. v. Clapp, 11 Pick. 56.

These authorities clearly show that the requisition that the boat shall be provided with a sufficient and competent crew, is a part of the implied warranty of sea-worth in ess; and that such warranty relates to the time of the departure of the boat from the place where the risk attaches, and is not a continuing warranty during the whole voyage. And is there not sound reason for this limitation ? The object of a person in effecting an insurance,- is to have the insurers protect him from Josses against which, after he has done all that he can do, he can notprotect himself. He is held liable, therefore, for any loss that may arise by reason' of his intrusting incompetent or careless men with the management of his boat, because he might have protected himself against such loss, by selecting competent and careful persons. He is liable if his boat be not properly constructed and of sufficient strength for the voyage on which she is about to depart, because he has it in his power to prepare and fit her out properly before she sails. But after he *297has done all this, and the boat takes her departure and is out of his sight,.he can not reasonably be required to do more. He has no power to prevent the occasional negligence of the captain or crew more than the insurers themselves have. They are beyond his reach. He has done all that he could do to securé skill, care, and attention, during the voyage, by selecting those who have the reputation among men, best acquainted with the business, of being skillful, careful, and attentive. And this is all the security which the insurers can require, or the insured can give, that the voyage will be carefully and prudently conducted. There is a risk that the vessel may be lost, after the owner has done everything he can do. This risk he would *guard against by taking a policy. He takes a policy — pays the premium — and has asked the insurers to protect him from loss, for the very reason that he can do nothing more to protect himself.

Again, the loss for which the insurers are liable must be a loss occasioned immediatety.by the perils insured against. Gausa próxima, non remota, spectatur; and this is adopted as a settled rule, to prevent uncertainty and dispute. 3 Kent’s Com. 302; Walker v. Maitland, 5 B. & A. 171; S. C., 7 Eng. Com. Law, 59.

The contract of insurance is a commercial contract. Its great benefit to the insured is, that if loss happen his business will not be. embarrassed or broken up. He can be immediately reinstated in his capital, without delay or prejudice to his mercantile arrangements. To effect this, the insurers must act promptly. There should be as little uncertainty as possible as to the losses for which they were liable. To this end, the rule is firmly established, which looks to the proximate cause alone. If a different rule be adopted, Abbott, Ch. J., says : “ It will introduce an.infinite number of. questions as to the quantum of care which, if used, might have prevented the loss. 1 am afraid of laying down any such rule. Walker v. Maitland, 5 B. & A. 171; S. C., 7 Eng. Com. L. 61.” If the rule, which regards only the proximate cause, be departed from, and the party permitted to speculate as to the remote causes of the loss, no general and certain rule can be laid down by the court. Each particular case must furnish a rule for itself; and what that rule is, can only be known with certainty after the case is decided. What loss ever took place that could not be traced back, after it had happened, to carelessness or negligence *298in a greater or less degree ? At what link in the chain of causation can the court say the inquiry shall stop ?

The defendants rely on the case of Lodwicks et al. v. Ohio Ins. Co., 5 Ohio, 433, decided by this court in 1832. The court are respectfully asked to consider the question and review the opinion pronounced in that case.

The same question has been recently decided by the courts of England, and by the Supreme Court of the United States, in cases not presented to this court when the question was discussed in 1832.

The ease of Lodwicks et al. v. Ohio Ins. Co. declares that “ no doctrine is better settled, than that the insurer is not *liable under the common clause in the policy for losses resulting from negligence of the agents employed by the insured. 5 Ohio, 435. The authorities referred to, in the opinion of the court, are Grim v. Phoenix Ins. Co., 13 Johns. 451; Phil, on Ins. 224, 225 ; Tate v. Levi, 14 East, 481; Cleaveland et al. v. Union Ins. Co., 8 Mass. 321; Hodson v. Malcolm, 5 New R. 336 ; 9 Johns. 21. The decision professes to be founded upon both the English and American cases. Now it is respectfully submitted to the court, that of all the cases cited, the New York decisions alone sustain the rule laid down by the judge who pronounced the opinion of the court. The case cited from 8 Mass. 321, furnishes nothing more than the dictum of Sedgwick, J.

That the law, as settled in England and by the Supreme Court .of the United States, is against the rule laid down in the ease decided by this court, will appear from the following cases:

Busk v. Royal Ex. Ins. Co., 2 B. & A. 72. In this case the loss arose from the negligence of the mate, in lighting a-fire in the cabin and not seeing that it. was properly extinguished. The case was elaborately argued by Campbell, for the plaintiff, and Bosanquet, for the defendant, on a motion by the plaintiff for a new trial, the jury having found a verdict for the defendants. Buyley, J.: “ The question which the facts of this case present for the consideration of the court, is whether the underwriters, on a policy of insurance on a ship, are liable for a loss by fire, that fire having arisen from the negligence of the person who, at the time of the loss, had the charge of the vessel. The policy expressly throws upon the underwriters the liability proceeding from fire, barratry of the master and mariners, and all other perils, losses, and mis*299fortunes that should come to hurt, detriment, or damage of the ship.” The object of the assured certainly was to protect himself against all the risks incident to a maritime adventure. The underwriter being therefore liable, prima facie, by the express terms of the policy, it lies upon him to discharge himself. Does he do so by showing that the fire arose from the negligence of the master and mariners? If the ship had been willfully sot on fire it would have been barratry, and the underwriters would be liable; but it has been argued that the underwriters are only liable /or loss by barratry because that is one of the risks expressly mentioned in the policy, and that the ^negligence of the master and mariners not being a risk expressly described in the policy, the underwriters are not liable for a loss thereby occasioned. In this case, however, the loss is occasioned by fire, against which the assured is protected by the terms of the policy; and in our law, at least, there is no authority which says that the underwriter’s are not liable for a loss, the proximate cause of which is one of the enumerated risks, but the remote cause of which may be traced to the misconduct of the master and mariners. If, indeed, the negligence of the master would exonerate the underwriter from responsibility in case of a loss by fire, it would also do so in cases of loss by capture, or perils of the sea, and it would therefore constitute a good defense in an action on a policy to, show that the captain had misconducted himself in the navigation of the ship, or had not resisted an enemy to the utmost of his power. It is certainly a strong argument against the objection, now raised for the first time, that in the great variety of cases upon marine policies which have been the subjects of litigation in courts of justice (the facts of many of which must have presented a ground for such a defense), no such point has ever been made.” Ib. 79, 80. The learned judge then reviews the opinions of foreign writers, referred to by counsel in the argument, and proceeds: “ The fair result, therefore, of all these authorities [i. e., Emerigon and other foreign writers], is this, that the underwriters are liable for a loss by fire occasioned by the negligence of the master and mariners, provided they insure against barratry, that term being by the French writers used in its larger sense, as comprehending negligence as well as willful misconduct; but inasmuch as the term barratry is used in our policies in a more limited sense, as applicable only to the willful misconduct of the mariners, the authority of Emerigon *300affords no ground for our decision in this case. We must, therefore, endeavor to collect the meaning of the contracting parties from llio terms of the policy itself; and in considering whether the assured, claiming for a loss by fire, is to have that claim disallowed on the ground that the fire was occasioned by the misconduct of the master, we must look to the other terms of the policy, and learn from them whether the assurers in other instances are responsible for the misconduct of the master; and when we find that they make themselves answerable for the willful misconduct of the master in other cases, it is not too much to say that they meant to ^indemnify the assured against fire proceeding from the negligence of the master and mariners. I am, therefore, of opinion in this case that the assured are entitled to recover as for a loss by fire, although that fire was produced' by the negligence of the person having the charge of the ship at the time. It has been argued that in this ease there was a breach of an implied warranty; and that there being no person on board of the vessel at the time of the loss, she was not properly manned, and consequently not sea-worthy. The owner certainly is bound, in the first instance, to provide the ship with a competent crew, but he does not undertake for the conduct of the crew in the subsequent voyage.” Ib. 82, 83. “In Tait v. Levi,” one of the cases cited by Judge Wright, “ there was a breach of the implied warranty, to provide a master of competent skill; I therefore think that the plaintiff, from the facts stated in this case, was entitled to recover, and that there must be a new trial. Abbott and Holroyd, Js., concurred. Ib. 83. Rule absolute for a new trial.

The next case is that of Walker v. Maitland, 5 Barn. & Ald. 171; S. C., 7 Eng. Com. Law, 39. In this case, the plaintiff effected a policy of insurance, in the common printed form, on boats belonging to the ship Britannia, and on produce in said boats, or in any other craft employed in loading such ship. A certain sloop called the Vigilant was employed to bring produce to the Britannia. The sloop was sufficiently manned; and if the mate and other persons had done their duty, the sloop, with the produce thereon, would safely have reached the ship. About eight in the evening the mate lay down to sleep, leaving the charge of the watch to one of the seamen, another having the helm; and soon after the mate went to sleep, the whole of the watch on duty went to sleep also. The sloop being left to herself, soon run ashore and was beat to *301pieces, whereby a part of her loading was lost, and the rest damaged. The loss arose from the misconduct and negligence of those on hoard the sloop. There was also a loss of a hogshead of sugar from the long boat of the ship, the boat having been driven on the breach and wrecked, by the mismanagement of those on hoard thereof, and the hogshead of sugar entirely washed out. If the boat’s crew had done their duty, the boat would safely have reached the ship with the hogshead of sugar; and the loss thereof arose from the negligence of the boat’s crew. Upon these facts, an award was made in favor of the plaintiff. A *rule nisi having been obtained in Hillary term, for setting aside the award, the court, on cause being shown, ordered the award to be stated in a case, for their opinion.

Campbell, for the plaintiff,

relied on Busk v. Royal Exchange Insurance Co., ut supra. Pollock, contra, cited, among others, Tait v. Levi.

Abbott, C. J. “ I am of opinion that the plaintiff is entitled to recover. The subject of this insurance was very special; it was on boats belonging to the ship Britannia, and on produce in said boats, or in any other craft employed in loading the ship, during her stay at St. Kitt’s. No doubt the owner, under this policy, expected to be indemnified against the loss in question. The words of the policy are very large, and although it may appear extraordinary, that the underwriters should undertake to indemnify the assurod against the negligence of the master and crew, which is a species of misconduct on their part, yet it is clear that they do so in the case of barratry, which is the highest species of misconduct of which the master and crew can be guilty. In this ease, the immediate cause of the loss was the violence of the winds and the waves. No decision can be cited, where, in such a case, the underwriters have been held to be excused in consequence of the loss having been remotely occasioned by the negligence of the crew. I am afraid of laying down any such rule; it will introduce an infinite number of questions, as to the quantum of care, which, if used, might have prevented the loss. Suppose, for instance, the master were to send a man to the mast-head, to look out, and he fall asleep, in consequence of which, the vessel runs upon a rockv or is taken by the enemy; in that case, it might be argued, as here, that the loss was imputable to the negligence of one of the crew, and that the underwriters were not liable. These and a *302variety of other such questions would be introduced, in case our opinion were in favor of the underwriters. I can not distinguish this case from that of Busk v. Royal Exchange Insurance Co.; there the immediate cause of the loss was fire, produced by the negligence of one of the crew ; yet the underwriters were held to be liable. Here the winds and waves caused the loss, but they would not have produced that effect, unless there had been neglect on the part of the crew. I think the underwriters are liable for the loss that has arisen in this case.”

Bayley, J. “Here the loss arose from the sloop with the goods ^on board, having been beat to pieces by the force of the winds and waves; and the question in this case is, whether the underwriters are exonerated from the loss, by proving negligence on part of the crew, although the damage was occasioned by the perils of the sea. It is the duty of the owner to have the ship properly equipped, and for that purpose it is necessary that he should provide a competent master and crew, in the first instance; but having done that, he has discharged his duty, and is not responsible for their negligence, as between him and the underwriters. If that were not considered to be the law, the question must have frequently arisen, whether there had been proper care and attention, by the master and mariners. It is now, however, raised almost for the first time. I am of opinion, that in this case the underwriters are liable.”

Holroyd, J. “ The rule of law is, that próxima causa, non remota, spectatur, and here the proximate cause of the loss was the peril of the sea. The question is, whether the underwiters are liable for a loss proceeding directly from a peril of the sea, but remotely from the negligence of the crew. The underwriters engage to be responsible for the barratry of the masters; they therefore engage to be responsible for the highest species of misconduct. This ease can not be put on the ground of the breach of the implied warranty to provide a master and crew of competent skill. It is sufficient if the owners provide a master and crew generally competent. There is no implied warranty that such a crew shall not be guilty of negligence. I therefore agree with the rest of the court, that the rule for setting aside the awards must be discharged.” Rule discharged.

Bishop et al. v. Pentland, 7 Barn. & Cress. 219; S. C., 14 Eng. Com. Jj. 33. Assumpsit on a policy of insurance, on goods war*303ranted free from average, unless general, or that the ship should be stranded.

Bay ley, J. “ There are two questions in this case. First, was the ship stranded ? Secondly, was there such negligence in the master and mariners of the.vessel as to exonerate the underwriters from the loss? The cases of Busk v. Royal Exchange Assurance Company, and Walker?;. Maitland, establish as a principle that the underwriters are liable for a loss, the proximate cause of which is one of the enumerated risks, though the remote cause may be traced to the conduct *of the masters and mariners. Assuming, therefore, that those who had the care of the ship were guilty of negligence, in not providing a rope of sufficient strength to fasten the vessel to the shore, and that their negligence was the remote cause of the loss; still, if the proximate cause was a.peril insured against, the plaintiffs are entitled to recover.”

Holroyd, J. “It is clearly established, that if there be an actual stranding, although it arise from the negligence of the master and mariners, the underwriters are liable.” Postea to the plaintiff.

The same doctrine, that negligence furnishes no defense, was recognized in Smith et al. v. Scott, 4 Taunt. 126, and affirmed in Holdsworth et al. v. Wise et ah, 1 Man. & Ryl. 673; S. 0., 17 Eng. Com. L. 283; Philips v. Headlan, 3 Barn. & Ad. 380; S. C., 22 Eng. Com. L. 104.

Judge Wright, in delivering the opinion of the court in the case of Lodwick ct ah, says, “In all such cases, the insured is held liable in law impliedly to warrant that those persons he employed shall be caroful and diligent, and that everything shall be done to prevent loss within the reach of ordinary human agency.” 5 Ohio, 435. He here assumes that the warranty of sea-worthiness (for that is the only warranty the law implies) continues during the voyage. The authorities already cited, clearly show that this warranty relates only to the time the risk attaches and the vessel sails. In addition, however, we would refer to the note in 17 Eng. Com. L. 286, where Bayley, J., is reported to have said that in the case of Shore v. Bentall (not reported) “ the court Were unanimous in thinking that the implied warranty of sea-worthiness did not extend to the ship being sea-worthy, at any port from which one might depart,” after leaving the port at which the risk attached.

*304The ease of Lodwick et al. goes to the extent of discharging the insurers from all losses, for which a carrier would be liable. Wright J., says “the common law rule determines all those things negligence, which do not proceed from the enemies of the state, or the act of God. These latter are technical terms, the meaning of which is settled by repeated judicial decisions. If proper care and diligence would have avoided the act, it is not excusable as the act of God.” 5 Ohio, 436, 437. If the learned and acute judge intended to lay it down *as law, that all losses, which would charge the carrier would discharge the insurers, the position can not be maintained. A carrier has an insurable interest in the goods committed to his charge. 2 Phillips on Ins. 47; De Forest v. Ful. Fire Ins. Co., 1 Hall’s S. O. (N. Y.) 100. And he may insure generally, without describing his interest as carrier. The case of Crowly et al. v. Cohen, 3 Barn. & Ald. 488; S. C., 23 Eng. Com. D. 125, is conclusive on this point. It was an action on a policy, on goods generally, on board canal-boats. The plaintiffs were carriers, by canal-boats; but that fact did not appear in the policy. One of their boats, on which they were carrying the goods of a third person, was sunk in the canal. The goods were damaged and the plaintiffs, in consequence, were obliged to make compensation to the owners, and were also put to other expenses. At the trial before Lord Tenterden, C. J., a verdict was taken for the plaintiffs, subject to the opinion of the court; it was afterward held by Lord Tenterden, C. J., and Littledale, Park, and Patterson, Js., that the plaintiffs were entitled to recover. In this case the very loss for which the plaintiffs recovered, was a loss for which, as carriers, they were liable, and for which as carriers they had paid.

From these authorities it is clear that the English courts sanction no such doctrine, and sustain no such reasoning as that contained in the opinion of Judge Wright. In that opinion Phillips on Insurance was cited in its support. 2 Phillips on Insurance [published 1834], 82; also Hughes on Insurance, 164,165, chap. 9, may now be referred to to show that negligence furnishes no defense. That opinion can rest only on the New York decisions and the dicta of the judges of the Massachusetts court, called forth by those decisions. The case of Grim v. Phcenix Ins. Co. decides that the insurers are not responsible for the fault, negligence, or mismanagement of the master or mariners, not amounting to bar *305 ratry, and that a loss occasioned by the mismanagement of the master or mariners, does not amount to barratry; and Chancellor Kent lays it down, in accordance with the New York authority, that the ignorance, or inattention of the master, or the mariners, is not one of the perils of the sea, and that therefore the insurers are not liable for a loss occasioned by such ignorance or inattention. 3 Kent’s Com. 299. But, in speaking of Busk v. Royal Assurance Company, in the second edition of his Commentaries, *he says, that this decision is subsequent to that of Grim v. Phoenix Ins. Co. 3 Kent’s Com. 2 ed. 304, and in note g, on same page, he refers to Patapsco Ins. Co. v. Coulter, 3 Pet. S. C. 222, and says, “the decision was according to the English rule, that where the policy covers the risk of barratry, and fire is the proximate cause of the loss, the insurer is liable, and the defense that negligence was the remote cause, is inadmissible. The weight of authority is, therefore, decidedly against the New York decision." 3 Kent Com.’s 304, note g.

But the counsel for the defendants contend that inasmuch as barratry is not one of the enumerated perils, in the present policy, the defense of negligence is admissible, and in support of that defense, the cases of Patapsco Ins. Co. v. Coulter, in 3 Pet., and of Howell v. Cin. Ins. Co., 7 Ohio, 276, are relied upon. We contend, that so far as the question of negligence is concerned, it is immaterial whether barratry be named as one of the perils or not, because barratry does not embrace negligence. It is defined by Chancellor Kent, to be fraudulent conduct on the part of the master .or mariners, to the injury of the owner, and without his consent. It includes every breach of trust committed with dishonest views. 3 Kent’s Com. 305. The definition in Abbot on Shipping, 138, is substantially the same. In the case of Earle v. Rowcraft, 8 East, 126, Lord Ellenborough .went into a full definition of Barratry, and he defines it to be “ a breach of duty in respect to the owners, with criminal intent, or ex maleficio." Judge Story, in his edition of Abbott on Shipping, 138, n. 3, says, that “the doctrine of.Earle v. Rowcraft, has been admitted into our commercial law.” Vide cases there cited. Indeed, the case of Grim v. Phoenix Ins. Co., upon which the defendants rely, declares “ it to be well settled, that an act, to be barratrous, must bo done with & fraudulent intent, or ex maleficio. Barratry is a fraudulent breach of duty, in respect to owners. This is the established doctrine, both in the English courts *306 and our own," per Thompson, J., an'd it was upon the very ground that barratry extended only to eases of fraudulent intent, that the insurers were held not to be liable in that case; barratry being one of the perils insured against, and- the loss having arisen from negligence, and not fraud.

The opinion of Mr. Justice Bayley, in the case already cited, from 2 B. & A. 72, shows that the term, as used by the French ^writers, and extending to fault as well as fraud, has never been adopted by the English law. Vide also 2 Phil on Tns. 181, 182, where it is said, “If the English and American definition of barratry is adopted, and it be limited to cases of fraud, or of negligence and mismanagement, so gross as to bear a fraudulent character, then, the underwriters.may be liable for losses by the perils insured against, occasioned by the carelessness, negligence, mistakes, and imprudence of the master and crew, though barratry is not one of the perils insured against. If underwriters are to be held liable for the.losses in question (i. e., losses by negligence, etc.), their liability would seem to rest upon this ground (i. e.’ that the perils insured against are the proximate cause of the loss), whether the policy covered barratry or not, since it would be going a great length to put a new construction upon the peril of barratry." But the Supreme Court of the United States has decided the precise question now before the court. At its last term, it was decided, that a loss by fire, occasioned by the mere fault, or negligence, of the assured, or his agents or servants, and without fraud or design, is a loss, within the policy, upon the general ground that fire is the proximate cause of the loss, and that, too, although the policy does not cover barratry." Columbia Insurance Co. of Alexandrian. Lawrence, 10-Pet. S. C. 508. The opinion of the-court was delivered by Mr. Justice Story. He says (p. 517) : “ The next question is, whether a loss by fire, occasioned by the fault and negligence of the assured, their servants and agents, but without fraud or design on their part, is a loss for which the underwriters are liable. In regard to marine insurances, this was formerly a question much vexed in English and American courts. But in England the point was completely settled, in Busk v. Royal Exchange Insurance Co., 2 Barn. & Ald. 82, upon the general ground that causa próxima, non remota, spectatur; and therefore, that a loss, whose proximate cause is one of the enumerated risks in the policy, is chargeable to the underwriters; although the remote cause may be traced to *307the negligence of the master and mariners. Although in the policy, in that case, the risk of the barratry was also assumed by the underwriters, yet it is manifest that the opinion of the court procee Is upon the broad and, general ground. The same doctrine was afterward affirmed in Walker v. Maitland, 5 Barn. & Ald. 171, and Bishop v. Pentland, 7 Barn. & Cress. *219, and is now deemed incontrovertibly established. The same doctrine was discussed and adopted by this court, in the case of the Patapsco Insurance Co. v. Coulter, 3 Peters, 222.”

In the case of Howell v. Cincinnati Ins. Co., it appears from the report, (7 Ohio, 277,) that the question was not properly presented for decision by the court in bank. Wood, J., who delivered the opinion of the court, say's, “ By a reference to the minutes of the judge who presided on the trial, it appears that the law was given to the jury, as the counsel for the motion claims that it is.” And after stating the law, as given to the jury, he concludes by saying “that Park, in his Treatise, and Kent, in his Commentaries, and Judge Johnson, in 3 Peters, fully sustain the principio laid down. The case then went to the jury, under circumstances as favorable as the counsel of the defendant required.” Ib. 278. The Supreme Court of the United States have, in the case just referred to, in 10 Peters, put their construction on the case of 3 Peters (cited in the case of Howell v. Cincinnati Ins. Co., and declaring it to be immaterial whether the policy cover barratry or not, proceeded on the general ground, that causa próxima, non remota, specta.tur; and held that a loss, whose proximate cause is one of the enumerated risks, is chargeable to the underwriters although the remote cause may be traced to the fault and negligence of the assured, their servants or agents. Will the defendants say that the losses in the cases in Peters’ Reports were losses by fire, and are, therefore, distinguishable from the ease now belore the court. We apprehend that when the loss arises from any of the perils enumerated in the policy, whether that peril be fire or water, the rule as to negligence must be, and is the same. In the case-of Walker v. Maitland, already cited, in which the loss was occasioned by the boat running ashore, where she was beat to pieces, Abbott, C. J., says, “ 1 can not distinguish this case from Busk v. Royal Assurance Co., there, the immediate cause of the loss was fire, produced by the negligenco of the crew'. Tet the underwriters were held to be liable. Here, the winds and waves caused the loss, but they would not have pro*308dueed that effect, unless there had been neglect on the part of the crew. I think1 that the underwriters are liable for the loss.” 7 Eng. Com. Law, 61. Phillips says: “ There seems*to be no ground to distinguish the case of fire from any other peril covered by the policy.” 2 Phil, on Ins. 182.

Another question was reserved in this case, which depends on the construction of the following clause contained in the policy: “If the boat and cargo should stop, and the interest therein be changed, at or before reaching Louisville, one and one-fourth per cent, of the premium shall be returned.”

The premium paid was two per cent., and amounted to two hundred dollars. The jury, in their verdict, allowed the plaintiffs the one and one-fourth per cent., being the sum of one hundred and twenty-five dollars, the boat and cargo having stopped, and the interest therein having been changed before reaching Louisville, by a sale of the same at Cincinnati.

The defendants stipulate that there shall be a return of a part of the premium in the event of a change of interest; and point out no particular mode by which that change shall be effected. They must, therefore, be understood as engaging to make such return when the change of interest takes place from any cause whatever.

The plaintiffs, therefore, ask judgment for one thousand seven hundred and seventy-nine dollars thirty-four cents, the amount found by the jury, with interest thereon from the 29th day of October, the day on which the verdict was rendered.

H. Stanbery, in reply:

This was a marine policy against the perils of the rivers, upon boat and cargo, from Duncan’s Falls, on the Muskingum, to New Orleans, without any clause against barratry or negligence. . •

I. The principal question reserved for decision is whether the founder of the boat, occasioned by the want of ordinary care in the master or hands, is within the policy.

This identical question was settled by this court, against the assured, in Lodwick v. Kennedy, 5 Ohio, 434, and affirmed on the circuit, by Judges Lane and Wright, in Gazzam v. Ohio Insurance Co., Wright’s S: C. 202, and by this court in Howell v. Cincinnati Insurance Co., 7 Ohio, 276.

The.plaintiffs ask the court to reconsider the question, and *309claim that these decisions establish a rule contrary to the English and American cases, especially to some of the latter cases in both countries, which were not before the court when these decisions were had. These late cases are Busk v. Royal Exchange Insurance Co., 2 Barn. & Ald. 72 ; Walker v. *Maitland, 5 Barn. & Ald. 171; Bishop et al. v. Pentland, 7 Barn. & Cress. 319, in England; and Columbia Insurance Co. v. Lawrence, 10 Pet. 508, in the United States.

The two first-mentioned cases were in fact before this court in the case of Gazzam v. Ohio Insurance Co., above referred to. They did not affect the decision of the case, for it turned upon a known distinction first recognized by this court in Lodwick v. Kennedy, and since adhered to, which is this: That where a marine policy contains no insurance against the barratry of the master and crew, it does not cover their negligence.

The counsel for the defendant have found no case, English or American, which establishes a contrary doctrine. No case is cited in which the policy does .not contain the barratrous clause; and in those which are cited, it will be seen that the liability for mere negligence results impliedly'from the undertaking against barratry; and we are left to conclude, that if the undertaking was not assumed by the underwriter he would not be held liable.

In Bush v. Royal Exchange Insurance Co., 2 Barn. & Ald. 72, there was a clause against barratry. Bayley, J., reviews the doctrine of insurance of the civil law, and says, “The fair result of all these authorities is this: that the underwriters were liable for a loss by fire occasioned by the negligence of master and mariners, provided they insure against barrat^ — that term being by the French writers used in its larger sense, and comprehending negligence as well as willful misconduct; but inasmuch as the term barratry is used in our policies in a more limited sense, as applying only to the willful misconduct of the master and mariners, the authority of Emerigon affords no ground for our decision in this case. We must, therefore, endeavor to collect the meaning of the contracting parties from the terms of the policy itself, and in considering whether the assured, claiming for a loss by fire, is to have that claim disallowed on the ground that the fire was occasioned by the misconduct of the master, we must look to the other terms of the policy, and determine from them whether the assurers, in other instances, are responsible for the misconduct of *310the master; and when we find that they make themselves answerable for the willful misconduct of the master, in other cases, it is not too1 much to say that they meant to indemnify the assured against fire proceeding from the negligence of the master and mariners. I am, therefore, of the opinion, in this case, that the assured are entitled to recover,” etc.

Here the liability for negligence is deduced exclusively from the' liability for barratry; and certainly, where the insurers expressly agree to answer for willful misconduct, it is reasonable to infer that-they intended to be answerable for mere negligence.

In Walker v. Maitland, 5 Barn. & Ald. 171, the same liability for negligence is made to result from the clause against barratry. Abbott, C. J. “No doubt the owner under this policy expected tobe indemnified against the loss in question. The words of the policy are very large, and although it may appear very extraordinary that the underwriters should undertake to indemnify the assured against the negligence of the master and crew, which is a species, of misconduct on their part, yet it is clear that they do so in the-case of barratry, which is the highest species of misconduct,” etc.

Holroyd, J. “ The underwriters engage to be responsible for the barratry of the master, they therefore engage to be responsible for the highest species of misconduct.”

In Bishop et al. v. Pentland, 7 Barn. & Cress. 219, the policy is* not set out. The ship was lost through carelessness of the mate, by stranding, which was one of the specified risks. Upon the authority of the two preceding cases the insurer was held liable. We are-left to presume of this policy, that it contained the clause against barratry, which is common to the English marine policies.

These are all the English cases, cited by the plaintiff’s counsel, that bear upon this question. The only American case relied upon, is the Columbia Insurance Company v. Lawrence, 10 Pet. 508.

That was an action upon a land policy against fire, so that the question in this ease could not arise.

At page 517, Mr. Justice Story, in considering the point whether negligence of the assured or their servants, would excuse the underwriters, refers, in passing to the same question upon marine policies. He speaks of it as having once been a vexed question, but as settled in England in the case of Busk v. Royal Exchange Company, above quoted, and he says that, although the clause against barratry was in the policy, that it was yet “ manifest that *311the opinion of the court proceeded *upon the broad and .general ground and further, that the case of the Patapsco Company v. Coulter, 3 Pet. 222, adopted the same ground.

With all deference to the learned judge, that is not manifest. If •we allow the court in Busk v. Royal Exchange Company to speak for themselves, we find that the responsibility for negligence is made to flow from the undertaking against barratry.

The case of the Patapsco Insurance Company v. Coulter, referred to by Mr. Justice Story, came before the court upon error, in the instructions given by the circuit court. There was an insurance against barratry, and the defense was the negligence of the captain. Mr. Justice Johnson, in delivering the opinion of the court, says, •“As to the refusal to instruct the jury that their verdict must be for the insurers, if they believe the loss proceeded from the carelessness or negligence of the captain, it is obvious, since barratry is insured against, that the court must not be held to have affirmed that fire proceeding from negligence, was a loss within the policy, independently of the risk of barratry, but that negligence was no defense where barratry was insured against.” Again, at page 234, he says, “ It must be remembered that the general question” (that is of liability for negligence) “ where there is no insurance against barratry, need not be here considered.”

Surely, Mr. Justice Story is mistaken in supposing that in this case the court adopted the broad and general ground of liability for negligence, without reference to the barratry clause, when it is evident they more than once, in the opinion, carefully distinguish the case from that of a policy not containing that clause.

At page 233 of the same case, Mr. Justice Johnson, referring to Busk v. Royal Exchange Company, speaks of it as having affirmed the principle, “ that where an insurance is against barratry, a loss arising from fire originating in negligence shall be borne by the underwriters.” So that his understanding of that case was that the decision, instead of proceeding upon the supposed broad and general ground, was predicated upon the barratry clause.

In the case of Andrews, etc. v. Essex Fire Company, 3 Mason, 26, which came before Judge Story in 1822, he uses this language, “ Whether in any case the underwriters are liable for a loss by any of the perils of the policy, the remote cause of which .is the nogligencé and misconduct of *the master and mariners, not amounting to barratry, is a vexed question, upon which opposite *312•opinions have- been expressed by very distinguished courts. In England the point has recently received, after a solemn discussion, a decision in the affirmative, 2 Barn. & Aid. 72, though it is not difficult to perceive that the former opinions inclined the other way. In New York the point has been unequivocally settled in the negative ; and that appears to be the leading opinion also in Massachusetts. The foreign jurists generally concur in exempting the underwriters from losses by the fault of the master, unless that risk is expressly assumed. In this diversity of doctrine I desire to suspend my own judgment until the question is absolutely necessary to be decided.” Certainly, upon a question of so much difficulty in the mind of the learned judge, it would be unjust to him, to impute to a dictum subsequently thrown out where it was not necessary to decide the question, the authoritative force of a deliberate opinion.

The New York and Massachusetts cases to which the court have ••been so often referred heretofore, are upon policies containing the clause against barratry. Even with that clause, they excuse the underwriter for liability from negligence. In that they are at variance with the English cases, and it is in reference to the conflict of opinion on that point, that it is said, in the note to the last edition of Rent’s Com., vol. 3, p. 304, note g, that the weight .of authority is against the New York decision.

Inasmuch, however, as the undertaking against the barratry of the master and crew has not been assumed by the defendants in the case at bar, we are not put to a choice between nicely balanced opinions. The defendants have in no shape made themselves responsible for the misconduct, willful or negligent, of the agents and servants of these plaintiffs — there is no such stipulation in their contract. Is it right to put it in by judicial construction ? The argument in favor of such construction is this: The perils of the river are insured against. If a boat is run upon an island by the gross negligence of the hands, the current of the river is the causa próxima, the negligence of the crew the causa remota; and because the proximate and not the remote cause is regarded, the insurers are liable. If that rule is sensible, how does it come that it does not apply in case of willful misconduct, without insurance against barratry. If the master purposely run the boat on the ^island, it will not be pretended that the insurers are bound ; and yet the causa próxima is the same as in the case of *313negligence. The perils insured against on our western rivers are quite various enough without superadding to them a liability for the want of ordinary care in the master and hands. In sea risks this liability may be taken with some assurance that gross negligence will not occur; for the law of self-preservation will prevent it — but in the navigation of our waters a wreck is rarely attended with the loss of life.

The case of Lodwiek et al. v. Ohio Insurance Company was> decided more than three years before this policy was executed, and had been twice affirmed by this court. The rule so settled had become the law of western insurance, and upon the faith of that rule, with an unhesitating reliance upon its stability, this policy was-drawn so as to come within it. If it had been supposed that by any possibility the risk of negligence was to, be borne by the company, we may suppose that a much higher premium would have-been required.

It is asking very much of a court to change a decision so im-portant in its consequences — so repeatedly affirmed — so generally, known and relied up on; and that, too, upon nothing stronger than-the dictum of a judge whose opinion has hung in doubt upon the very question, and who has once entered a caveat against his own-judgment upon it, until constrained to give it in a proper case.

2. If the court incline against the new trial, there is then a. question as to whether the premium of one and one-fourth or two per cent, shall be allowed. The voyage was at and from Duncan’s Falls to New Orleans, at the premium of two per cent., with a provision, “ if the boat and cargo should stop, and the interest therein be-changed, at or before reaching Louisville, one and one-fourth percent. of the premium shall be returned.” The stoppage and change-of interest here provided for, are obviously very different from a-wreck and loss of property. A voluntary sale working a cessation of risk without loss to the insurers is clearly intended. To suppose- that it was the intention of this clause to provide for a return of part of the premium in the event of loss above Louisville, or, in other words, that the insurers should stipulate to pay a-premium for an early loss, is to force the language used beyond its true meaning, and to impute to this company the want of ordinary discretion..