Co., a voyage had been broken up, and the cargo sold. It was charged that the master made the sale in a method knowingly contrary to his best judgment, and to the injury of the parties interested. The court held that this, if so, would constitute barratry.

As barratry is something done to the prejudice of the owners, it follows that the master who is sole owner cannot commit barratry, as a man can hardly cheat himself; but, if he is part owner, he can be guilty of barratry towards his other owners."

SAME THEFTS

33. Thefts in a marine policy, according to the better opinion, cover thefts from without the ship, and do not cover thefts by the crew.

This is the decision according to the great preponderance of English authority. Parsons, in his Marine Insurance, states that the weight of American authority would make the insurers liable for larceny by the crew. His citations, however, hardly seem strong enough to meet the reasoning of the English cases.

112 U. S. 506, 5 Sup. Ct. 289, 28 L. Ed. 809. In Compania de Navigacion La Flecha v. Brauer, 168 U. S. 118, 18 Sup. Ct. 12, 42 L. Ed. 398, Mr. Justice Gray held that "there was no barratry, because there was neither intentional fraud, nor breach of trust, nor willful violation of law, one of which, at least, is necessary to constitute barratry."

• Marcardier v. Chesapeake Ins. Co., 8 Cranch, 39, 3 L. Ed. 481; Jones v. Nicholson, 10 Ex. 28.

§ 33. 7 Taylor v. Steamship Co., L. R. 9 Q. B. 546. This case also holds that thefts are not covered by a clause insuring against "damage to goods."

81 Pars. Mar. Ins. 563-566, and notes.

SAME-ALL OTHER PERILS

34. "All other perils," etc., mean all other perils of the same general character.

These words, according to the construction placed upon them by the courts under the rule of ejusdem generis, are intended as a general safeguard to cover losses similar to those guarded against by the special enumeration, and not in as sweeping a sense as the language would mean.

The English Marine Insurance Act, 1906 (under the rules of construction annexed to the first schedule of section 30), expresses this as "only perils, similar in kind to the perils specifically mentioned in the policy."

But "all risks by land and water" cover all risks whatsoever."

The leading case as to the meaning of these words is THAMES & M. MARINE INS. CO. v. HAMILTON,10 wherein Lord Bramwell, in his opinion, in reference to the meaning of these words, uses the following language: "Definitions are most difficult, but Lord Ellenborough's seems right: 'All cases of marine damage of the like kind. with those specially enumerated, and occasioned by similar causes.' I have had given to me the following definition or description of what would be included in the general words: 'Every accidental circumstance not the result of ordinary wear and tear, delay, or of the act of the assured, happening in the course of the navigation of the ship, and incidental to the navigation, and causing loss to the subject-matter of insurance.' Probably a severe criticism. might detect some faults in this. There are few definitions. in which that could not be done. I think the definition of Lopes, L. J., in 'Pandorf v. Hamilton [16 Q. B. D. 629], very good: 'In a seaworthy ship, damage of goods caused § 34.

Schloss v. Stevens, [1906] 2 K. B. 665.

10 12 A. C. 484.

by the action of the sea during transit, not attributable to the fault of anybody,' is a damage from a peril of the sea. I have thought that the following might suffice: 'All perils, losses, and misfortunes of a marine character, or of a character incident to a ship as such.'" And Lord Herschell, in his opinion, discusses the cases which had previously passed upon them. The case was an insurance under a time policy, in which, under English law, as previously stated, there is no implied warranty. The donkey engine was being used pumping water into the main boilers, but, owing to the fact that a valve was closed which ought to have been left open, the water was forced into and split open the air chamber of the donkey pump. The court held that, whether the closing of the valve was accidental or due to the negligence of the engineer, it was not such an accident as was covered either by the words "perils of the sea," or by the general saving clause above quoted.

PROXIMATE CAUSE OF LOSS

35. Where an injury is due to more than one cause, the efficient predominating cause nearest the loss is con'sidered the proximate cause, though later causes incidental thereto are also set in motion. Any later cause, to supersede the first, must be an independent cause.

This definition is the result of the decisions of the United States Supreme Court in HOWARD FIRE INS. CO. v. NORWICH & N. Y. TRANSP. CO.11 and the G. R. Booth, 12 where the subject is thoroughly discussed.

The question what is the proximate and what the re mote cause gives rise to some of the most difficult points in marine insurance law. The only general rule is that

§ 35. 11 12 Wall. 194, 20 L. Ed. 378.

12 171 U. S. 450, 19 Sup. Ct. 9, 43 L. Ed. 234.

laid down above, and, like most general rules, its difficulties lie in its application.

In IONIDES v. UNIVERSAL MARINE INS. CO.,13 a vessel loaded with coffee was insured under the ordinary policy, which contained a warranty "free from all consequences of hostilities." It was during the Civil War, and the Confederates had extinguished Hatteras Light as a means of embarrassing the navigation of the Federal ships. The captain, on his way from New Orleans to New York, supposing that he had passed Cape Hatteras, when he had not, changed his course in such a way that his vessel went ashore. The Confederate authorities took him and his crew as prisoners. Federal salvors came down, and saved part of the coffee, and might have saved more but for the interference of Confederate troops. In a day or two the vessel was lost. The court held, under these circumstances, that, as to that part of the coffee which remained aboard, it was lost by a peril of the sea, that being the proximate cause, and not the act of the Confederates in extinguishing the light; but that as to the cargo which was saved, and as to that part which could have been saved but for the interference of the Confederate authorities, the proximate cause was the consequence of hostilities, and that as to that part the underwriters were not liable.

In Mercantile S. S. Co. v. Tyser," the insurance was on

13 14 C. B. N. S. (108 E. C. L.) 259, 143 Reprint, 445. During the World War, it has been customary to insure ships, whether through government insurance or otherwise, against war risks which would not be covered by the ordinary provisions of a marine policy. The same question has also arisen in the construction of similar provisions in charter partics, and it has been necessary in many cases to decide whether a given loss falls upon the ordinary insurance policy or the war policy, in other words, whether it was a war risk or a sea risk. See Lobitos Oil Fields v. Admiralty Commissioners, 34 T. L. R. 466; British & Foreign S. S. Co. v. The King, 34

147 Q. B. D. 73. A somewhat analogous case is Williams v. Canton Ins. Co., [1901] A. C. 462.

HUGHES,ADM.(2D ED.)—6

freight during a certain voyage. The charter party contained a clause that the charterers might cancel the charter party if the vessel did not arrive by the 1st of September. The ship started from England on the 7th of August, but her machinery broke down, and she had to put back. The time lost caused her to arrive in New York after the 1st of September, and the charterers canceled the charter party. The court held that the proximate cause of the loss of freight was not the breaking down of the machinery, but the option exercised by the charterers of canceling the charter party, and that, therefore, the underwriters were not liable.

In Dole v. New England Mut. Marine Ins. Co.,15 a vessel was captured by the Confederate cruiser Sumter. As she could not be brought into any port of condemnation, her captors set her on fire and destroyed her. The policy contained a clause warranted free from capture. It was argued, inter alia, that the proximate cause of the loss was the fire, and not the capture. Justice Clifford held, however, that the proximate cause was the capture and the acts of the captors, and that the underwriters were not liable.

HOWARD FIRE INS. CO. v. NORWICH & N. Y. TRANSP. CO.16 arose under a fire insurance policy. The steamer Norwich collided with a schooner, injuring her own hull below the water line. She rapidly began to fill, and 10 or 15 minutes after the collision the water reached the fire of the furnace, and the steam thereby caused blew the fire around, and set fire to the woodwork of the boat. In consequence, she burned until she sank in deep water. The injury from the collision alone would not have made

T. L. R. 546, [1918] 2 K. B. 879. British India Steam Nav. Co. v. Green, 35 T. L. R. 269; Britain Steamship Co. v. The King, Id. 271; Ard Coasters, Ltd., v. The King, Id. 604.

15 2 Cliff. 394, Fed. Cas. No. 3,966.

16 12 Wall. 194, 20 L. Ed. 378.