Mannheim Ins. Co. v. Charles Clarke Co. , 157 S.W. 291 ( 1913 )

I cannot agree with my Associates in the conclusion that the loss sustained by the appellee, for recovery of which this suit was brought, was not covered by the insurance policy sued on and therefore appellee is not entitled to recover such loss.

The question is whether the sinking of appellee's boat in the circumstances alleged in the petition and shown by the evidence was a "peril of the sea," as that term was used and understood by the parties in the policy of insurance.

The opinion of the majority quotes a number of definitions of the term "perils of the sea," and assuming that these definitions are full, accurate, and exclusive, holds that the sinking of the appellee's boat was not due to a peril of the sea because it was proximately caused by the negligence of the watchman in leaving its sea valve open.

The evidence is sufficient to sustain the finding of the jury that the sudden lurching of the boat, by which the water was caused to rush over its side and into the engine and firerooms in such quantities as to cause it to sink, was due to its sudden slipping from its contact with the Alarm, the boat by which it was moored, as alleged in the petition. The opinion of the majority does not question the sufficiency of the evidence to sustain this finding further than is involved in the holding that the negligence of the watchman in leaving open the sea valve was the proximate cause of the accident. I do not think the question of whether the negligence of the watchman was a proximate cause or the proximate cause of the sinking of the boat is material in determining whether or not such sinking was a peril of the sea. No rule is better settled by the decisions of the highest courts of England and America than that the insurer is not released from liability for loss due to a peril of the sea by reason of the fact that such peril was occasioned or proximately caused by the negligence of the master or crew unless the policy of insurance expressly excepts a loss so caused.

In Phœnix Ins. Co. v. E. W. T. Trans. Co., 117 U.S. 312, 6 Sup.Ct. 1176, 29 L.Ed. 873, the Supreme Court of the United States say: "It is conclusively settled, in this country and in England, that a policy of insurance, taken out by the owner of a ship or goods, covers a loss by perils of the sea or other perils insured against, although occasioned by the negligence of the master or crew."

The former rule, and the reasons which induced the courts to adopt the one now uniformly followed, is thus stated by the Supreme Court of Massachusetts in the case of William Nelson et al. v. Suffolk Ins. Co., 8 Cush. (Mass.) 477, 54 Am.Dec. 776: "It seems to have been formerly held, that underwriters were not responsible for losses which happened in consequence of the negligence of the master or crew in the navigation of the ship. This doctrine would go far to deprive the insured of the benefit and protection of this policy, without any fault of his own, and would greatly lessen, if it did not destroy, the usefulness of insurance. Some fault or negligence on the part of the master or mariners enters into almost every case of a loss or damage of a vessel at sea. The danger from such fault or negligence is one of the dangers which the insured has most reason to apprehend, and against which he most needs and may reasonably expect protection. * * * The great principle, now well established, is that if the vessel, the master, officers, crew, and equipments are competent and sufficient at the commencement of the voyage, the assured has done all that he contracted to do; he did not guaranty the faithfulness and vigilance of the master and crew, and he is not responsible for their negligence, but for the conduct of the master and mariners, in the practical navigation and management of the vessel, after the commencement of the voyage, the insurers are responsible, provided the actual loss arise from one of the perils insured against, though such peril may have occurred in consequence of the negligence or carelessness of the master and crew."

Any number of decisions could be cited in support of this rule.

While I have found no case in which the accidental sinking of a boat in circumstances exactly similar to those which attended the sinking of the Seminole was held to be a peril of the sea, it is well settled that it is not necessary that the extraordinary action of the water which caused the loss should be due to natural causes in order to make such loss a peril of the sea.

In Crescent Ins. Co. v. Vicksburg, etc., Packet Co., 69 Miss. 208,13 So. 254, 30 Am.St.Rep. 537, Chief Justice Campbell for the court says: "The injury to the cotton by water of the river, into which it was thrown by a mishap to the boat, was a peril of the river within the terms of the policy; and, if it be true that the careening of the boat resulted from negligence in unloading, the insurer is liable. Redman v. Wilson, 14 Mees. W. 476. The immediate cause of injury to the cotton was water of the river. That it got into the river because of some carelessness or unskillfulness of those engaged in unloading does not relieve the insurer from liability. To relieve from liability because of acts of the master or crew, there must be want of good faith and honesty of purpose. 1 Phil. Ins. 8 1049' May, Ins. § 408; Fland. Ins. 477; 14 Am. Eng. Ency. of Law, p. 383, note 2; and numerous cases. On this subject there is no difference between marine and other insurance. Whatever diversity of view on this question once existed, it is now firmly settled in England and America, as stated above. `Where a peril of the sea is the proximate cause of a loss, the negligence which caused that peril is not inquired into.' Insurance Co. v. Sherwood, 14 How. 361 [14 L.Ed. 452]." In above case the careening of the boat, which threw the cotton into the river, resulted from negligence in unloading.

In Davidson v. Burnand (an English case) L. R. 4, C. P. 117 cited in Phoenix Ins. Co. v. EI. W. Trans. Co., 117 U.S. 312, 6 Sup.Ct. 1176, 29 L.Ed. 879; 1 Sans. Dig. Ins. 1023, 26 Cyc. 652, the facts were that while the ship was loading, the increased weight of cargo carried the discharge pipe below the surface of the water, which passed down the pipe under the valve through the cocks, negligently left open, and flowed into the hold, injuring the plaintiff's goods. This was held a loss by a peril of the sea.

In Pa. Ry. v. Manheim Ins. Co. (C. C.) 56 F. 301, the loss was caused by the careening of the lighter on which the goods were placed after delivery by a railroad company to be loaded on a ship, such careening being caused by the settling of the lighter upon a dangerous log. Held, that the loss was a sea peril and was covered by the policy, and it was immaterial between the parties whether the original grounding and settling on the log was or was not by reason of some one's negligence.

The entrance of sea water into water-tight compartments through an open deadlight, or through leaks caused by rats, has been held to be perils of the sea. 26 Cyc. 1024; Starbuck v. Phoenix Ins. Co., 19 A.D. 139,45 N.Y.S. 995.

Seaman v. Ins. Co. (C. C.) 21 F. 778, was a case in which the insured vessel, while making the trip specified in the policy, accidentally struck the river bank in attempting to make a landing, and was so injured that she sank and became a total loss. Mr. Justice Brewer held that the injury "must be one of the perils of navigation."

In 3 Cooley's Ins. 2883, are cited many cases where a grounding of a vessel in a harbor was deemed a peril of the sea, also injury occasioned by a leakage, the leak being caused by rats.

In Hutchins v. Ford, 82 Me. 370, 19 A. 834, it is said: "The law is now well settled that disaster, caused by a peril insured against, as stranding or collision, resulting from negligence of the master or mariners, is covered by a policy of marine insurance." Many cases are there cited.

1 Abbott's Merchants Ships (an English work) 615, 616, reviews the English cases holding that a peril of the sea is not confined to cases of extraordinary violence of winds or waves. He quotes Lord Herschell: "Now I quite agree that in the case of a marine policy the causa proxima alone is considered. If that which immediately caused the loss was a peril of the sea, it matters not how it was induced, even if it were by the negligence of those navigating the vessel. It is equally clear that in the case of a bill of lading you may sometimes look behind the immediate cause, and the shipowner is not protected by the exception of perils of the sea in every case in which he would be entitled to recover on his policy, on the ground that there has been a loss by such perils." On the same page Lord Herschell quotes from Justice Willes: "It is only necessary to see whether the loss comes within the terms of the contract, and is caused by perils of the sea; the fact that the loss is partly caused by things not distinctly perils of the sea does not prevent it coming within the contract. In the case of a bill of lading it is different, because there the contract is to carry with reasonable care, unless prevented by the excepted perils."

In 1 Abbott's Merchants Ships, 617, the case of Hamilton v. Pandorf, 12 App.Cas. 518, decided by the House of Lords, is referred to. It was an action for damage to cargo by sea water, which had been let into a ship by rats gnawing a hole through a lead pipe. The bill of lading excepted dangers and accidents of the sea. Lord Halsbury, L. C. said: "One of the dangers which both parties to the contract would have in their minds would, I think, be the possibility of the water getting into the vessel from the sea upon which the vessel was to sail in accomplishing her voyage. It would not necessarily be by a storm — the parties have not so limited the language of the contract — it might be by striking on a rock, or by excessive heat, so as to open some of the upper timbers; these, and many more, contingencies that might be suggested would let the sea in, but what the parties, I think, contemplated was that any accident (not wear and tear, or natural decay) should do damage by letting the sea into the vessel, that that should be one of the things contemplated by the contract."

In Potter v. Ins. Co., 19 Fed.Cas. 1186, 2 Sumn. 197 (No. 11,339) Justice Story held that a ship, which was sound and lying at a wharf, grounded and began to leak, as the surveyors reported, by lying badly on the ground. This was held within the perils of the sea, for which the underwriters were liable. 19 A. Eng. 1937, 1939.

I do not think these cases can be distinguished on principle from the instant case.

If we get from the shadow of a precedent, which consists only in the formal repetition of a technical definition of the term "perils of the sea," that in the very cases in which the courts have seemingly recognized its accuracy has been "more honored in its breach than in its observance," and view the question in the light of reason, fairness, and justice, I think the injury to the Seminole should be held to have been caused by a peril of the sea. It cannot be denied that the sinking of a boat by the accidental inrush or overflow of the waters or waves of the sea is a peril of the sea if those words are given their natural and ordinary meaning. It is certainly a danger peculiar to the sea, a casualty that could not happen on land, and a danger or peril ever present in the navigation of water.

When the plaintiff in this case obtained and paid for a policy insuring it against loss by "perils of the sea," it is reasonable to assume that it understood such terms in their broadest sense as covering any loss peculiarly incident to the navigation of water, whether proximately caused by the negligence of the crew or not, and it is fair to presume that the defendant intended that the plaintiff should so understand and interpret the policy. If this is true, upon what principle of reason or justice can defendant be relieved of its obligation of indemnity on the ground that the loss was proximately caused by the negligence of the watchman in leaving open the sea valve?

My conclusion is that the motion for rehearing should be granted, and the judgment of the court below affirmed.