1851.

MONTOYA and Others v. THE LONDON ASSURANCE COMPANY.

COVENANT on two sea policies of insurance on produce or goods. The declaration stated an average loss on tobacco by perils of the seas. The defendants pleaded (by statute) that they had not broken their covenants; and issue having been joined thereon, by the consent of the parties, and by a Judge's order, the following case (in substance) was stated for the opinion of this Court.

The plaintiffs, who are merchants carrying on business in London, on the 9th of January, 1849, effected the first of the policies in the declaration mentioned with the defendants, on tobacco and hides (inter alia) from New Granada to ports of discharge in the United Kingdom, the plaintiffs engaging to pay averages on tobacco. On the 19th of February, 1849, the plaintiffs effected a similar policy, the second policy in the declaration mentioned, with the defendants on tobacco and hides. The produce as declared was duly shipped on board the vessel, which sailed with her cargo from St. Martha in New Granada on her voyage towards her port of discharge; and whilst proceeding on her Voyage encountered much bad weather, and was struck by heavy seas, and shipped large quantities of water, by reason whereof the produce so shipped sustained damage as hereafter mentioned. In April, 1849, the vessel arrived at her port of discharge; and it was then discovered that some part of the cargo was considerably damaged from the causes above mentioned, and on the opening of the hold a suffocating stench and vapour or gas issued from it. The cargo had consisted principally of sugar, hides, and tobacco. The tobacco had been shipped according to the usual course adopted in exporting tobacco from ports in New Granada, in serons a Spanish term signifying dry hide packages. A very large part of the cargo of hides was in an absolute

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state of rottenness and putridity from sea damage, and a great number of the serons in which the tobacco was packed were also rotten, and greatly damaged by sea-water. A ASSURANCE CO. large portion of the cargo of tobacco was rendered totally worthless. The rest was greatly deteriorated in consequence of a part of the cargo having been excessively damaged by sea-water, which caused fermentation, and strongly impregnated more or less the whole of the cargo with a fœtid fla

vour.

The plaintiffs claimed in this action in respect only of the damage sustained by the tobacco part of the cargo insured, which was not, nor were the serons, immediately in contact with nor directly damaged by sea-water, but which was damaged and deteriorated in the manner described, that is to say, was damaged and deteriorated in flavour only, and not otherwise, by the foetid odour caused by and proceeding from the fermentation and putridity of that part of the cargo which had been directly damaged and putrified by the sea-water.

The Court were to be at liberty to draw any such inference from the facts as a jury would be at liberty to draw.

The question for the opinion of the Court was, whether the defendants were liable for the damage aforesaid; and if the Court should be of opinion that they were, judgment was to be entered for the plaintiffs for 6301.; but if the Court should be of opinion that the defendants were not liable, judgment of nolle prosequi, or such judgment as the Court might think fit, was to be entered.

Sir F. Thesiger (Tomlinson with him) for the plaintiffs.— The question is, whether the damage caused to the tobacco is a loss occasioned by the perils of the seas. The plaintiffs do not dispute the application of Lord Bacon's maxim "in jure causa proxima non remota spectatur" (a); for

(a) Lord Bacon's Maxims, p. 1.

it is admitted that they must shew that such perils were the proximate cause of the loss. The goods in question were all properly stowed and packed, and the action of the sea-water upon the hides effected the damage. It is immaterial whether the cause acts through a medium or directly, provided the loss be occasioned by the perils of the seas. The question is therefore resolved into this:What is the cause of the loss? Suppose the lower part of this cargo had consisted of sponge, and the upper part of packages of tobacco, and that sea-water had been drawn upwards by capillary attraction through the sponge to the tobacco, by which the latter had been injured: it could not be contended that in such a case the loss would not be occasioned by the perils of the seas. Here the hides became putrescent by the operation of the sea-water. The two cases are precisely similar. The authorities upon which the defendants may rely will be found to have been decided on the ground that the particular loss was not referable to the perils of the seas. In Green v. Elmslie (a), where the ship had been driven by stress of weather on an enemy's coast, and was there captured, Lord Kenyon, C. J., held, that the loss was clearly by capture, and not by perils of the sea; 'for," said the learned Chief Justice, "had the ship been driven on any other coast but that of an enemy, she would have been in perfect safety." Livie v. Janson (b) was an action on a policy on ship and goods, warranted free from American condemnation. The ship and goods were damaged by the perils of the seas, and were afterwards seized by the American government and condemned. It was there held, that the total loss by subsequent seizure and condemnation took away from the assured the right to recover in respect to the previous partial loss by sea damage; for that the loss there was clearly occasioned by the capture and condemnation. "If, for

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case.

instance," said Lord Ellenborough, C. J., in that case, a ship meet with sea damage, which checks her rate of sailing, so that she is taken by an enemy from whom she would ASSURANCE CO. otherwise have escaped, though she would have arrived safe but for the sea damage, the loss is to be ascribed to the capture and not to the sea damage; and this upon the principle that causa proxima non remota spectatur." In Hahn v. Corbett (a), the ship was stranded on a shore within a few miles of the port of destination, and was thereby disabled from proceeding, and was lost; but whilst she was lying in that helpless condition she and her cargo were captured by the enemy; and it was held that the loss of the cargo was by the perils of the seas, inasmuch as the goods were lost at the time the ship was lost, and that what happened afterwards did not affect the Other cases might be referred to, subject to the same observations, where it has been held that the true cause of the loss could not be attributed to the perils of the seas. Thus, a mortality in a cargo of cattle arising from a want of food owing to the unavoidable prolongation of the voyage in consequence of bad and stormy weather, has been held not to be a loss by the perils of the seas: Tatham v. Hodgson (b). So in Gregson v. Gilbert (c), where a number of cattle were thrown overboard to save the rest, in consequence of a scarcity of provisions occasioned by the gross ignorance of the captain in mistaking his course and thus protracting the voyage, this was held not to be a loss by the perils of the seas; but there the act of man interposed. De Vaux v. Salvador (d) may perhaps be relied upon by the defendants; but that case is distinguishable from the present, as the loss there clearly was not comprehended in the terms of the policy. So loss caused by a vessel being fired into by

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a hostile vessel does not fall within the present description of loss: Cullen v. Butler (a). This perhaps may rather be called a loss arising upon the seas than a loss occasioned by the perils of the seas. In Lawrence v. Aberdein (b), a ASSURANCE Co. cargo of live stock was so bruised and lacerated by the violent rolling and pitching of the vessel, that some of the cattle died in consequence of the injuries they had so received; and in Gabay v. Lloyd (c) several horses, in consequence of the labouring of the vessel, broke the slings that supported them and the partitions which separated them, and kicked each other so severely, that in consequence of the injuries thus sustained they died during the continuance of the storm. The Courts held, in each of these cases, that the loss was by the perils of the seas. The plaintiffs are not precluded from recovering for the loss of goods which the sea-water may not have actually touched. This subject is treated of in 1 Phillipps on Insurance, p. 638, edit. 1840, and in 3 Kent's Comm. p. 308, n. a, 4th edit.

Peacock contrà.-The proximate cause of the loss is to be looked to, and the maxim to which reference has been made has a strict application to the present case. It has been contended that, provided the loss be occasioned by perils of the seas, it is altogether immaterial whether the cause be immediate or not. [Parke, B-Suppose, in the present case, that instead of the cargo consisting of a layer of hides, the whole cargo had consisted of several quarters of corn, and that the lower portion had become. damaged by the action of salt water, and had undergone the process of fermentation, and had, by the evolution of gas, totally detroyed the upper portion of the cargo, would not such a damage have fallen within the terms of this po

(a) 5 M & Sel. 461. (b) 5 B. & Ald. 107.

(c) 3 B. & C. 793.