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1851.

ΜΟΝΤΟΥΛ
V.
LONDON

licy?] If that part of the cargo which was not injured by the sea-water, but by the decomposition of the lower stratum of corn, could be distinguished from the part ASSURANCE Co. which was injured by the sea-water, the underwriter would not incur any liability with respect to the former portion. This loss is not occasioned directly by the action of the seawater, but by the effluvium arising from the hides. Suppose a ship were laden with hay, and the cargo were insured against fire, and the action of the water upon the hay occasioned its combustion, it could not be contended that the underwriter would not be liable; but suppose loss by fire were excepted from the policy, the loss could not be considered as caused by the perils of the seas. If a fever among a cargo of cattle, insured against the perils of the seas, were to be caused by the effluvium arising from the lower part of the vessel, in consequence of the decomposition of some other portion of the cargo by the introduction of sea-water into the vessel, that would not be a loss by the perils of the seas. [Platt, B.-Even admitting that this damage might have been prevented if the captain of the vessel had landed the cargo at some intermediate port and had caused the hides to be dried, does not the loss equally arise from the perils of the seas, when, instead of adopting that course, the captain proceeds on his voyage?] Suppose the cargo had been insured by two time policies, the second to commence upon the expiration of the first, and that the injurious effects had been produced upon the hides alone during the continuance of the first policy, and up to the end of that period the tobacco had remained uninjured, which of the two sets of underwriters would have been liable for the loss of the tobacco? In the cases relied upon by the plaintiffs, the perils of the seas were the direct cause of the loss. If the direct and immediate cause be not taken as the real cause of the loss, it is difficult to say where the line is to

1851.

ΜΟΝΤΟΥ Α

V.

LONDON

be drawn. In Lockyer v. Offley (a), Willes, J., said, "There must be some certain and reasonable limitation, in point of time, laid down by the Court, when the insurer shall be released from his engagement." In Redman v. Wilson (b), ASSURance Co. where the ship insured against the perils of the seas was injured by the negligent loading of her cargo, and in consequence thereof shortly afterwards became leaky, and being pronounced unseaworthy was run ashore in order to prevent her from sinking and to save the cargo, it was held, that the insurers were liable for a constructive total loss, the immediate cause of the loss being the perils of the seas, although the cause of the unseaworthiness was the negligence in loading.—He also cited Jones v. Schmoll (c), and Logan v. Hall (d).

Tomlinson (in the absence of Sir F. Thesiger) was not called upon to reply.

POLLOCK, C. B.-We think it unnecessary to hear any further argument on the part of the plaintiffs. The question for the Court is, whether, under the particular circumstances of this case, the plaintiffs are entitled to recover from the underwriters for the damage occasioned to the tobacco, as a loss within the meaning of the policy; and we are all clearly of opinion that our judgment ought to be for the plaintiffs. Mr. Peacock has argued the case with much ingenuity, and the effect of his argument has been to cause some doubt where the precise limits of the responsibility of underwriters are to be fixed. Many ingenious cases might be suggested, in which the Court would have much difficulty in deciding whether they would fall within such limits. But it appears to me that no such doubt or difficulty exists in the present case, and I think, as fell

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1851.

ΜΟΝΤΟΥ Α

บ.

LONDON

from one of the members of the Court in the course of the argument, that, if the underwriters here would have been responsible for damage done to a cargo consisting entirely ASSURANCE CO of corn, the lower part of which had been spoilt by direct contact with the sea-water, and the upper by the fermentation of the lower part, the underwriters must equally be liable in the present case: for, in truth, there is no distinction between the two cases. It is a matter of no difference whether the whole of the cargo belongs to one person, and consists of one entire package of corn, or whether the cargo consists partly of corn and partly of hides, and is the property of several owners. In both cases the loss arises from perils of the seas; and it is difficult to see how the loss can be said not to be the immediate result of such perils. Several of the cases put to us on the part of the defendants are, in my opinion, cases of the direct and immediate consequence of perils of the seas, in which the sea-water is the immediate cause of the loss. And I think it may be laid down as a general rule, that where mischief arises from perils of the seas, and the natural and almost inevitable consequence of that mischief is to create further mischievous results, the underwriters, in such case, are responsible for the further mischief so occasioned.

PARKE, B.—I am also of opinion that our judgment ought to be for the plaintiffs. There is no doubt that the maxim of Lord Bacon, which was cited at the commencement of the case, and has been relied upon by Mr. Peacock, is perfectly correct, and applies not only to the present case but to all cases of this description; and the question in each case is, what is causa proxima, and what causa remota. There is very great difficulty, as my Lord Chief Baron has observed, in saying where the precise line is to be drawn; and it is often no easy matter to decide whether a particular case falls within it or not. But I do not see that

1851.

ΜΟΝΤΟΥΛ

V.

LONDON

there is any difficulty in saying that the present case does fall within the line. If the owner of this tobacco which has been injured, could recover compensation for his loss occasioned by that injury from the master or owner of ASSURAnce Co. the vessel, there is no good reason why he should not be entitled also to recover against the underwriter for a loss occasioned by perils of the seas. If the cargo had consisted wholly of hides, and the upper part had been injured by vapours arising from the decomposition of the lower hides, occasioned by the action of sea-water, the owner of the hides would have been entitled to recover from the underwriter for the injury so occasioned to the upper layers. It is a matter of no difference whatever that the cargo consists partly of corn and partly of hides. The loss in either case is immediately and directly caused by perils of the seas, and would therefore fall within the terms of this policy. It is therefore not necessary to give any opinion upon the cases which have been put on the part of the defendants. Some of them may fall within the line, and others without it. 'It seems to me to be impossible to distinguish this case from that which I put, where the cargo is supposed to consist entirely of hides or corn, and the upper part is injured by noxious gasses arising from the decomposition of the lower portions, or by the water being raised by capillary attraction. The assured are therefore entitled to recover in this action.

PLATT, B.—I am of the same opinion. I do not feel that I was answered by the difficulty which Mr. Peacock suggested in reply to the case I put to him during the course of his argument. The learned counsel asked at what time the loss occurred. I do not think that is a matter of the least moment or consequence whatever. The sea-water having caused the hides to ferment, and thereby the tobacco to be spoilt, it is merely playing with

1851.

ΜΟΝΤΟΥ Α

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terms to say that the injury is not occasioned by the seawater. The action of the sea-water which has been shipped in consequence of bad weather occasions the ASSURANCE Co. fermentation, and is the proximate cause. It appears to

v.

LONDON

me, therefore, that whatever mischief is occasioned to the cargo by the shipping of sea-water, is a loss occasioned by the perils of the seas, and that the insurers are liable to make the loss good.

MARTIN, B.—I am clearly of opinion that the injury to the tobacco is a loss arising from perils of the seas. The case finds that the putrefaction of the hides was caused by the sea-water, which had found its way into the hold of the vessel, and that the putrefaction of the hides so occasioned had caused the destruction of the tobacco. I do not think it to be by any means necessary that the sea-water should be in absolute contact with the injured article. The result of the injury to the hides by the sea-water is the damage to the tobacco. It is, no doubt, difficult to say where the line is to be drawn in all cases.

But in the present the

loss clearly falls within the terms of the policy, as arising

from perils of the seas.

Judgment for the plaintiffs.

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