Benjamin Robbins Curtis

“ Early notice of the pendency of the action in the District Court, and also of the appeal to the Circuit Court, was given to the Mutual Safety Insurance Company, with a request that they would unite in the defence, or take such measures as they might deem proper.
Owners of other parts of the cargo lost by the collision, filed their libels against the Virginian, which, after the decrees above mentioned, were settled by compromise; other claims were also made, and settled by compromise; in every instance, the sum paid being less than the claim. ”

“ Mr. Arnould, in his valuable Treatise on Insurance, (vol. 2, 775,) lays down the correct rule: 'Where the loss is not proximately caused by the perils of the sea, but is directly referable to the negligence or misconduct of the master or other agents of the assured, not amounting to barratry, there seems little doubt that the underwriters would be thereby discharged.' To this rule must be referred that class of cases, in which the misconduct of the master or mariners has either aggravated the consequences of a peril insured against, or been of itself the efficient cause of the whole loss. ”

“ Thus, if damage be done by a peril insured against, and the master neglects to repair that damage, and in consequence of the want of such repairs, the vessel is lost, the neglect to make repairs, and not the sea damage, has been treated as the proximate cause of the loss. ”

“ But in this case he does not seek to go behind the cause of loss, and defend himself by showing this cause was produced by negligence. The insured himself goes behind the collision, and shows, as the sole reason why he has paid the money, that the negligence of his servants compelled him to pay it. It is true that an expense, attached by the law maritime to the subject insured, solely as a consequence of a peril, may be considered as proximately caused by that peril. ”

“ On the 6th April, 1847, Judge Nelson delivered his opinion, and found, upon the proofs, in substance, that the Virginian was not in fault; that the mistaken order of the mate of the brig to the man at the wheel, in connection with the derangement of the running rigging of the vessel, and the confusion on board from her misstaying a few minutes before, had produced the collision. The Circuit Court affirmed the decree of the District Court, with costs. This decree was settled by compromise, and upon payment by the owners of a sum less than the decree, it was satisfied. ”

“ The great and increasing internal navigation of the United States, carried on over long distances, through the channels of rivers and other comparatively narrow waters, where the danger of collisions, and the frequency of their occurrence, are much greater than on maritime voyages, renders the respective rights of underwriters and insured, growing out of such occurrences, of more moment in this than in any other civilized country ”

“ II. A loss by collision is one of the perils insured against, as much so as loss by fire, stranding, capture, &c. If it occurs without fault on the part of the insured vessel, it is conceded that the underwriters are bound to indemnify the assured against loss; and, upon principle and authority, the insurers are equally liable if the collision happens through the fault, mistake, error of judgment, or carelessness of the vessel insured. ”

“ If the assured has provided a seaworthy vessel, with a skilful master and a sufficient and competent crew, the underwriter takes the risks of navigation, and of the perils insured against, although caused by the negligence, carelessness or unskilfulness of the master and crew. ”

“ On the 23d August, 1847, the owners of the brig Emily, having previously presented to their various underwriters preliminary proofs of the loss, copies of the proceedings in the District and Circuit Courts, and of the payment and settlement of the demands aforesaid, commenced suits upon the policies of insurance, in the Circuit Court of the United States. ”

“ V. The defendants are responsible for all the costs, charges, and expenses, fairly and reasonably incurred by the plaintiff below, in defending the vessel from the claims made against her; this is necessary to afford him a full indemnity; and the clause in the policy, rendering it proper and necessary to sue of labor and travel in and about the defence, safeguard and recovery of the vessel, contemplates and provides for it. ”

“ On consideration whereof, it is now here ordered and adjudged, by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to enter a judgment for the plaintiff in error, on the demurrer to the two first counts, and to award a venire facias de novo, to try the general issue pleaded to the other counts. ”

“ Merchants Ins. Co. 11 Peters, 213; Columbia Ins. Co. v. Lawrence, 10 Peters, 507; Patapsco Ins. Co. v. Coulter, 3 Peters's R. 222; Hale v. Wash. Ins. Co. 2 Story R. 176; Smith's Mercant. Law, (Amer. Edit.) ”