
    Russell C. Daniels et al. v. David Ballantine et al.
    The defendants contracted to tow the plaintiff’s barge, by means of a steam-tug, from Bay City, Michigan, to Buffalo, New York. After the voyage had been commenced, and been partly performed, it was voluntarily suspended and delayed by defendants, the barge during the delay being exposed to none of the perils peculiar to the voyage. After the-voyage was resumed, and while it was being duly prosecuted, a storm was encountered by which the barge was lost. Held, that the defendants, by the mere fact of the delay, did not become responsible for the loss of the barge, although the delay was unreasonable and unnecessary, and although, as the event proved, the barge, but for the delay, would, probably, have been safely towed to its place of destination. In such case the storm must be regarded as the proximate, and the' delay as only the remote cause of the loss.
    
      Error to the Court of Common Pleas of Lucas county. Deserved in the District Court.
    The plaintiffs in error brought their action in the Common Pleas of Lucas county, to recover the value of a barge which -defendants contracted to tow, by means of a steam-tug, from Bay City, Michigan, to Buffalo, New York, and which, in the course of the voyage, was lost in a storm on Lake Erie. On the trial of the case in that court, the plaintiffs, in support of the allegations of their petition, gave evidence tending to prove, “That after said voyage had been commenced, and after it had been partly performed, the defendants delayed on the route three days, and during that time made no effort to prosecute the voyage.
    “ That such delay was unusual, extraordinary, voluntary, without just cause, and unnecessary.
    “That during such delay the weather was pleasant, and if the voyage had been prosecuted in the usual manner and with all practicable, safe, and convenient expedition, the barge would, probably, have been safely and securely towed to its place of destination.
    “ That after such delay had occurred, the defendants again caused said barge to be taken in tow and commenced again to prosecute the voyage from the place where the delay occurred to the place of destination, and while on such delayed voyage the barge and tug were overtaken by a violent storm, and said barge and its cargo entirely lost.
    “ That said barge could only be moved by being towed, .and while being towed was entirely under the control of the officers and men on board the tug as to its movements, but the officers and men of the barge remained on board the barge to care for the cargo and direct its movements in following the tug.”
    The plaintiffs thereupon asked the court to instruct the jury, “ that if they should find that said defendants did agree with the plaintiffs to tow said barge from Bay City to Buffalo, and did commence said voyage, and while in the prosecution thereof did voluntarily delay and prolong the same for an unusual and extraordinary period without necessity or just cause, they would be liable to the plaintiffs-for the loss of said barge while the voyage was being prosecuted after such delay bad occurred, even though such loss should have been occasioned by the dangers of navigation, if the jury should also find that if said voyage had been prosecuted without such delay and with all practicable, safe, and convenient expedition, said loss would not have occurred.”
    The court refused so to charge the jury, and did instruct, them, that even though they should find said defendants did voluntarily delay and prolong said voyage for an unusual and extraordinary length of time without necessity or just cause, and the loss occurred by one of the dangers' of navigation after such delay had occurred and while the defendants were thereafter prosecuting said voyage in the usual and ordinary manner, the defendants would not be liable to the plaintiffs for such loss.”
    The plaintiffs excepted to the charge given, and to the-refusal of the court to charge as requested.
    The jury returned a verdict for defendants, upon which judgment was entered in their favor. The present petition in error, based upon the exceptions stated, was filed in the-District Court, and in that court the ease was reserved for decision here.
    
      M. R. & R. Waite, for plaintiffs in error:
    I. The direct question is presented, whether if, after a voyage has been commenced, it is voluntarily delayed and’ prolonged for an unusual length of time, without necessity or just cause, and a loss happens by one of the dangers of navigation after the delay has occurred, and while the voyage is being thereafter prosecuted in the usual and ordinary manner, the parties bound for the performance of the voyage are liable for the loss.
    When the defendants contracted to tow the barge of the-plaintiffs from Bay City to Buffalo, they contracted, in. effect, to make a voyage by water with a steam-tug between' those points, and take the barge of the plaintiffs in tow. 1 Phil. on Ins., 3 ed., sec. 981.
    II. A voluntary and unreasonable delay in the performance of a voyagé after it has once been begun is a “deviation.” Mount v. Larkins, 8 Bing. 108; 21 E. C. L. 244, 245; Hartley v. Buggin, Mich. 2 G. III, Park, 313; 1 Phil. on Ins., chap. 12, sec. 978 (3d ed).
    III. After a “ deviation,” those bound to perform the voyage become insurers, and are liable for any subsequent loss during the continuance of the voyage. Knox v. The Ninetta, Crabbe, 534; 1 Parsons’ Maritime Law, 122, 123, note; Parker v. James, 4 Camp. 112; Read v. Spaulding, 5 Bosw. 408; Parmelee v. Wilks, 22 Barb. 539.
    IV. If a shipper becomes his own insurer, he has, as against the ship-owner, all the remedies he would have had if he had been insured by others.
    V. If the loss had occurred while the voyage was actually stopped, there would have been no doubt of the liability of the defendants. But it is insisted that the deviation ended with the actual stoppage,^ and that for the remainder of the voyage, the liability of the tug was only such as it would have beeu if no delay had occurred, and this because the deviation can not be said to be the proximate cause of the loss. But the deviation was the proximate cause of the loss. Read v. Spaulding, 5 Bosw. 395; S. C., 30 N. Y. 630; Parmelee v. Wilks, 22 Barb. 540; Williams v. Grant, 1 Conn. 491.
    It was that which exposed the barge to the peril. It is-true the peril was encountered while -a voyage was being prosecuted, but it was a delayed voyage. The delay was in operation so long as the voyage continued.
    In Ingleden v. R. R. Co., 7 Gray, 86; Denny v. Central R. R. Co., 13 Gray, 481, 487, the loss happened after the contract had been performed and the property delivered. And Morrison v. Davis, 20 Penn. St. 171, and Denny v. N. Y. C. R. R. Co., were considered and not followed in Read v. Spaulding, cited supra. Souter v. Baymore, 7 Barr, 415, was decided the other way, in the case of The Ninetta, 
      Crabbe, 534, before cited and approved by Judge Parsons.
    In Railroad Co. v. Reeves, 10 Wal. 176, the question involved in this case was not discussed in the opinion. The cases of Morrison v. Davis and Denny v. N. Y. Gent. R. R. Co. were indeed cited with approbation, but the fact that in the last case the voyage -was ended, is not noticed.
    VI. But again it is said: “Tug-boats are not common carriers, and the rules applicable to carriers do not apply to the preseut case.”
    It is probably true that these defendants were not common carriers, and that all the rules applicable to carriers do not apply to them, but they were certainly bound to perform the voyage in the usual and ordinary manner, and are liable for a failure of duty in this respect.
    
      Kent, Newton & Pugsley, with whom was Henry B. Brown, for defendants in error:
    I. There is but a single question raised by the bill of exceptions in this case, viz :
    Whether the delay in St. Clair river, admitting it to have been unusual and unnecessary, can be considered the proximate cause of a loss subsequently occurring by a peril of the sea in Lake Erie.
    According to the definitions of the school-men, “That is "the proximate cause which produces its effect immediately. That is a remote cause which produces the effect by means of a more neighboring cause.” Burgersdyk Institutioues Lógicas. See also 12 Wal. 199; 4 Law Review, 204-208.
    Mr. Justice Curtis, in General Mutual Insurance Gomjiany v. Sherwood, 14 How. 351, 366, states the rule to be “ in looking for the proximate cause of the loss, if it is found to be a peril of the sea, we inquire no further; we do not look for the cause of that peril.”
    To hold a defendant liable for a loss occurring directly by a peril of the sea, it must appear that the peril and loss happened at the time his wrongful act was in operation and force. Marble v. City of Worcester, 4 Gray, 395; Ingleden v 
      R. R. Co., 7 Gray, 86; Denny v. N. Y. C. R. R. Co., 13 Gray, 481; Morrison v. Davis, 20 Penn. St. 481; Souter v. Baymore, 7 Barr, 415. See also Freeman v. Taylor, 8 Bing. 124; Angell on Carriers, secs. 164, 175, 179, 206.
    Two New York cases seem inconsistent with the above decisions, and. assert a contrary doctrine. Read v. Spaulding, 5 Bosw. 395, and Parmalee v. Wilks, 22 Barb. 539.
    In the former case as reported in 30 N. Y. 630, it expressly appears that the goods were injured while delayed in warehouse at Albany, hence the case does not apply here. We are confident that the rule enunciated in the case of Parmalee v. Wilks, is not law. In most of the cases cited on the other side, the damage occurred during a deviation, or while the defendant’s wrongful act was in operation.
    In no case that we have been able to find, except that of Parmalee v. Wilks, have the defendants been held liable for .a loss occurred after a delay or deviation, and when the carrier had resumed his vessel route. The delay is quite as likely to be the means of preserving as of exposing the barge to a peril of the sea.
    But it is urged that by the deviation the defendants became insurers of the barge — in other words, that if the barge had been insured, the underwriters would have been discharged absolutely by the deviation, and that to save the plaintiffs a remedy, the liability is transferred by a deviation from the underwriter to the carrier.
    This supposed analogy is fully exploded in the case of Souter v. Baymore above cited. See Hart v. Allen, 2 Watts, 114; Reed v. Dick, 8 Watts, 480; Angell on Carriers, secs. 173, 207, 208; 1 Pars, on Ship. 320, note 2; Story on Bailments, secs. 413 a, 413 d, 515; Collier v. Valentine, 11 Mo. 299; Hastings v. Pepper, 11 Pick. 41; Havelock v. Geddes, 10 East, 555.
    II. But again, tow-boats are not common carriers; and the rules applicable to carriers do not apply to the present case. Caton v. Rumney, 13 Wend. 387; Alexander v. Greene, 
      3 Hill, 1; Penn. Nav. Co. v. Dandridge, 8 Gill & J. 109, Wells v. Steam Nav. Co., 2 Comst. 204; 1 Pars. on Ship. 247, mote 3; Angell on Carriers, sec. 86; Clarke v. Moore, 3 Mich. 55. As to proximate cause, etc., see R. R. Co. v. Reeves, 10 Wal. 176; Needham v. R. R. Co., 37 Cal. 499.
   Stone, J.

The general, if not the universal rule applicable in cases where compensation is sought for the consequences of a wrongful or negligent act, or for the violation of a contract, is that the wrong-doer, or party in default, is responsible only for the proximate, and not for the remote consequences of his actions.

It has sometimes been said that the policy of the law applicable to common carriers required, as to them, the application of a different rule. The weight of authority seems to be the other way; but how this may be,-the exigencies of the present case do not require us to determine. It is not alleged .that the defendants were common carriers,, and if that claim had been made, it is clear it could not be sustained.

The barge was not delivered to the defendants. They were entitled, under the contract, to such control of it as. was necessary to enable them, by means of the contemplated agency, to move it to its place of destination, but this was not inconsistent with the plaintiffs’ possession, and for most purposes it remained in their custody and care. Caton v. Rumney, 13 Wend. 387; Wells v. Steam Nav. Co., 2 Comst. 204; Angell on Carriers, sec. 86.

The case undoubtedly falls within the rule referred to;, but the rule is itself, in many cases, exceedingly difficult of application. It leaves the proximate cause undefined, and it is found impossible, by any general rule applicable to all cases, to draw the line between those causes of damage which the law regards as proximate and those which are too remote to be the foundation of an action.

Cases arising under the law of marine insurance are often cited, and are cited in this case to illustrate the distinction,, but it is evident they can afford, in eases of this kind, no essential aid. The maxim causa próxima, non remota spectator, as generally applicable in cases of marine insurance, makes the liability of the underwriter to depend upon the question whether the immediate and directly operating cause of the loss was one of the perils covered by the policy.

“In applying this maxim,” says Mr. Justice Curtis, in Gen. Mut. Ins. Co. v. Sherwood, 14 How. 351, “in looking for the proximate cause of the loss, if it be found to be a peril of the sea, we inquire no further; we do not look for the cause of that peril.” See also Ins. Co. v. Transportation Co., 12 Wal. 194.

But in suits at common law, to recover damages for a breach of contract or tort, the maxim is, in this particular, in many cases, properly applied in a less restricted sense. In such actions a principle is involved not, in general, applicable in the law of insurance; the liability of the defendant being made to depend upon the natural and probable connection between the breach of contract or tort, and the alleged injurious consequence. Hence, in such eases, while the responsibility of the defendant is not, necessarily, restricted to the direct and immediate consequence of his fault, it does not extend to consequences which can not be regarded as the natural results of his conduct, and which, on that account, could not, by ordinary forecast, be anticipated.

In the present case, the route which defendants were, necessarily, to pursue in the performance of their contract, lay through Lakes Huron and Erie, and the rivers or straits connecting those waters. The delay is said, in argument, to have occurred in the St. Clair river. The record is silent upon this subject, but it appears that the voyage was, for the time, wholly suspended. After the delay the barge was again taken in tow, and the voyage was resumed. It is, perhaps fairly, to be inferred that the barge was, in the meantime, in a place of safety; but upon this subject it is sufficient to say that it does not appear, nor is it claimed, that it was exposed, during the delay, to any of the perils incident to the voyage. Nor does it appear, from any fact or circumstance in the case, that there was any reason to apprehend that the perils to be encountered in completing the voyage would be increased by the delay. No fault is imputed to the defendants in resuming the voyage at the time they did, and it does not appear that in anything which subsequently occurred’ they failed in any respect in the performance of their duty. The storm which caused the loss of the barge, was encountered after the delay and while the voyage, after it had been resumed, was being duly prosecuted. As the event proved, the storm would not have been encountered if no delay had occurred; but this was a merely fortuitous result. It was not a consequence which “arose naturally, i. e., according to the usual course of things,” from the particular breach of contract complained of. Hadley v. Baxendale, 9 Exch. 341. The two events had, in the nature of things, no natural or necessary connection. It was, for .aught that appears, as reasonable to expect that the delay would be the means of avoiding extraordinary peril, in the further prosecution of the voyage, as it was to expect a contrary result. And while it is true, as the event proved, that the storm which caused the loss would not have been encountered if there had been no delay, it is at the same time evident that if the delay had been greater, and the' default of the defendants, in that respect, more flagrant than it was, the same favorable result would have followed.

The delay can not, therefore, be regarded as the proximate cause of the loss. It constituted a breach of the contract, and for any injury naturally resulting therefrom the defendants were clearly responsible, but except by a conjunction, which there was no reason to anticipate, and which was merely fortuitous, with a subsequent event, it had no agency in causing the loss of the barge. Of that loss the storm was the proximate and sufficient cause. Morris v. Davis, 20 Penn. St. 171; Denny v. N. Y. C. R. R. Co., 13 Gray, 481; Railroad Co. v. Reeves, 10 Wal. 176.

It is contended, however, on behalf of the plaintiffs, that the defendants are responsible on another ground. The delay, it is said, constituted in law a deviation which would have discharged the underwriter if the barge had been insured; and assuming that the defendants would, in that case, in the further prosecution of the voyage, have taken upon> themselves all the risks covered by the policy, it is claimed that the plaintiffs, being their own insurers, are entitled toad the remedies they would have had if the barge had been insured by others.

A deviation has, it is true, in some circumstances the effect to put an end to the contract of insurance, but in such cases the underwriter is discharged, not because the risks are increased, but because they are not the risks he contracted to assume. So long as the risks are varied, it is wholly immaterial whether they are increased or not. If, then, the defendants are responsible on the ground contended for, they would be equally responsible, although it should be made clearly to appear that if there had been no-delay, the same, or even a worse storm would have been-encountered. In short, the plaintiffs would in that case be enabled, by reason of the delay, to recover the value of the barge without averring, or being able to aver, that the delay caused the loss or operated in any way to their injury. The delay occurring, they would thus, without cost, secure the benefit of an insurance for the remainder of the voyage.

If the barge had been insured against the peril by which its loss was occasioned., and it could be shown that the-insurer was discharged by reason of the delay, a different question would have been presented. In such case, the facts being known to the defendants, the loss of the policy might well be held to be the proximate consequence of their wrongful conduct, but in such case the ground of the action would not be the loss of the barge, but the discharge of the underwriter, by reason of which the plaintiffs were deprived of the indemnity which they would otherwise have been able to obtain.

We think the court below did not err in the instructions given to the jury, or in refusing the instructions prayed for.

Judgment affirmed.  