
    (*) John Rice and Another versus Benjamin P. Homer.
    Insurance was on a vessel and cargo from Boston to a port or ports in Europe By a clause in the policy the perils were restricted as follows; “ The underwriters, in case of restraint, are exempted from plunder, waste, and expense, and from capture and condemnation by all powers ; but they agree to take the dangers of the seas, and the perils in the policy not excepted, even while detained and afterwards.” On the passage out the vessel suffered damage by perils of the sea, to three fourths of her value, and one third of her cargo was thrown overboard to preserve the lives of the crew, and the residue of the cargo. In consequence of this misfortune she was forced into a port of France, where the vessel and the remaining cargo were seized, and afterwards sold by officers of the government.
    It was holden, that, the capture being the proximate cause of the loss, the underwriters were not liable for the loss of the ship or cargo, except so much of the latter as was thrown overboard during the passage as aforesaid.
    
      Assumpsit on a policy of insurance, dated January 5th, 1810, for $4000 on the hull and appurtenances of the brigantine Ocean, and $6000 on her cargo, at and from Boston to a port or ports ir. Europe, for the purpose of discharging her outward and procuring a return cargo, and at and from thence to her port of discharge in the United Slates, with liberty of going to any of the usual places for salt ; at a premium of six per cent., and an addition of one per cent. if she went within the Straits of Gibraltar. The vessel was valued at $6500. The defendant subscribed $1000. It was agreed in the policy, that, in case of capture or restraint, the assured were not to abandon until the property was condemned, or until it should be proved to have been under restraint for-days. The perils in the policy were restricted by the following note at the foot of the policy, “ The underwriters, in case of restraint, are exempted from plunder, waste, and expense, and from capture and condemnation by all powers ; but they agree to take the dangers of the seas, and the perils in the policy not excepted, even while detained and after-wards.”
    The plaintiffs declared in the first count for a total loss by perils of the seas, storms, and tempests ; and in the second count, by restraints and detainment by persons under the authority of the supreme government of the empire of France. They declared for [*231 ] a loss by general average, in the third * count, by cutting away much of the tackle, apparel, and furniture of the vessel; and throwing overboard a large part of the cargo, to preserve the lives of the crew, and to save the residue of the vessel and cargo ; and they aver that by such loss the residue was saved. A fourth count alleged the loss in the same manner as the third ; but does not aver that the residue was saved by such jettison.
    At the trial of the action, which was had before the late Chief Justice Parsons, November term, 1812, a verdict was found for the plaintiffs as for a total loss, by consent of the parties, subject to the opinion of the Court, whether any, and, if any, what loss was proved by the facts as agreed by the parties ; and if the opinion of the Court should be, that any loss was proved, assessors were to be appointed by the Court, to ascertain the amount and particulars thereof, and assess the plaintiffs’ damages upon such principles as the Court should prescribe ; and the verdict was to be set aside or amended accord ingly.
    The facts agreed were the following ; namely, the defendant subscribed the policy, and the plaintiffs were interested in vessel and cargo, as alleged. The vessel sailed from Boston on the 6th of January, 1810, and on the 9th, 10th, and 20th of the same month, by tempestuous weather and the dangers of the seas, the master and crew were compelled to throw overboard nearly one third of the cargo, all the cables and anchors, and sundry appurtenances, to lighten the vessel, and to preserve their lives, and the residue of the cargo and vessel.
    They saw no vessel to take them off the wreck, until their arrival in the Bay of Biscay, near St. Sebastian’s, and then only a pilot boat. It being unsafe to go to St. Sebastian’s or St. Andero without cables and anchor, the pilot sent his boat into St. Jean de Luz for them, himself remaining on board the ship, and promising, as the master testified, if he procured cables and anchors, to carry the ship to St. Sebastian’s the next morning. It being impossible to keep off the shore that afternoon, in the shattered state of the hull * and sails of the vessel, or to go to St. Sebastian’s or to St. [ * 232 ] Andero, when the pilot-boat had the cables and anchors ready, the ship came to in the harbour of St. Jean de Luz, and was there moored about four o’clock in the afternoon of the 12th of February.
    The next morning, at ten o’clock, she was seized by certain officers of the French government, who sealed up the hatches, took the crew on shore to be interrogated, and sequestrated the Ocean and her cargo, summoning the master to appear before the council of prizes at Paris, as appeared by the proces verbal of seizure, dated the 21st of February. The vessel and cargo were detained until sold, as hereafter mentioned, and the proceeds still detained by the said officers ; and they have never been condemned by the council of prizes aforesaid.
    
      The vessel was injured, by the violence of the seas and tempestuous weather on her voyage, to the amount of three fourths of her value, in the opinion of the master, who thought her not worth repairing. On the 20th of March, he applied to the French officer who had the custody of the vessel, requesting that surveyors might be appointed to examine her ; to which he replied, that the request appeared to him very singular, and that he could not perceive the utility of such a measure, and accordingly refused it. In April and May following, the vessel was examined by certain French carpenters and others, and also by three American shipmasters, appointed by the American vice-consul at the request of the master of the Ocean, who reported, that, in their opinion, the ship was not worth repairing.
    On the 31st of March, a small part of the cargo was sold, being damaged ; and the residue, undamaged, on the 9th of June.
    The master gave intelligence of all these facts to his owners at Boston, by letter of the 21st of July, and a duplicate of the same date, by two vessels, which, having compromised with their captors, sailed for Marblehead and New York.
    
    
      * On the 12th of September, 1810, the plaintiffs season- [ *233] ably abandoned their interest in the vessel alone, and their interest in the cargo on the 8th of May next following ; no change having taken place since the letter from the master. The cargo produced 98,000 francs. The vessel was sold, on the 25th of July, for 2400 francs. The master remained in France long after, prosecuting the claim for vessel and cargo, but had never obtained any determination from the council.
    The cause was argued, March term, 1813, by Prescott and Savage, for the plaintiffs, and by Jackson, for the defendant;
    and, having been continued under advisement until this term, the opinion of the Court was now delivered by
   Parker, C. J.

[After stating the action, the policy, and the facts agreed.] On these facts the question is now submitted to the Court, whether any, and, if any, what loss is proved ; and the verdict, which was taken by consent of parties, is to be set aside or amended, according to the direction of the Court.

The seizure of the vessel in St. Jean de Luz, not being alleged to have been for a breach of the revenue or other municipal laws of. France, must be viewed as a hostile capture ; so that, if this policy had insured the plaintiffs against capture, there is no doubt the underwriters would have been liable for a total loss. In the case of Lee vs. Boardman it was decided, that an arrest by a foreign power, although not in a state of war with the country of the insured, is a capture ; and the authorities, cited in that case, are sufficient to justify that decision.

Notwithstanding the disasters which happened to the vessel before she arrived at the French port, yet, as she went into that port entire, and carried her cargo, except what had been thrown overboard in the tempests, she would be considered as having been lost by capture, and not by the perils of the sea ; unless the testimony of the master, that she was injured by sea peril to the amount of three fourths of her value, is to take her out of the rule established [*234] * by Lord Kenyon, in the case of Green vs. Elmslie, and since recognized by Lord Ellenborough, in the case of Livie vs. Janson; which rule, although not binding upon us, must be considered as founded on correct principles, and as a necessary branch of the law of insurance.

The maxim, Causa próxima, non remota, spectatur, is of importance to be observed in these contracts. For it will be difficult, if not impossible, in the case of successive misfortunes happening to a ship, from divers causes, to make a just apportionment of the injury to the peril ; and, as a general rule, which, when understood, will produce equality in its application, to attribute the loss to the last peril which affects the vessel, she having survived antecedent ones, is as safe and convenient as any which can be suggested.

The only answer given to this defence is, that, in the cases decided upon that principle, a partial loss only was claimed ; and it seems to be admitted, that, when the subject-matter is wholly lost by a subsequent peril, the antecedent partial loss is merged and gone, so that no action can be founded upon it, no repairs having been actually made, and no expenses incurred.

But it is said, that in this case there was a total loss of the ship, by the perils of the sea, before she was captured, because she was injured to three fourths of her value, and was not worth repairing.

We have been struck with this distinction, and have not abandoned it without much hesitation, because technical rules only seem to prevent the plaintiffs from recovering an indemnity for the multiplied disasters of their voyage. But, on full consideration, we are of opinion that the plaintiffs cannot prevail on this ground.

It is true, if the ship had arrived in a friendly country in the state she is described by the master to have been in, the assured might, after abandonment, have recovered as for a total loss. But the loss was only constructively total, and an abandonment was necessary to give a right of action against the underwriters. The ship, although damaged, was * entire as a ship, when taken [ * 235] possession of by the French officers. If she had not been damaged, and had arrived at the same place, the same catastrophe would have happened. It is true, the tempest obliged her to go inti? that port ; but the going in was not the loss. It was the capture and the underwriters against capture, if there be any, must make up the loss, without any diminution on account of the previous damage sustained by the vessel.

Further, there can be no total loss here on account of sea peril , for, notwithstanding that peril, the ship was left ; and there ought to be an effectual abandonment to entitle the assured to recover. But in this case there could be no such abandonment, because, by a subsequent loss, at the risk of the assured or of other underwriters, the assured was disabled from abandoning, on account of the partial loss, so as to pass the property of the ship to the insurer. And in no case can a loss, in its nature partial, be converted into a total loss, where the subject-matter, either by the act of the assured, or by the act of others while at his risk, is not under his control, so that he may transfer a title by abandonment.

A partial loss upon the vessel cannot be recovered, for the reasons before given, namely, that the subsequent total loss merged the partial loss, and rendered it altogether immaterial in its effects, no expense having been actually incurred for repairing the damage, before the total loss took place.

The same reasoning is applicable to the cargo which arrived in the vessel at St. Jean de Luz, and was there sequestrated. It must be considered as captured ; and although a part of it was damaged by sea peril, yet the whole must be considered as the loss of the underwriters against capture, or of the insured, who, if they made no insurance against that risk, were their own underwriters.

With respect, however, to that part of the cargo which was thrown overboard in the tempest, long before the capture [ * 236 ] took place, we think a different principle applies. A * distinct and separate portion of the cargo was thus utterly lost by sea peril. Whether the ship had been afterwards captured or not, this loss would have remained absolute and irreparable. It was not a mere deterioration of the cargo, leaving the subject-matter whole and entire, although impaired in value, like the damage to the ship. For this part, so lost, we think the assured may recover as for a partial loss upon the cargo. The underwriters against capture upon the cargo, if called upon to make good the loss, would have a right to prove, that, when the capture took place, a third part of the cargo had been actually lost before by another peril, and that two thirds only were on board the vessel when she was captured.

Suppose two policies bad actually been effected upon a cargo, one against sea perils, and the other against capture ; and it should be made manifest, that one half of the cargo was actually lost, by stress of weather, in a few days after the vessel sailed ; and afterwards, towards the termination of the voyage, she was captured. Would it not be perfectly equitable and legal, that each policy should indemnify, the assured for what was lost by the risk it insured against ? So, if the whole cargo was lost before capture, the underwriter against sea perils should pay for the whole, because, in such a case, nothing would be captured.

We have not been able to find any decided case similar to the one before us. But we think the principles of law, applicable to this contract, justify the rule we have adopted. The only reason why a loss upon the ship cannot be recovered, there being a subse quent total loss, is, that the damage to the ship is reparable, and the capture renders it not only vain and fruitless, but utterly impossible, for the assured to repair her; so that no loss can fairly be said to have taken place, which vests a right of action, until the property was divested from the assured by another peril.

But with respect to the actual destruction of a portion of the cargo before the capture, by sea peril, we think that the un.derwriters upon this policy are clearly answerable. Assessors * must, therefore, be appointed, according to the agree- [*237] ment of the parties, who will ascertain the amount for which the defendant is holden. There being no salvage, there can be no contribution ; so that the value of the cargo lost will show the amount to be recovered. 
      
       3 Mass. Rep. 238.
     
      
      
        Peake's N. P. 212.
     
      
       12 East, 647,
     
      
      
        Walker vs. Maitland, 5 B. & A. 171. — Bishop vs. Pentland, 7 B. &. C. 223. — Burk vs. Royal Exch. Ins. Co., 2 B. A. 73. — Holdworth vs Wise, 7 B. & Cr. 794, 1 M. & B 653. — Lam vs Goddard, ante, 112.
     
      
      
        Patrick vs. Com. Ins. Co., 11 Johns. 9-14. — Schieffelin vs. New York Ins. Co., 9 Johns. 21. — Coit vs. Smith, 3 Johns. Cases, 16. — Williams vs. Smith, 2 Caines, 20.
     