
    * Charles Cleveland and Others versus The Union Insurance Company.
    Where a loss by capture of a neutral ship arises from the negligence of the master, in leaving the ship’s register, &c., on shore, the underwriters are not liable
    The plaintiffs declare in an action of the case, first upon a policy of insurance upon the brig Liberty, her cargo and outfits, of which a total loss by capture in the voyage insured is averred. The second count is for money laid out and expended.
    A trial was had at the sittings here after the last November term,' before Sewall, J., and a verdict taken for the plaintiffs, in which the damages were assessed for the value of the vessel as insured, for u quantity of provisions and salt on board belonging to the owners, and for expenses incurred in claiming the vessel, when libelled in consequence of the capture. The verdict was taken subject to the opinion of the Court upon the facts to be reported by the judge who sat at the trial, and was to be amended in the amount of damages assessed, or to be set aside, and a verdict entered for the defendants, or a new trial granted, as the opinion of the Court should be.
    The policy, dated October 30th, 1804, together with sundry depositions and other documents, including a certificate from the registry of the Court of Vice Admiralty at Columba, in the island of Ceylon, of the condemnation of the vessel, and the master’s protest, were read in evidence, and were to be referred to as parts of the case. — The material facts, which were agreed to be proved by this evidence, the judge reports as follows: —
    By the policy in question, 12,000 dollars were insured by the defendants upon the brig Liberty, Jonathan Lambert, Jun., master, and her appurtenances, valued at 6000 dollars, and her cargo and outfits at 6000 dollars, “ at and from Salem to any port or ports, place or places, backwards and forwards, round the globe one or more times, during her stay and trade at all such places, until her return to her port of discharge in the United States; ” — against all the * usual perils, including capture and detention of princes, &c., excepting only, by a note at the bottom of the policy, “ any loss that might take place for illicit or contraband trade with or by any power whatever; ” — for a premium at and after the rate of three quarters of one per cent, per month, with liberty to withdraw the policy at any time, warranting nine per cent, due on signing thereof.
    In the month of November, 1804, the vessel, with suitable outfits for a sealing and oil voyage, sailed from Salem, destined to the South Sea, and in the latter part of May, or beginning of June, arrived off the Prince Edward Islands. After a few days employed there in hunting for seals, in which they had very little success, the failure being caused, as they believed, by the lateness of the season, they sailed for the Orozette Islands, but not finding them, after a month employed in looking for them, the vessel returned to the Prince Edward Islands.
    There several attempts were made to get water, of which they were in want. In one of these attempts the captain and several men having been landed, a gale of wind came on, and the vessel was driven off, and did not regain the island until after fourteen days; when the captain and men were found and taken on board, with a small quantity of water. And in another attempt, an officer and six men having been landed, the vessel was again blown off, and did not return to the island until after sixteen days; and then several days were employed in sailing round the island, and in endeavors to find the part of the crew left on shore; but they were not to be found. Captain Lambert finally concluded to abandon his sealing voyage, at least for the residue of the winter, in the southern latitudes, with an intention, as he then thought, of resuming it in the spring; and he accordingly sailed for the Isle of France, where he arrived August 18th, 1805.
    At the Isle of France Captain Lambert endeavored to get the brig into some employment; and on the 28th of September chartered her to Joseph M. Slanesbury, of New York * and Israel Israel, Jun., of Philadelphia, to carry a cargo of brandy, wine, and oil to Bombay, and to return to the Isle of France with such cargo as they should put on board. Upon making this engagement Captain Lambert, as appears by one of his letters referred to, relinquished all intentions of resuming a sealing voyage; retaining, however, some intention of attempting an oil voyage, if he could obtain the necessary outfits upon his return from Bombay 
      The implements, utensils, equipments, and provisions, remaining of the outfits for the sealing voyage, having been landed at the Isle of France, part of them were sold there; and the residue were left in the care of John H. Cabot, excepting only about five hogsheads of salt, which, being stowed in the run of the vessel, it was thought not convenient to land, and provisions for four months, which were taken or retained on board as necessaries for the voyage to Bo nbay
    
    The merchandise taken at the Isle of France, pursuant to the charter, was stated to Captain Lambert, and believed by him, to be articles of a cargo recently brought there from the United States in the ship Projector, in which said Slanesbury had arrived as supercargo ; Captain Lambert having had information of such an arrival, and having noticed that the boxes of claret, among the articles offered for his lading, retained the mark “ Projector.” — On the 3d of October Captain Lambert sailed in the brig Liberty from the Isle of France, bound for Bombay, with the said Israel as supercargo, and with the merchandise above mentioned belonging to the freighters, and with the said salt and provisions, the property of the insured; and the next day they were captured by the British frigate Duncan, Clement Sneyd commander, and ordered to Columbo, in the island of Ceylon.
    
    The register, sea-letter, and Mediterranean passport of the said brig had been left at the Isle of France when Captain Lambert sailed for Bombay, by an accident, as it appears from his testimony, and that of J. H. Cabot, with whom the papers were deposited ; and when boarded' from the British frigate, such papers as they had in their brig were * produced and shown, and the accident by which the other papers had been left at the Isle of France was stated, and on this point the captain of the frigate appeared to be satisfied, and said that the vessel and cargo were clear enough, and might proceed. Then it was suggested to him by his lieutenant, that Columbo was in the way to Bombay; and it might be best to send the brig in for examination ; and after the assent of the crew of the frigate had been obtained, the detention was determined on. But for what particular cause, and whether for any other cause than the want of papers, did not appear otherwise than as stated.
    At Columbo the brig and cargo were libelled, condemned, and sold for the benefit of the captors, before Captain Lambert left the place.
    The cause of the condemnation alleged in the admiralty proceedings is, “ He, the said Jonathan Lambert, being a citizen of the United States of America, and master of the said brig, having during the voyage in which the said brig was captured as aforesaid, carried on, and being at the time of the capture thereof carrying on, an illicit trade between the Isle of France, a colony of the French government, and Bombay, a colony of Great Britain; and on account of the cargo belonging to persons inhabiting within the territories of the French Government; and that the said brigantine and cargo were therefore or otherwise subject, &c., as good and lawful prize.”
    On the 30th of January, 1806, in consequence of intelligence of the capture by the British, received in a letter from Mr. Otis, who had been the mate of the said brig, and had quitted her at the Isle of France, the insured abandoned their interest in the brig and cargo and outfits to the defendants, and accompanied the abandonment with a copy of the said letter. The abandonment having been refused, the said protest by Captain Lambert, received by the insured on the-day of-, was then offered to the defendants in confirmation of the said intelligence.
    * A usage for vessels employed in the south seas in sealing and oiling voyages, to go to the Isle of France, and to seek employment there, during the winter season of the southern latitudes, with the intention of resuming their original destination on the return of temperate weather, was also proved. And it was agreed by the parties, that the Court of Appeals in England had reversed the said sentence of the Vice Admiralty Court, and had decreed a restitution of the said vessel and cargo.
    Upon this evidence the jury were directed, that the delays and other circumstances, proved in the conduct of Captain Lambert, while in the south seas, and in proceeding to the Isle of France, did not operate to discharge the underwriters, or amount in any respect to a deviation from the voyage insured; and that the voyage and employment of the said brig, undertaken at the Isle of France, if not unlawful according to the alleged causes of condemnation, were within the risk insured; and that the insured were entitled to recover for the loss proved, notwithstanding the accident of leaving the vessel’s papers at the Isle of France; and even if that circum stance had produced the detention of the vessel in the first instance; and, reserving the question whether the voyage to Bombay was unlawful, and a justifiable cause of condemnation, the verdict was taken for the plaintiffs, in which the damages were assessed for the vessel according to the valuation in the policy, and for the articles the property of the plaintiffs on board according to the amount and value proved ; the counsel for the plaintiffs assenting to the opinion of the judge who sat in the trial, that after the landing of a part of the outfits for the sealing voyage at the Isle of France, the policy became an open policy as to any remaining part of the cargo and outfits on board the vessel at the time of the capture.
    
      The cause was argued at this term by Prescott for the plaintiffs, and Dexter for the defendants.
    
      Dexter stated three grounds,
    on which the defendants resisted the right of the plaintiffs to recover in this action —1. That there was a deviation from the voyage insured. *2. That the loss was imputable to the vessel’s being found without the documents requisite to prove her neutrality. 3. That the voyage to Bombay was illicit, and a justifiable cause ■ of con damnation.
    1. Although, from the very remarkable description- of the voyage in the policy, it might be thought impossible that a deviation could take place, yet the whole facts in the case show — and such is well known to have been the understanding of the parties to the contract — that the insurance was made upon what is known here under the name of an oiling and sealing voyage; and the policy was intended to cover the property while employed in the usual course of such a voyage, which it was not easy to describe in terms which should comprehend every part of it. Without this or some similar explanation, the policy would cover the vessel, and any cargo she might have on board, during her existence as a vessel. The vessel in this case was then bound to pursue the usual course of voyages of this description. The usage proved is, for vessels to go to the Me of France, and there seek employment during the winter months in southern latitudes. The winter may be considered as commencing in those latitudes in May or June. Yet the vessel loitered, in this case, about the Prince Edward Islands, without any object, and exposed to imminent hazard for want of a harbor, until August, the last winter month. It was a deviation not to go to a place of safety, when practicable, before the storms of winter should come on. Again, the usage proved is, to seek employment at the Me of France during the winter ; but this vessel commenced her voyage to Bombay in the spring, and must have then relinquished all thoughts of pursuing further the sealing and oiling business, in which employment alone, and the usages connected and consistent with it, the policy attached to the vessel and outfits.
    2. The leaving the papers, constituting the evidence of the vessel’s neutrality, was a sufficient and probably the real cause of her detention and condemnation. If this *may be denominated an accident, it can hardly be called an inevitable one. It was gross negligence in the master, among whose primary duties it was to keep constantly on board those documents which are so essential, in a period of war, to prove the neutral character of the ship and her lading. Here was an implied warranty of neutrality ; and it belongs to the nature of such a warranty, not only that the property of the ship be neutral, but that she be so to the purpose of being protected, or, in other words, that she have all the requisites to entitle her to the privileges and immunities of ships belonging to the neutral state, whose rights she claims, and this during every part of the voyage.  Without such documents a ship is not seaworthy, and underwriters are not held.
    3. A sufficient cause of capture existed in this case, arising from the illicit commerce which the vessel was found carrying on. The trade of foreigners with the British East India colonies is wholly interdicted, except where a treaty has stipulated its allowance. But the treaty of 1794, under which citizens of the United -States carry on this trade, restricts it to a direct trade between the United States and the colonies. 
       It may be objected that the reversal of the decree of condemnation has deprived the defendants of the benefit of this argument. This observation would have more weight, if the Courts of Admiralty were not known to be more subject to the views of their respective governments, and of course more influenced by political considerations, than courts of another class. It may be true also that the same evidence was not before the Courts of Admiralty as is furnished in the present case.
    
      Prescott
    
    thought it extravagant to object a deviation under a policy of insurance so uncommonly liberal in its description of the voyage insured as this. The plaintiffs certainly intended to protect themselves in the undertaking and prosecution of what the French term little voyages. There is in fact no limit in the policy as to time or place, * excepting only the commencement of the risk at Salem, and the completion or ending of it at the arrival of the ship at her port of discharge in the United States. But supposing that the assured were confined, by the spirit of the contract and the understanding of the. parties, to the precise object of a sealing and oiling voyage, still there was no deviation. The object was kept steadily in view, and pursued as far as the funds would support it; and the voyage to Bombay, which seems most to be relied on to establish a deviation, was undertaken for the purpose of procuring funds for the main purpose of the voyage during the following season.
    As to the loss of the ship’s papers, by which she is said to have lost her neutral character, it may be answered in the first place that here was no warranty of neutrality, nor any representation to that effect, except so far as the fact might be inferred from the assured being known as neutrals to the underwriters. All the positions cited from Marshall relate wholly to cases of express warranty. Where there is no express warranty, nor any representation of neutrality, nor even unless there is an undertaking to that effect contained in the policy itself, there is no obligation on the assured to be furnished with documents of neutrality; but the underwriter takes upon himself all risks, belligerent as well as neutral.  Nor is the want of such documents a sufficient and legal cause of condemnation, even when a ship sails originally without them ; much less when, by accident, as in the case at bar, they are merely lost or mislaid. If they constitute a part of what goes to make up the sea-worthiness of a ship, yet it was never known that where a ship, at the commencement of her voyage, was sea-worthy, and became otherwise by accident in the prosecution of her voyage, that underwriters were thereby discharged from a loss accruing in consequence of such an accident. Here the documents were as much lost by an accident. as if they had been blown overboard, or had perished from being wet. Such accidents * are within the contemplation of every party to a policy of insurance; and wretched indeed would be the condition of the assured, if unavoidable accidents were held sufficient to avoid the contract which was intended to protect and indemnify them.
    As to the point of illicit trade-Here Prescott was informed by the Court that he need not argue this point.
    
      
      
        Marshall, 317, 319.
    
    
      
      
        Art. 13.
    
    
      
       7 East's Rep. 367, Dawson & Al. vs. Atty. — 2 Johns. Rep. 157, Elting & Al. vs. Scott & Al. — 1 Caines's Rep. 217, Barnewall vs. Church.
    
   The action stood continued nisi after the argument, and at the following March term in Suffolk, the opinion of the Court, (except the Chief Justice and Thatcher,„ J., neither of them having been present at the argument, and Sewall, J., dissenting,) was delivered as follows by

Sedgwick, J.

There are several objections made, as reasons why judgment should not be rendered on the verdict found in this case.

The first, as I understand it, is founded on the unusual terms of the policy, as descriptive of the voyage insured. The insurance, in this respect, is certainly unusual; and, as far as I know, altogether singular. It is a valued policy on the brig Liberty, her cargo and outfits,-" at and from Salem to any port or ports, place or places, backwards and forwards, round the globe, one or more times, during her stay and trade at all such places, until her return to her port of discharge in the United States.”

It is said that this description is so loose and indefinite, that it does not come within the principle that the commencement and termination of a voyage insured must be expressed in the policy. This rule is deduced, as I understand, from the doctrine laid down by Molloy, (B. 2, c. 7, § 14,) that if a ship be insured from London to --, (a blank being left to prevent a surprise by an enemy,) and in her voyage, she happen to be cast away, although there be private instructions for her port, yet the insured must sit down by the loss, by reason of the uncertainty. And to this principle it is understood that the usage of merchants has conformed.

* I think the doctrine of Molloy is sound and reasonable; but I do not think that this is a. case within it. Here the commencement and termination of the voyage are expressed. The commencement is “ at and from Salem,” and the termination is the “ port of discharge in the United States.”

It is said that, according to this understanding, the insurance would continue during the life of the vessel; and that this could not be the meaning of the parties. But why could it not ? It is to be remembered, that during the intermediate time, it was the duty of the assured to keep the vessel tight, stanch, and strong; and that if she should become unfit, from a want of sea-worthiness, to commence and perform any voyage she might undertake, the underwriters would be discharged. Upon this condition, which attaches to every contract of this kind, the defendants were willing to assume the risk they did, at a premium of nine per cent, per annum. And I see nothing, in the nature of the transaction, why it was not competent for the parties to enter into such a contract; and more especially, when it is considered that the insurance on the “ cargo and outfits,” when the outward cargo was broken up, would cease to be a valued, and would become an open policy.

It is further said that the voyage insured must be understood as intending a voyage to take seals; and when that business was accomplished, to return to the United States. — If such were the intention, it might and ought to have been expressed; whereas, in the words the parties have used, there is nothing from which such an intention can be collected, but the contrary. Instead of such a voyage, the assured were at liberty to go “ to any port or ports, place or places, backwards and forwards, round the globe one or more times.”

It was further insisted that from the whole evidence it is manifest that it was known to the parties, that one object of the voyage, at least, was the taking of seals in the south seas. This is admitted; and it is said that the arrival at Prince Edward’s Islands, the intended place of this business, *the latter part of May, or the beginning of June, being the winter season in that latitude of the globe, was an improper season, and that this manner of performing the voyage discharged the underwriters. I assent to the principle, on which this objection is founded. It is, that in contracts of insurance, the voyage is to be performed in such a manner, that the underwriters are responsible for no extraordinary risks, which were not contemplated, and which may be unnecessarily incurred. I am not sufficiently acquainted with the facts, to determine whether that was the case in this instance; but I think it is a sufficient answer to this objection, that this purpose of the voyage was known; that the policy was dated the 30th of October, when it is to be presumed the vessel was at Salem, preparing for her voyage; and that she sailed in the ensuing November. The time of her sailing, then, and her consequent arrival at her port of destination, cannot be objected to by the defendants; as they must be presumed to understand the circumstances of the voyage insured, and to assume the ordinary risks attending it.

Another objection made to the plaintiff’s right to recover is, that there was a deviation. This objection, as to the strict, literal meaning of deviation, was in this case hardly possible; for, as has been already shown, the assured were protected by this policy in going to all ports and places, backwards and forwards, and round the globe, as often as they pleased.

But it is said, here was delay, in the nature of deviation, which will avoid the policy. — It is difficult to conceive how mere delay, or sailing in one direction more than another, when the assured had a right to sail any where, should discharge the underwriters. This insurance, as to its termination, was not an insurance upon time; for it was to terminate whenever the brigantine should arrive in the United States. It was not an insurance of any definite voyage or voyages. It was anomalous, — authorizing the assured to go to any and every part of the globe; and *in every place equally protecting the property, wherever it might be, unless greater than ordinary danger was unnecessarily incurred. Such a case seems to exclude the possibility of a deviation merely by delay, or by sailing in pursuit of any unlawful commercial object.

But in this case I do not perceive any unnecessary delay. After being unsuccessful in the endeavor to take seals, on Prince Edward’s Islands, they sailed for the Crozette Islands; but, after searching a month, were unable to find them. There is no evidence, by which it can be inferred, that this was owing to the ignorance or want of skill of the master. The residue of the time, until the brig sailed for the Isle of France, was consumed in regaining Prince Edward’s Islands, after being blown off, and in attempts to get water, and to find men, who had been sent on shore for that purpose.

Another objection arises from a note at the bottom of the policy, by which the underwriters were to be exempt from “ any loss that might take place for illicit or contraband trade, with or by any person whatever.”

It would be impossible to get over this objection, did the case rest solely on the capture, and the decree of the Court of Vice Admiralty at Colimbo. But that decree, which condemned the vessel for carrying on illicit trade, was reversed by the Court of Appeals in England, and restoration ultimately decreed; so that there is a final decree, in a court of the captors, that the charge of illicit trade could not be supported, as a ground of condemnation ; and this is a conclusive answer to this objection.

The last objection is, that the leaving of the papers at the Isle of France (which is said to have been the cause of the capture) was the fault of the master; and that for this the underwriters are not responsible.

The question, whether the want of papers was the cause of the capture, was not ascertained by the jury; it not being put to them. But from the facts, which are reported, there is reason to believe that to be the case. There is no * suggestian of any fact, from which it can be inferred that the capture was for any other cause. The want of papers was noticed by the commander of the frigate; and although he appeared to be satisfied on this point, by the account which the master of the brig gave of the cause of the accident by which the papers were lost, yet the suggestion of the lieutenant, that Columho was in the way to Bombay, and that it might be best to send the brig in for examination, seems to have no other foundation than the want of papers. When the brig was carried in, she was, contrary to the expectation of the commander of the frigate, condemned.

The important papers, which were left behind at the Isle of France, were the sea-letter and the register; for I make no account of the Mediterranean passport. The sea-letter specifies the nature and quantity of the cargo, the place from which it comes, and its destination. The register is the evidence of property, and shows that the vessel really belongs to a neutral country. Although, by the law of nations, the want of documents, which are usually provided for vessels, and ought to be on board of them, will not amount to conclusive evidence against a vessel’s neutrality, because not absolutely inconsistent with it; yet prudence requires that they should always be at hand, when necessary to prevent a capture from a suspicion, which may justly be excited by a want of them. For even Hubner (Part 1, c. 3, <§> 10) admits that the proof of property, which in this case is the register, is so essential to every neutral vessel for the prevention of frauds, that those which sail without it have no reason to complain, if they are interrupted in their voyages tad their neutrality disputed.

There was, then, in this case, a reasonable ground of capture; although, as is proved by the final decree, there was none of condemnation. There is great reason to believe that this capture was for want of papers; and if that excuses the underwriters, it is important that it should be ascertained; and that question depends upon this, whether a capture for want of papers, which might be and ought * to be on board, is within the contract of insurance as a peril insured against ?

The only loss, for which a remedy is sought in this case, was occasioned by the capture; and in deciding on the merits of the action, it is proper that we should assume it as a fact, that the capture was occasioned by the want of papers, provided that will discharge the underwriters. For that purpose the case ought to be sent to a new trial, because at present we are ignorant of a fact, material to be known to decide on the merits of the cause.

The rule of construction in this case is laid down by Park with great accuracy. He says, “ Although courts in this case, as in all others, will endeavor to give effect to this species of contract, by a liberal and equitable construction, yet they will be cautious not to extend the principle of construction so far as to say that the acts of the parties shall be made to operate beyond their intention; and therefore they will attend to the words of the contract, and see that the loss, which has proved to have happened, is really one of those risks against which the underwriter has insured.”

Let it be again remembered that the ground, on which we pro ■ ceed in this investigation, is that the capture, which is the cause of the loss, was in this case occasioned solely by the want of papers, which had been in the possession of the master, and which, through his neglect, were left behind at the Isle of France. It cannot be pretended that this neglect is a risk escpressly insured against. It is not a peril of the sea; it is not a detention by a superior force ; it is -not an assailing of thieves, nor any other risk assumed by the insurer; and if it rests upon him, it must be by implication resulting from the nature of the transaction.

It is the duty of the owner to see that he intrusts the property insured with a man of competent skill, prudence, and discretion. He is responsible for all losses or damage to the goods committed to his charge, which arise from his negligence, ignorance, or wilful misconduct; and, as he is * responsible to the owner in all such instances, the underwriter is not in any of them, excepting only in such cases of wilful misconduct as amount to barratry, when that is specially insured against by the underwriter. Now, it was owing solely to the negligence of the master, in the case under consideration, that the papers were left behind at the Isle of France; and the consequence seems irresistible, that if that was the cause of the loss, the underwriters are not responsible.

The principle of an implied warranty on the part of the assured, that every thing shall be done to prevent a loss, pervades the whole subject of marine insurance; or, in other words, that the insurer shall be responsible for no loss, but such as is occasioned by some of the perils, which, according to a fair construction of the contract, was in the understanding of the parties insured against. Hence is the principle, that the insurer shall answer for no loss resulting from the gross negligence or ignorance of the master, or from the want of a competent crew; hence, also, the insurer is not liable for any loss or damage, which may happen to goods from any fault or defect of the ship, not arising from the violence of the wind or sea, or from an accident or misfortune in the voyage, but from some latent defect before she sailed; hence, too, there is an implied warranty that the ship shall proceed in the usual and common route, and therefore a deviation from it discharges the underwriter.

To show the obligation which rests on the assured, his duty in the case of a ship warranted neutral is remarkable, and analogous to the case before us. In such case it is a settled rule, that the assured, in order to comply with his warranty, must not only maintain the property to be neutral, but so conduct himself towards the belligerent parties, as not to forfeit his neutrality. He must pursue the conduct, and preserve the character of a neutral; and for that purpose must furnish himself, and keep in his possession, the ordinary evidence of his neutrality ; unless * deprived of it by some inevitable misfortune. Now, I cannot distinguish that case from this, as to the obligation which rests on the assured.

To show with what strictness the assured are holden to perform whatever is incumbent on them, as means of safety to the property insured, the case of Law vs. Hollingsworth is directly in point. In that case the loss happened in sailing up the River Thames. No pilot was taken on board; and it was determined that this neglect discharged the underwriters; although it did not appear that the loss was directly imputable to a want of skill in those who navigated the vessel; because the assured cannot recover, unless they equip the ship with every thing necessary to her during the voyage. The great principle, on which every case of this kind ought to turn, is laid down in that case very concisely and perspicuously, by the court. Lord Kenyon said, that “ the assured cannot recover on a policy of assurance, unless they equip the ship with every thing necessary to her navigation during the voyage ; the ship herself must be sea-worthy ; she must have a sufficient crew, and a master and pilot of competent skill.”

The case under consideration is much stronger than that of Law vs. Hollingsioorth, inasmuch as in that the negligence of the captain was not the cause of the loss, but in this, but for the negligence of the master, no loss would have happened,

The case of Rich vs. Parker was determined on the same principle. — In that case the ship was ' warranted to be American property. She was so in fact. She had not on board a passport, as required by the treaty between the United States and France; and although the ship suffered no inconvenience for the want of such passport during the voyage, yet it was determined that not having it on board discharged the underwriters. The same principle had previously governed the decision of the court in the case of Barzillai vs. Lewis, as it did also in that of Farmer vs. Legg.

* I will mention only one case more — that of Denison vs. Modigliani. After the ship and cargo were insured, the assured requested of the underwriters leave to take out a general letter of marque. This was refused, but afterwards taken out. The court decided that this avoided the policy, although the loss was not occasioned by it. It is true, that this decision is called in question by Marshall, and perhaps with good reason. He does not, however, deny the principle upon which it was determined, but its application. The principle is, that the assured shall do nothing, by which the risk insured against shall be increased ; bui Marshall thinks that the taking out of the letter of marque did not increase the risk.

By these cases, the respective duties of the underwriters and the assured seem to be clearly pointed out. The underwriter is to indemnify for any loss, which fairly takes place from any of the risks insured against; and the assured is to see to it, that the insurer is exposed to nothing beyond those risks ; and that they shall not be increased b.y his own misconduct or negligence, or that of the master or crew. And the underwriter in those cases is discharged, although the misconduct or negligence is not the cause of the loss.

This principle governed all the cases which I have cited or referred to upon this point. They are, therefore, much stronger than the case before us; for here the negligence of the master, in leaving the papers at the Isle of France, was the cause, and the sole cause, of the loss.

There were two cases cited in the argument, which were supposed to be in opposition to the rule, which I have endeavored to establish. In the case of Dawson vs. Atty, goods were insured on board a certain ship generally by her name, without any addition of country, and she was not represented to be of any particular country at the time the policy was subscribed; although she was in fact an American. * It was determined, that it was not necessary that she should be documented as such; and that in case of capture by a foreign state, for want of the documents required by a treaty between that state and her own, the owner of the goods may recover against the underwriters. In that case it was evident, that the neutrality of the vessel was not a consideration with the underwriter, who was willing to assume the risks independently of that circumstance, and there was no opinion of the court why he should not be holden by his contract.

In the case of Elting & Al. vs. Scott & Al., the court, although they did not incline to give a decisive opinion, were inclined to believe, that when the national character of a vessel is not warranted or represented, it is not incumbent on the assured to show that he had a sea-letter, or other papers required by the laws of the country, or by treaties with foreign nations. Even an inclination of opinion by that court is entitled to respect; but it is sufficient to observe, that the case referred to differs widely, in its prominent features, from the case before us. Here the inquiry is, whether a loss, which was occasioned solely by the negligence of the master, be a loss for which the underwriters are responsible, as being a risk insured against. I cannot think it is, and am therefore of opinion that there should be a new trial,

New trial ordered.

Note. After the above opinion was pronounced, Sewall, J., observed, that he did not concur therein, but thought it unnecessary then to give at large the reasons of the opinion he entertained in the cause, as the action might, probably, come again before the Court, after the new trial should have been had 
      
      Í4I Page 61, 62.
     
      
       7 D. & E. 160.
     
      
      
        а) [The case of Law vs. Hollingsworth did not proceed on the ground of negligence, but of unseaworthiness. (1 Marsh. Ins. 3d ed. p. 160.) In Rich vs. Parker, and Barzillai vs. Lewis, the warranty was not complied with by the assured. (1 Marsh. 412 .—420.) In Farmer vs. Legg, the ship was not navigated according to law. (1 Marsh. 171, 3d ed.) Denison vs. Modigliani was decided on the ground that the risk had been changed, or altered, after the execution of the policy, without the consent of the underwriters. (1 Marsh. 285, 3d ed.) — Ed.]
     
      
      б) 7 D. & E. 705.
     
      
      
        Park, 358. — Marsh. 323, S. C.
      
     
      
       7 D. & E. 186.
     
      
      
        Marsh. 194.
     
      
      
        Marsh. 194,195.
     
      
       [The rule, that a loss, the proximate cause of which is a peril insured against, is a loss within the policy, although the remote cause may be negligence of the master or mariners, has been affirmed, both in the English courts and in the highest judicial tribunal in the United States. — The Petapsco Ins. Co. vs. Coulters, 3 Peters, 230. — Busk vs. The Royal Assurance Co., 2 B. & A. 73. — Bishop vs. Pentland, 7 B. & Cr. 214. — 1 M. & R. 49, Show vs. Robberts, 1 N. & P. 279. — Dobson vs. Sotheby, 1 M. & M. 90. —Ed.]
     