
    CLYDE’S CASE. Thomas Clyde v. The United States.
    
      On the Proofs.
    
    
      A barge is in the military service under a charter-party, which provides that the “ war risk will be borne by tbc United States, the marine risk by tlie owners.” She has no propelling power of her own, hut is towed by a Government tug. On the voyage a storm compels both vessels to anchor. During the storm the barge bréales from her anchorage and drifts ashore. The enemy seizes amd burns her, malting prisoner of the master. The owner sues, upon the ground that the loss ivas a war risk.
    
    It is the proximate cause of loss which determines the liability of the insurer, and not the remote. Hence, where the Government, during the war, insures in a charter-party against the uwar risk," and.the vessel is driven by a gale ashore and oaptured by the enemy, the acts of the enemy constitute the proximate cause of loss, and the Government is liable.
    
      The Reporters’ statement of the case:
    The court found the following’ facts:
    On the 26th of February, 1862, the claimant, being the sole owner of the barge “ William E. Hunt,” placed her, under a regular charter-party, in the service of the United States.
    The vessel had no propelling power of her own, but was towed by a steam-tug in Government service. She had on board a cargo of hay, and, by order of the officer in charge of tows at Aquia Creek, was made fast to the steam-tug Atlantic, and started for Baltimore. On her way down a severe storm arose, and the tug anchored the William E. Hunt at Cornfield Harbor, just inside of Point Lookout, in the Potomac. The tug went to anchor at some little distance from the barge, as it would not have been safe for her to have laid alongside in such a sea.
    In the night the storm increased in violence, until it broke the barge from her anchorage. She drifted across the bay to a place called Smith’s Point, on the Virginia shore. The master of the barge made signals, fired guns, and waved lanterns to-attract the attention of the tug that had her in charge, but she did not come to her assistance; and at 3 o’clock of the morning of the 22d January, 1863, the barge, having drifted since 9 o’clock of that night, was driven ashore.
    As soon as it got light enough for any one to see that she was there, a party of rebels came down and took possession of her in the name of the confederate government. The master of the barge was taken prisoner, and the vessel stripped of everything movable, and then burned by the rebels.
    At the time she fell into the hands of the rebels she was estimated to be worth $5,000.
    
      Mr. Thomas J. Durant for the claimant.
    
      Mr. Alexander Johnston (with whom was the Assistant Attorney- General) for the defendants.
   MilligaN, J.,

delivered the opinion of the court:

This case rests alone upon the second count in the claimant’s petition. It was once before heard in this court, and the petition dismissed on a rule of practice then in force, but since abrogated. The claimant appealed, and the judgment, dismissing the petition was reversed, and the cause remanded for re-hearing. (7 C. Cls. R. p., 262.)

The claim made in this count of the petition is for the value of the barge William E. Hunt, which, as shown in the facts herewith filed, was lost while in the service of the United States, under a charter-party.

The charter-party provides, among other things, that the war-risk shall be borne by the United States, and the marine-risk by the owners, &c.

The barge had no propelling power of her own, and soon after the execution of her charter-party she left A quia Creek, under military orders, in charge of the steam-tug Atlantic, bound for Baltimore. She had on board a cargo of hay, and on her way down she encountered a severe storm, which drove her into Cornfield Harbor, just inside of Point Lookout, on the Potomac Eiver, where the tug left her at anchor, and removed a short distance for its own safety.

In the night the storm increased in violence, broke the barge from her moorings, and drifted her across the bay to Smith’s Point, on the Virginia shore, where, at daylight the next morning, she was discovered by a party of rebels, captured, stripped, and burned.

Between the facts of this case and those found in the case of the schooner Mannahasset, (3 C. Cls. R., p. 76,) there is a striking similarity, and the same point that arose in that case is again presented for decision in this.

The Mannahasset, while discharging her cargo to the blockading fleet off Sabine Pass, was driven in a gale within a mile and a half of the shore. Her anchor there held her safe from the perils of the sea.' At daylight she found herself landlocked, with the wind ashore, and unable to beat off. At 7 a. m. she was fired on by the rebel batteries on the shore, and a shot cut away her cable, and she drifted in, was boarded, and destroyed.

Under this state of facts we held the act of the enemy was the proximate cause of her loss, and under her charter-party, which was similar to the one now before us, the defendants liable.

There is no material distinction between the two cases. The William B. Hunt, like the Mannahasset, when she was captured and destroyed, had passed the perils of the sea, and her destruction was doubtlessly due to the action of the enemy.

It is true that the perils of the sea drove her into the place where she encountered the peril that destroyed her; but at the time of her loss she was safe from the former, and was actually destroyed by the latter. The maxim In lege non remota •causa sed próxima speotatur applies here, and in our opinion makes the perils of the sea the remote, and the perils of the war the proximate, cause of her loss.

The Government, being the insurer, under the charter-party, against all such risks, is liable for the value of the vessel at the time of her loss, which we find to be $5,000; and judgment will be entered accordingly.

Nott, J., did not sit in this case, and took no part in the decision.  