
    Jean Baptiste Frichette, Plaintiff and Respondent, v. The State Mutual Fire and Marine Insurance Company, Defendants and Appellants. The same v. The Virginia Mutual Fire and Marine Insurance Company.
    1. A policy of insurance upon a new ship still on her ways drawn in the usual form of a marine policy describing the period of risk “ while being safely launched,” and “ until she be moored twenty-four hours in safety,” and describing the perils insured against by mentioning the usual perils named in a marine policy and “ all other sea-perils, losses and misfortunes to the hurt, detriment or damage of the vessel or any part thereof except those arising from the negligence, fraud, ignorance or misconduct of the master,” is to be construed with reference to the manifest design of the insurance, its special nature and its expressed application, to a vessel while in the process of launching.
    2. By such a policy the vessel is protected, from the moment the launching commences, against accidents in the progress of that work, not arising from negligence, fraud, ignorance or misconduct of those in the charge of the vessel.
    3. Accordingly when a vessel so insured in the process of launching stopped on the ways; in a situation in which she was in a most critical and dangerous position; hqr stern floated, and she strained; and she was in imminent danger of becoming hogged; and after sixteen days by great exertions, by making new ways, putting blocks and stanchions under her and using every other means in their ^power, she was preserved and floated in safety, the insured is entitled to recover the actual expenses necessarily incurred in the preservation of the vessel and in her deliverance from danger of being injured.
    4. It seems that under such a policy there can be no recovery for the expenses of launching, whether great or small, whether the launching was more or less difficult, so Ipng as .the vessel itself was not injured nor in peril from the hazards of the process.
    (Before Bosworth, Hoffman and Woodruff, J. J.)
    Heard, June 10th;
    decided, June 26th, 1858.
    These actions, respectively, were tried before Mr. Justice Hoffman, at Special Term, by mutual consent, without a jury, and, in each, judgment was ordered for the plaintiff.
    
      The actions were brought on policies of insurance, whereby the defendants, respectively, insured the new ship Sebastopol, “while being safely launched at St. Luce, near Quebec;” “beginning the adventure at and from, as aforesaid, and so shall continue, and endure, until the said vessel be safely arrived at, as aforesaid, 'and until she be moored twenty-four hours in good safety.’’ Touching the adventures and perils which the said Insurance Company “is contented to bear and takes upon itself,” “ they are of the seas, men-of-war, fires,” &c., &c. (enumerating the usual perils mentioned in marine policies), “and all other sea perils, losses and misfortunes that have or shall come to the hurt, detriment or damage of the said vessel or any part thereof, except those arising from the negligence, fraud, ignorance or misconduct of the master.”
    The protest produced on the trial, which details the facts upon which the claim to recover under these policies is founded, states that the appearers (ship-carpenters), and others, on the 26th September, 1855, “ proceeded to launch the vessel lying on the stocks, at a place called St. Luce.”........“ That the said vessel started on her ways and, having gone about two-thirds distance, stopped, where she remained until the morning of the twelfth day of October, on which day they succeeded in getting the said vessel afloat (having previously tried to launch her on the eleventh, when she moved forty-eight feet and stopped), owing to the great exertions made in the meantime on the part of the appearers and others, by making new ways, putting blocks and stanchions under her, and using every other means in their power. That the said vessel, at the time she stopped on her ways the first time, was in a most critical qnd dangerous position, her stern floated and she strained; and the said vessel was in imminent danger of becoming hogged.” .... “ That all and singular the losses, injury, damages and detriments which have happened to the°said vessel whilst in the act of larmching,.....were in no way owing to or occasioned by any mismanagement or neglect of any of them, the said appearers, or of any one, but solely and entirely to the perils before mentioned; and that, whilst launching,.....they, and others employed, used their utmost endeavors and exertions to preserve her from loss and damage.”
    
      Upon the trial of the actions judgment was ordered for the plaintiff.
    The defendants appealed to the General Term. The case presented to the General Term contained the following stipulation, viz.:
    “ There being no special finding of facts or conclusions of law herein, the attorneys herein agree that the following question, and no other, arises in these causes, to be submitted to the General Term on the appeals herein, viz.:
    “ Whether the policies (respectively) cover any of the damage caused or expenses incurred by reason of any. of the facts stated in the protest contained in the foregoing case ?”
    
      William Moultrie for the (defendants) appellants.
    I. Tt is well settled, that unless the proximate cause of the loss (i. e., the stoppages), was occasioned by some peril specified in the policy, the underwriters are not liable. The axiom causa próxima non remota spedatur, is now established law. (2 Arnould Ins., §§ 284 et seq., 298, 354; 2 Phil. Ins., § 2132.)
    II. The words in the policy, “while being safely launched” rendered it incumbent on the assured to launch her safely into the water, and off the ways, before the marine risks covered by the policy would attach.
    1. As it appears that the ship herself sustained no injury whatever, of course, no disbursements were made for any repairs to her. She did not strand on the opposite shore, or strike an unknown rock, or encounter any violence of winds or waves, or any other sea-peril intended to be covered by the policy, or any sea-peril usually incident to launching in a narrow river. She was, therefore, safely launched, which completed the obligations of the underwriters.
    2. The appellants did not expressly, or by legal implication, insure or intend to insure the proper construction of the ways, or the skill or intelligence of the ship launcher or master. It was to guard against such possible defects, that the words, “ while being safely launched,” were introduced into their policies.
    3. But even in the absence of the words “ safely,” her stoppages on the ways, without any proximate sea-peril, or other cause covered by the policies, must be ascribed to some defect or insufficiency in the ways, which occasioned her binding or wedging, in her passage down between the jaws or blocks (as was probably the fact), or to ignorance or want of skill on the part of the launcher. Of course, any loss occasioned thereby cannot be charged against the underwriters.
    III. The only perils underwritten by these companies, are clearly specified in their policies. They expressly and exclusively relate to such as are legally known as sea-perils.
    1. The clause in the policy allowing the assured to “ sue, labor and travel for, in and about the defence, safeguard and recovery of the said ship,” only relates to dangers incurred proximately by some peril specified in the policy, or caused by some peril for which the companies would be legally liable, and not to losses arising out of any misfortune or peril, not expressly or by legal implication therein specified, or which may be caused by the acts of the assured himself. It is well settled that no expenses can be recovered unless they are the legal and necessary consequences of the perils insured against.
    2. The policy expressly prohibits any claim for loss arising from the “negligence, fraud, ignorance or misconduct of the master,” or ship launcher. This clearly settles the point. But even in the absence of any such clause, the underwriters, by law, would not be liable. (1 Phil. Ins., § 41; 2 Arnould Ins., § 287.)
    3. The learned Judge below erred in saying that the policy covered “ all other perils.” On the contrary, this policy refers only to “all other sea perils.” The word “sea” probably escaped his attention, as many policies in use do not contain it.
    4 But even the absence of the word “sea,” in such case, the general clause “all other perils,” referred to by the learned Judge, would not embrace a case like the present. Such a clause has been held to cover only “ other perils of a Wee hind. (1 Phil. Ins., § 1126; 1 Arnould Ins., § 13.)
    5. Before the assured can recover, he must show affirmatively that the loss was occasioned directly by some peril specified in the policy, which he has not done.
    6. Even if the vessel had been hogged or totally lost by reason of her stoppages, the underwriters would not be liable if such stoppages were occasioned by the fault of the assured, or by some peril not underwritten in the policy. Nor would they be liable for any expense attending the prevention of any such damage or loss.
    IY. H the ways were defective or insufficient, or the master or ship launcher incompetent, or there was a lack of men or materials, at the time of her original starting, the vessel could not be legally considered in a seaworthy condition, and the underwriters would not be legally liable.
    1. That the ways were defective, or the launcher, his assistants, or the materials were insufficient, is sufficiently proven by the fact of her stopping without any apparent cause, and without the presence of any peril insured against in the policy. It was incumbent on the assured to rebut this necessary presumption, by showing to the contrary, which he has not done. The implied warranty of seaworthiness is imperative. (1 Phil. Ins., § 695, et seq.; 1 Arnould Ins., § 243, et seq.)
    
    2. An examination of the list of expenses, incurred in restarting her, clearly shows that they related only to the “ ways ” and to supplying their defects, and not to any repairs upon the vessel herself. The protest itself admits that such expenses were incurred in making “new ways” and “putting blocks and' stanchions under her. ” There can hardly be any question, therefore, on this point.
    3. These expenses are usually incident to ship launching, and the assured has no more right to charge them against the underwriters, than he would have to charge the ordinary wages of his carpenters, or the cost of the appliances usual and necessary to a launch where no accident had occurred.
    4. A new ship, insured “while launching,” can only be legally considered unseaworthy when she rests upon insufficient ways, or is stopped or injured by the ignorance or want of skiH in the ship launcher. Such unseaworthiness clearly exonerates the underwriters.
    
      William, Stanley, for the (plaintiff) respondent.
    I. The policy covered the risk on account of which the expenses were incurred.
    The policy is in one respect peculiar. It is a voyage policy. The voyage is from the top of the ways to the place where the ship is to be moored. The time is, “ while being launched,” “ and until twenty-four hours afterwards.” The risks covered by the policy which are material to this case were during this period.
    1. Of the seas, &c.
    2. All other sea-perils, losses and misfortunes, that should come to the hurt, detriment or damage of the said vessel, &o.
    In case of any loss or misfortune, “ it was lawful and necessary for the assured to labor in and about the defense, safeguard and recovery of the said vessel ” to the charges whereof the defendant agreed “ to contribute.”
    The question is, then, was not this vessel in a sea-peril, and were not the expenses incurred in and about her safeguard and defense while in such peril ?
    
      a. She was in peril of some kind when these extraordinary expenses were incurred. She was.in great peril. It is alleged in the complaint, and not denied in the answer.
    5. This peril was a sea-peril, to wit: the peril of the vessel being hogged, broken-backed by the force of the sea, her bow being fast, and her stern free and beating about. She was in much greater peril from the seas when half than when wholly afloat. Such peril was as much a sea-peril as any she could experience in mid ocean, and was the identical peril principally on account of which the insurance was effected.
    c. The expenses were incurred for the defense and safeguard of the ship. The ship being in this peril, an extraordinary expense of $2,000 was immediately incurred by plaintiff to free her from that position of peril. Had she struck upon a rock in the river immediately after leaving the ways, so that she would have been in the same danger of being hogged that she was actually in, and had $2,000 been expended for men and materials to free her, there could be no doubt as to the liability of the defendants. It is impossible to make any reasonable distinction between the two cases. The policy under which the ship was insured makes no exceptions. It is for a voyage until she shall have been launched, and on that voyage she was stranded. Doubtless, in one sense, the expenses were necessary in order to launch her. But if a vessel strikes a rock at sea, the expenses incurred are necessary for her to proceed upon her voyage, but that does not destroy the liability of the underwriter. We say, then, that by the very terms of the policy, the defendants insured the plaintiff’s ship against losses occurring from perils of the seas, and agreed to contribute to the charges which plaintiff might incur while laboring for the defense and safeguard of the ship while she should be in such peril. The Sebastopol was in such a peril, and the expenses claimed were thus incurred. It is not necessary that a ship should be actually injured in order to make the underwriter hable. The assured may recover from the underwriter in respect of any extraordinary expense which he has been necessitated to incur in consequence of any of the perils insured against. (2 Arnould Ins. p. 852, § 816.) The expense of getting a stranded vessel afloat is chargeable to the underwriters. (1 Hagens, p. 76, § 64; 1 Phillips Ins., p. 688.) This vessel was stranded on her voyage on the ways.
    II. The expression in the policy “while being safely launched,” did not render it incumbent on the assured to launch her safely, in order that, or before the policy should attach, or in any event.
    This expression, “while being safely launched,” marks a portion of the time during which the risks are insured. This vessel was, however, “safely launched.” She was in great peril, and these expenses were incurred for her safeguard and protection, while she was being “safely launched.”
   By the Court.

Woodruff, J.

—The subject of the insurance in question was a new vessel, lying on the stocks at St. Luce, on the River St. Lawrence, about to be launched. The object of the contract was' to insure her while being safely launched. This plainly appears upon the face of the policies, and is not denied by the counsel for the defendants.

It is obvious that in making this insurance the defendants have used a form of policy, in most of its provisions, suited to an insurance upon a sea-going vessel, and doubtless a form in use by them for such insurances. They have, however, in describing the period of insurance, made it expressly applicable to the vessel while being launched. While, then, there are numerous provisions in the policies which from the nature of the case can have no application to a vessel while undergoing that process and which it is unnecessary to notice; they have adopted some which are, in their terms, suited to the special nature of the risk insured against. And in giving a construction to the contract we are bound to look at the object which the parties had in view and to give effect to the terms employed, so far as they can be sensibly applied to such an insurance.

This view of the subject enables us, and indeed requires us, to say that the contract reasonably and plainly imports that the defendants insured the vessel while being launched, and until she be moored twenty-four hours in' safety, immediately after such launching, and that such insurance was against the perils attending such launching and until so moored; which are, we think, sufficiently described by the terms “and all other sea-perils, losses and misfortunes that shall come to the hurt, detriment or damage of the said vessel or any part thereof."

To say (as was argued before us), that the terms “ losses and misfortunes ” is to have no meaning other than the same terms would have when applied to a vessel on a voyage at sea would be to lose sight of the special nature of the insurance and its expressed application to a vessel while being launched, and practically to hold that the policy had no effect until after the launching was effected.

We think that it is our duty to give these terms and these policies an application and a signification appropriate to the manifest design of the insurance, and that the vessel was, therefore, covered , by the policies from the moment the launching commenced; and was protected against accidents in the progress of that work, which might happen to the vessel to her hurt or damage, provided (according to the terms of the exception) such hurt or damage did not arise from the negligence, fraud, ignorance or misconduct of those in charge of the vessel.

It is not necessary to the plaintiff’s case, under this construction of the policies, to say that by such a policy the expenses of launching the vessel, or any of them, whether ordinary or extraordinary, are the subject of indemnity. It may, perhaps, be truly said that the defendants neither expressly nor impliedly undertook that the vessel should be launched without difficulty, or that the owners should have the ordinary or average success in their endeavors, or that the vessel should be launched by the first or the second or any particular number of efforts, or that when she began to move on her ways she should not stop, or if she did that the owners should - be indemnified for any expense, whether great or small, in completing the work. And it may be that if the owner’s endeavors to launch the vessel had been wholly unsuccessful, and she had never (notwithstanding the largest expenditure and their utmost endeavors) reached .the water, the defendants would not have been liable for anything, provided, and so long as the vessel remained in safety and in no ' danger of injury.

It is, however, plain, we think, that if in the process, and without negligence, fraud, ignorance or misconduct, the vessel did sustain injury, whether before the vessel reached the water or after she was partially afloat, the insurers were liable.

Indeed, if a narrower construction were given to the policy in respect of the perils insured against, and we were to hold that under the words “ sea-perils, losses and misfortunes that shall come,” &c., no danger was insured against, and no damage provided for, except such as arose from the action of the waters into which she was to be launched; we must still say that for such injury as was caused by the action of those waters while partially floated, and “ while being launched,” the insurers were hable.

This view of the contract leaves little room for further discussion. Although it is stated in the protest that the vessel strained, it does not clearly appear that the vessel suffered any actual injury, and if, in all cases, it were essential that actual damage should come to a vessel before the insured could recover anything, there would here be no title in the plaintiff to recover. But it is a familiar principle that when a peril insured against is actually encountered, and while in the “jaws of the peril” sacrifices are made, and expenses are incurred to avert the impending danger and save the ship, those sacrifices and those expenses are covered by the insurance, although they may avail to deliver the ship in perfect safety and without the slightest injury to herself. The whole -doctrine of the liability of insurers for general average charges,, proceeds upon this principle; and that liability is in no wise impaired by the fact that such sacrifices and expenses prove sufficient to save the vessel from any injury greater or less, so that she be not, in fact, lost. Indeed, the contract of the insurer is to indemnify against losses by the peril insured against, and not simply and merely against losses by actual-injury to the subject of the insurance by that peril.

It appears then by the protest in evidence that in the process of launching the insured vessel came to a situation, in no wise owing to or occasioned by the mismanagement or neglect of the persons having charge of the work or any of them, and notwithstanding their utmost endeavors and exertions to preserve her from loss or danger, in which situation she was in a most critical and dangerous position, her stern floated and she strained, and was in imminent danger of becoming hogged. To say that the insurance did not protect her in such a situation, and provide for whatever sacrifices were necessary to effect her deliverance from the actual danger of being injured, would be to hold that the policies were little better than waste paper, and that the parties were acting under a delusion when they entered into the contract.

On this subject we cannot hesitate. The expenses which were -necessarily incurred in the mere preservation of the ship from actual injury from the danger then impending were we think covered, as plainly as the expenses of getting a vessel off the rocks would be under an ordinary policy, if she were driven thereon by a storm at sea. And that the circumstance that she was delivered from her situation without being in fact injured would no more affect the right of recovery in the one case than the other.

What items of expense incurred by the owners and embraced in the recovery herein, were to be deemed a part of the expense of launching (if any), and whether the recovery embraces any charges which were not strictly necessary for the preservation of the vessel from injury, we cannot inquire. In the form in which the case is presented, by stipulation between the parties, we have only to say whether the policies cover any of the damage caused or 'expenses incurred by reason of any of the facts stated in the protest? If they do we are therefore to assume that the expenses have been properly adjusted."

The vessel was in a most critical and dangerous position; her stem floated and she strained, and was in imminent danger of becoming hogged. The utmost endeavors and exertions were employed to preserve her; means specified in the protest were resorted to for that purpose; although we cannot determine by the protest alone, how much expense this involved, we must necessarily say that for the expense which was necessary and solely incurred for the preservation of the vessel, the insurers are liable.

If any portion of the expenses incurred were such as were necessary to complete the work of launching and would have been equally necessary had the vessel been in no danger when she stopped on her ways, the manner in which the case comes before us will not permit us to detect it. We must assume that on the trial proper discrimination was made, and our duty is performed by an affirmative answer to the question submitted to our consideration.

The judgments must be affirmed, with costs.

Ordered accordingly.  