
    CHARLES SNOWDON et al., Respondents v. WILLIAM H. GUION, Appellant.
    
      Marine Insurance.—Perils of the sea. — Construction of the phrase “ directly by a sea.1’—General printed clause in policy as affected by special written clause:
    
    The merits of this case involve a construction of the phrase in the policy “directly by a sea.” The policy had in its printed part the usual clause “touching the adventures and perils which the said assurers are contented to bear and take upon themselves, they are of the seas, &c.” The phrase in view “ directly by a sea ” was in the following written provision, “liable only for loss of animal or animals caused directly by a sea, stranding, sinking, burning or collision, &c.”
    
    Meld, that the word “ seas” in the general provision has no specific or limited reference to the ocean as a body of water. It is in contrast to land, and refers to contingencies of living and trading upon water as distinguished from living and trading on land. The particularization of one of the perils of the sea in a written clause, to which the general clause being printed becomes subordinate or inoperative, will not for that reason, affect the application of the maxim “ causa próxima, non remota spectatur.”
    In the present case the loss happened as follows : The cattle insured were stowed below the upper deck, in the forward steerage and on the forward part of the main deck. On the 18th of February the wind increased to a gale, with a high sea running. The vessel labored and rolled heavily and shipped such quantities of water that the decks were flooded and all the hatches had to be battened down. This condition of things continued for ten days. The cattle were thrown down violently, and in some cases thrown completely out of their stalls and into other stalls on top of other cattle. One hundred and fifty-six bead died from being bruised and from exhaustion, and those not killed were very much bruised and unable to stand upon their legs, so that some had to be hoisted on shore at the end of the voyage. The evidence established that the cause of the death of the cattle, and of their being bruised and unable to stand, •was the severity of the sea, from the continuance of the gale by and from which the cattle were tumbled and tossed about as described, and some evidence was given, tending to show that some of the cattle died from want of air, the hatches being battened down. There was no evidence that any water reached them, or that any suffered injury from the direct action of water upon them.
    
      Decided March 3, 1884.
    
      Held, that the general tossing and laboring of the steamer, that caused the injury to the cattle, and the loss claimed was not the result of a sea in the sense of the policy and its special written clause “liable only for loss of animal or animals caused directly l>y the sea but was the result of the general commotion of the sea and of the winds, and defendants were not liable for the loss.
    Before Sedgwick, Ch. J., and O’Gorman, J.
    This case is an appeal from a judgment entered in favor of the plaintiff upon a verdict of a jury.
    The action was upon a policy of marine insurance against loss of cattle shipped on board the steamer “ Greece,” from New York to London.
    The facts in the case appear in the opinion of the court.
    
      Treadwell Cleveland and Joseph H. Choate, for appellant.
    The contracting parties did not intend that these words, “directly by a sea” should cover a loss, such as that described in the testimony. It is the intention of the parties, the purpose and understanding which they had in common, which must be ascertained and followed by the court (Knapp v. Warner, 57 N. Y. 668; Staperhorst v. Wolff, 35 Super. Ct. 25 (affirmed 65 N. Y. 596); Reading v. Gray, 37 Super Ct. 79; Stokes v. Richnagel, 38 Super. Ct. 368 ; Clark v. N. Y. Life Insurance Co., 64 N. Y. 33 ; White v. Hoyt, 73 N. Y. 508, 511; Reynolds v. Commerce Fire Ins. Co., 47 N. Y. 604; Booth v. Cleveland Mill Co., 74 Id. 81).
    Irrespective of the intention of the parties in using these words, the words themselves 1 ‘ directly by a seaf as distinguished from 1 ‘ the perils of the seaf do not include the perils from which the loss in question happened.
    
      Each word in this added clause must be given its full and appropriate force. The language is :
    1. “Directly” not indirectly. .
    
      2. “A” not “ the sea.”
    3. “ A sea,” not the seas.”
    To construe the words “directly by a sea,” to mean a succession of seas, a storm, or “a heavy sea,” or a cross sea,” or “a violent sea,” as these expressions are used by nautical men, is not to distinguish them from “perils of the seas,” but to make the two expressions mean the same thing.
    If they are to be construed, as meaning such a stormy succession of waves as this vessel met with, why were they put in the policy at all ? Why not make the policy read so that the printed words “perils of the sea” should be in force ?
    The word “sea” was used in contradistinction from “seas,” and in the meaning of the word, as defined by Webster and Worcester, “a wave, a billow, as to ship a sea;” “a high sea or billow, a surge, as a vessel ships a sea ;” and the word “directly ” was used in contradistinction from indirectly, and in the sense of without interposition, as a sea boarding the vessel and killing or drowning the animal, or knocking it up against an obstruction, and thus killing it.
    
      Ira D. Warren, for respondents.
    The defendant became liable on this policy for damages caused “ directly by a sea.” Before these words were inserted in the policy, the defendants were “ liable only for loss of animal or animals caused directly by stranding, sinking, burning or collision, and amounting to 5 per cent.” Had not the above limitation been inserted in the policy, the defendants would have been liable under their policy for “ perils of the seas.”
    We therefore claim that the limitation for loss caused “by perils- of the seas” was so far restored by the words■ inserted that the defendants are liable for any loss caused proximately by a sea, or the sea. 1st. In marine insurance the underwriter only agrees to indemnify against losses caused by the “ direct and violent operation of the perils insured against ” (Arnold on Ins. 657). The risk here assumed was loss “by a sea.” It was not strengthened or weakened or changed by the word “directly,” because the “direct or proximate” operation of the sea would be inferred if the word “ direct ” was left out. 2d. The loss in this case was caused by the direct or proximate action of the sea. “By a sea ” is here meant a wave, or waves, not water in separation, but in bodies, raised by the winds. All the cases hold that a loss resulting from the violent motion of the ship, knocked about by the waves, whether or not one or more intermediate agents come between the material of the ship and the property lost, is a loss by a peril of the sea (Arnold on Ins. 664). Lawrence v. Aberdein (5 Barn. & Ald. 107), was a case where horses and asses were insured, with a stipulation against loss by mortality. In a violent storm they died by severe bruises, lacerations and injuries, caused by the pitching and rolling of the vessel. Held, that it was a loss by a peril of the sea, and not by mortality within the proper meaning of this word, as used in the policy.
    Best, J., says: “Here the injury to the animals arose directly and immediately from the violence of the tempest, or in other words from the perils of the sea.” Gabay v. Lloyd (3 B. & C. 793) was on a policy on horses “warranted free from mortality on the voyage, in consequence of a storm, the horses' broke down the partitions between them, kicking and bruising each other so much that they died. Held, a loss by perils of the sea. Montoya v. London Assurance Co., 6 Exch. 451, the ship was loaded with tobacco and hides. In consequence of bad weather the hides were wetted and became putrid, and damaged the tobacco by the odor, although the water did not touch the tobacco. Held, that the loss of the tobacco was by a peril of the sea. “ Underwriters are liable for a loss arising immediately out of the perils of the sea, such as the wind and waves, although remotely from the mismanagement and negligence of the master and seamen (Walker v. Maitland, 5 B. & A. 171; Bishop v. Pentland, 7 Id. 219). “In case of the concurrence of different causes, to one of which it is necessary to attribute the loss, it is to be attributed to the efficient predominating peril, whether it is or is not in activity at the consummation of the disaster” (1 Phillips on Ins. §§ 1132-1134; Coit v. Smith, 3 Johns. Cas. 16.)
   By the Court.—Sedgwick, Ch. J.

The defendant made a motion for a new trial upon the minutes. The motion was denied, but as no order was entered upon this denial, no appeal from it can be taken and the questions appropriate to a review ef such an order, cannot be examined here.

The merits of the case involve a construction of the phrase in the policy “directly by a sea.”

The policy had in its printed part the usual clause, as to the perils of the seas, that is “ touching the adventures and perils, which the said assurers are contented to bear and take upon themselves, they are of the seas, &c.”

The phrase in view, “directly by a sea,” was in the following written provision, “liable only for loss of animal or animals, caused directly by a sea, stranding, sinking, burning or collision, &c.”

The appellant argues that the phrase was inserted in the general policy, after this particular indorsement was made, and was intended to be applied to future shipments only. The position cannot be maintained. The circumstantial evidence, considered with the conflict of direct evidence, supports the verdict of the jury, on this issue.

As to the construction of the phrase it is first observed that while a peril of loss caused directly by a sea is a particular risk that would have been embraced in the general provision as to perils of the sea, if that had remained effective in the policy, it is not because the word “seas” is the plural of the word sea. ■ Policies generally have “ peril of the seas,” but writers upon insurance and judges, often use as an equivalent “ peril of the sea.” The word “ seas ” in the general provision has no specific or limited reference to the ocean as a body of water. It is contrasted to land. It refers to the peculiarities of the contingencies of living and trading upon water, as distinguished from living and trading upon land. It is certainly true, that the particularizing of one of the perils of the sea, in a written clause, to which the general clause, being printed, becomes subordinate or inoperative, will not, for that reason, affect the application of the maxim, causa próxima non remota spectatur. The full force of this consideration is not inconsistent with ascertaining what particular peril was described, whether it arose in fact, and whether the loss was caused by it.

The definitions of dictionaries seem to give wha.t is the use of the word “sea” among seafarers as well as among people generally. Webster makes sea to mean a wave, a billow, as to ship a sea ; the swell of the ocean in a tempest; motion or agitation of the water’s surface. Falconer’s Marine Dictionary by Burney says: ‘‘ Sea is variously applied by sailors, to a single wave, to the agitation produced by a multitude of waves in a tempest, or to their particular progress or direction. Thus they say, ‘we shippéd a heavy sea, there is a quiet sea in the offing, the sea sets to the southward.’ Hence a ship is said to head the sea, when her course is opposed to the direction or setting of the surges.” This is given after sea is defined as a separate word to mean “ that vast tract of water encompassing the whole earth, more properly called ocean,” and also as another word, “ more properly used, for a particular part of the ocean,” as “The Irish Sea, The Mediterranean Sea, The Baltic Sea, The Bed Sea.”

There may be doubt, that parties to such contract could accurately state the difference between the articles “a” and “ the,” yet if they use one or the other in a way that exhibits a discrimination in fact, that discrimination must have its proper weight.

Writers on language say that the definite article always grows out of a demonstrative pronoun, the indefinite out of the numeral one ; that an or a is the numeral one ; the is the demonstrative that.

The parties meant by a peril of “a sea” not a peril of the sea that might be in the winds as well as in the water, but a risk connected with a movement of the water of the sea. As it was described as a or one sea, the intention was to designate some part of the water, for example a wave, of which there might be several, each of which would be a different object from the general body of water and would involve its peculiar or characteristic risk.

A sea, in the sense of a general agitation of the water or waves, was not meant, because that is a collective term, embracing many waves,, and it ceases to be applicable when the individual waves which compose it are intended to be designated. A loss could not occur from the particulars, considered collectively, but only from their proper individual effects.

I do not mean that the parties confine themselves to a wave specifically, but they intended a definite and separated part of the general body of water, and a risk that would be peculiar to that, and a loss that might be definitely traced from that.

The general rule, that the peril insured against must be the causa próxima of the loss, to justify a recovery, is now to be taken into consideration. In reality this rule gives only a general principle, and furnishes no information as to what is meant by a proximate cause. In this case, it may at this'point be sufficient to say that the particular peril described must be the immediate cause of the loss.

But the use of the word “ directly ” has a relevancy to the special application of the maxim. It is not to be taken as if the parties were giving a definition of the maxim as embodying a general principle. Its connections show that it was not used as a term of art, but as a word descriptive of a possible fact, of a sea not indirectly but directly, in a point-blank manner, as it were, causing the loss. In another aspect it exhibits the intention of the parties in such a light that the maxim must have a strict construction, instead of the liberal construction usual in the eases of insurance. In Tilton v. The Hamiton Fire Ins. Co. (1 Bosw. 378), Judge Dues, said : “Strictly speaking, the proximate cause is that which immediately precedes and directly occasions a loss.”

The meaning of the parties may appear more definitely by a reference to the subject matter of the loss to be insured against. Before making the policy, doubtless the parties had in mind what risks the insurers would take, and what, the insured, under ordinary circumstances. The insurer would not take risks of loss that would arise in the nature of the thing insured in the ordinary situations of a sea voyage (1 Parsons’ Mar. Ins. 541). The memorandum articles are selected on the ground of the likelihood of their being in a different state at the end of the voyage, from that, at the beginning when no extraordinary peril has caused the difference. In this particular case, the ordinary motion of a vessel would be likely to throw animals down and lessen their value or endanger their lives.

In the note (2 Parsons’ Mar. Ins. 94), it is said that the difference of risk pertaining to different kind of goods has been recognized in. insurance business, for, at least, three or four centuries. “ The ordinance published in Florence in 1526, says : 1 That under the name, of merchandise shall not be understood slaves, fruits, horses, corn, wine, salted fish, &c.’ ”

It would be evident, too, that, in extraordinary circumstances, animals would be from the pitching and tossing of a vessel more exposed, than merchandise, to great damage. They would be unable to control their motions when once off their feet and to regain a safe position. This would be due to their conformation. These considerations would prompt a selection of a cause of loss to be insured against, which excludes the contingency of a loss, due, for the most part, to the helplessness of animals that has been referred to, and yet would give indemnity, when loss was suffered directly from it, although then their helplessness, might to a certain, but not great extent, contribute to the final loss. A loss that follows the direct action, upon animals, of a sea, shipped, would as practically as possible distribute between the parties the risks each would be likely and willing to take. This has a further force, when the fact is, that before the words “by a sea’’were inserted, the clause stood “loss caused directly by stranding, sinking, burning or collision and amounting to 5 per cent.”

In the present case, the loss happened from the following circumstances. The cattle were stowed below the upper deck in the forward steerage and on the forward part of the main deck. On February 18 the wind increased to a gale, with a high sea running. The vessel labored and rolled heavily and shipped such quantities of water over all, that the decks were flooded and all the hatches had to be battened down. This state of things continued for ten days, about. The voyage was from February 14 to March 2. The effect upon the cattle was that they were thrown down violently, and in some cases thrown completely out of their stalls. One hundred and fifty-six died from being bruised and from exhaustion. Some of the cattle were tossed out of their stalls and thrown into other stalls on top of other cattle. The master of the vessel testified : “ Q. Was the cattle being tumbled about in the way you have described, the cause of their death ? A. Yes, I consider that it was. Q. What was the cause of the death of the cattle, the whole cause of it % A. The cause of the death of the cattle was the severity of the sea at the time. Q. What was the effect on the cattle that were not killed? A. They were very much bruised and unable to stand on their legs, and some of them had to be hoisted ashore.” There was some evidence tending to show that some of the cattle died from want of air, the hatches having been battened down. None of the cattle suffered injury from any direct action of the water upon them. There was no evidence that any water reached them. I am of opinion that the general tossing and laboring of the steamer, which caused the injury to the animals was not the result of a sea, in the sense of the policy but of the general commotion of the sea and of the winds, and that for these reasons the defendants were not liable for the loss, on the evidence as given.

The learned court was led to the’ opinion that the policy did not value the interest insured because the indorsement did not value but only named an amount insured. It, however, seems to me that the general policy made special provisions that it should be a valued insurance by or through the means of indorsements that should simply contain amounts of insurance. This provision was “ endorsements valued at the same, provided they do not vary from the-more than-per cent., and the sound value at the place- of destination is not to be deemed to exceed-per cent, on purchasing price at the shipping port.” As ■ the blanks for these percentages were not filled in, it is argued that the whole clause was not agreed to. It seems to me, that as the proviso was separable from the rest; and introduced for the benefit of the insurers, it became ineffective for any purpose as a proviso, without affecting the main clause which it followed. There was moreover an independent subsequent clause, which had an unqualified meaning. “The said goods and merchandise hereby insured are valued at as indorsed.” And again, if there be ambiguity, the application made and signed by the insured and signed by the insurers provided for a valued policy in the words, “enter on open policy, &c., $9,500 on i interest, &c., valued at sum insured.” If there be a valued policy, the value of the cattle saved would properly be deducted from the valuation. Under some circumstances, this might call only for a modification of the verdict, but on the whole case there should be a new trial.

Judgment reversed, with costs of appeal to abide event.

O’Gorman, J., concurred.  