
    Daniel D. Baker et al. v. The United States.
    
      On the Proofs.
    
    
      The schooner Mannahasset is chartered to the defendants during the rebellion. It is agreed that “ the war risk on the vessel, amounting to $13,000, be assumed by the government.” While off Sabine Pass discharging her cargo to the blockading fleet, she drags her anchors in a gale during the night to within a mile and a half of the shore. Her anchors then hold her and she is safe from the perils of the sea. At daylight she is land-locked with the wind ashore, and unable to beat off. At 7 a. m. the rebel batteries open upon her. A shot cuts away her cable and the schooner goes ashore, where she is boarded and destroyed by the enemy and her captain and crew held as prisoners. ,
    
    It is the proximate cause of loss which determines the liability of the insurer, and not the remote. Hence, where the defendants during the war of the rebellion insure in the charter-party of a schooner against the “ war risk,” and she is driven by a gale within range of the enemy’s batteries, hut is then at anchor and safe from the perils of the sea, after which the batteries open upon her and destroy her ground tackle, so that she goes ashore and is captured, the acts of the enemy constitute the proximate cause of the loss and the defendants are liable.
    Mr. T. J. D. Fuller for the claimants :
    The remote cause of the loss of. the vessel was the perils of the sea. The approximate cause of the loss was the rebel batteries and the rebel forces, hostile in their character.
    
      The approximate and not the remote cause of loss determines upon which of the two insurers the loss must fall. Green v. Emslie, Peakes N. P. Cases, p. 212; 12 East. Reports, p 648; Patrick v. Insurance Co., 114, John. R., pp. 14 and 21.
    The legal presumption is, that the vessel was well apparelled and tackled and manned by a skilful and competent crew. That all was done that could be to save the vessel. That no act of barratry was committed by the master or crew. There can be no barratry without fraud or crime. 19 Pick. Rep., p. 34.
    The war risk attaches to a capture of the vessel by the public enemy, unless the capture be brought about by the barratry of the master and crew. The hirer of a vessel is so far the owner that he cannot commit barratry. 16 Mass. Rep., p. 336.
    Criminal intent or fraud in the master is the very essence of bar-ratry. Mere negligence or unskilfulness does not amount to it. Finn v. Rizel, 7 Term Rep., p. 505; Mclntire v. Brown, 1 John., p. 229.
    The liability of the United States for the capture of the vessel, whether she was chartered or impressed, is fixed by the statute. (See act of March 3, 1849; and act of March 3, 1863, in addition.)
    The Solicitor for the defendants :
    In this case the ownership and command of the schooner concurred. Her owners became their own insurers as to the dangers of the sea, the government assuming the war risk.
    The questions that would arise as to barratry and negligence, were this a controversy between the owners and the insurers, cannot be raised here. It cannot be maintained that where the owner and the master were the' same the defendants can be held liable, notwithstanding negligence.
    It is contended in this ease that it was the duty of the master of the schooner, knowing the proximity of the rebel batteries, to have immediately, when the storm arose, placed the schooner beyond the risk of being fired upon. It was not enough to have secured for her a safe position against the dangers of the sea. She should have been removed as far from the shore as possible during the continuance of the storm. If she was not in a condition to do this, it must have been because she was not sufficiently staunch or well manned and apparelled. If either of these facts existed, the government is relieved from liability. If they did not exist, the master was guilty of negligence in subjecting the schooner to exposure.
    
      The claimant relies upon the maxim, “In jure non remota causa sed próxima spectaturAs paraphrased by Lord Bacon, Law Tracts : “ It were infinite for the law to consider the causes of causes, and their impulsions one of another; therefore it contenteth itself with the immediate cause, and judgeth of acts by this, without looking to any further degree.”
    In the practical application of this maxim the authorities are contradictory, both in England and America. The case of Peters v. The Warren Insurance Company, 14 Peters, known as the case of The Paragon, states the law as held by the highest tribunal of this country. This case was argued by Mr. Parsons, the distinguished author of various elementary treatises, on the one side, and by Mr. Webster on the other. The question was, whether a contributory amount paid by the Paragon under a decree of the marine court of Hamburgh, on account of a collision, was a direct, positive, and proximate effect from the accident, in such sense as to render the defendants, who had insured against the perils of the sea, liable.
    Mr. Parsons contended that the law of Hamburgh under which the decree of contribution was made was the proximate cause, and the collision the remote cause. He mainly relied upon the case of De Vaux v. Salvador, 4 Ad. and E., 420, decided by Lord Denman.
    After giving different instances where the maxim “ Causa próxima non remota spectatur ” had been modified, Judge Story, (p. 110,) in delivering the opinion of the court, says :
    “ Suppose a vessel, which is insured against fire only, is struck by lightning and takes fire; and in order to save her from utter destruction she is scuttled and sunk in shoal water, and she cannot afterwards be raised : it might be said that the immediate cause of the loss was the scuttling; but in a judicial sense it would be attributed to the fire, and the underwriters would be held liable therefor. Suppose another case — that of a vessel insured against all perils by fire; and she is shipwrecked in a storm on a barbarous coast, and is there burnt by the natives: it might be said that the proximate cause of the loss was the fire; and yet there is no doubt that the underwriters would be held ' liable on the policy, upon the ground that the vessel had never been delivered from the original perils of the shipwreck.”
    Again, p. 110:
    “ If any nation should be so regardless of the principles of natural justice as to declare that a vessel driven on shore by a storm should be forfeited because its revenue laws were thereby violated, it would then deserve consideration whether the underwriters would not be liable for the loss as an inevitable incident to the shipwreck.”'
    This maxim was afterwards discussed by the Supreme Court in the case of The General Mutual Insurance Company v. Sherwood, 14 How., 361. The case of the Paragon was referred to and its doctrine reaffirmed.
    The maxim was discussed with .great learning in the case of Thompson v. Hopper, 6 Ellis & Blackburn, 947. Lord Campbell, in delivering the opinion of the Court of Queen’s Bench in this case, cites with approval those cases where the “ direct cause of the cause of the damage was regarded.” The decision of the Queen’s Bench was subsequently overruled upon appeal in the Exchequer Chamber, (Ellis, Blackburn & Ellis 1038,) but the weight of authority is in favor of the first decision. The judges of the Queen’s Bench were unanimous, and only four of the seven judges of the Exchequer Chamber concurred in sustaining the proposition of the judges at nisi prius, that you cannot go behind the last and proximate cause of the loss.
    It is submitted that the highest tribunal of this country has decided that courts can regard what Lord Campbell terms “ the cause of the cause ” of the loss, and that where the loss is the inevitable result of that cause, they may consider it as the true immediate cause, and not one of those remote impulsions which might or might not have produced the disaster.
    In this case, after the schooner was disabled by a storm which had continued for more than twenty-four hours, she anchored within three-quarters of a mile of the rebel batteries. Was there a human probability that she would not be fired upon % And was not her loss as inevitable as if she had been dashed upon the rocks ? If she had been driven upon the coast and wrecked, the rock against which she struck would not be regarded as the proximate cause of the loss, but the storm that impelled her upon it. According to the laws of causation, admitted in the calculation of chances, the probability of escape from loss when anchored within three-fourths of a mile from the batteries of the enemy would be no greater than from a collision with the rocks that might be on the same coast.
    It is submitted that neither the act of March 3, 1849, nor the act of March 3, 1863, referred to by counsel for claimants, governs this case. In this case there was.a contract .by which the claimants assumed the perils of the sea. By a well-known rule of law, such a contract would deprive-the claimant .of the benefit .of the statute, even if it existed to the extent claimed by counsel for the claimants, which is not admitted.
   Loring, J.,

delivered the opinion, of the court:

The petitioners claim of the United States $13,000 upon a charter-party which they allege was made between the United States of the first part, and the petitioners of the second part, on the 29th August, 1863, in the terms following :

“United States Ship Pensacola,
New Orleans, August 29, 1863.
“This charter-party, entered into this 29th day of August, 1863, between. Commodore Henry H. Bell, United States navy, commanding western gulf squadron, of the first part, and Bichard Ryder, master of the schooner Mannahasset, of the second part, witnesseth : That the party of the second part, for and in consideration of the sum of fifty dollars per day, to be paid to him by the party of the first part, does hereby agree to take to the coast of Louisiana and Texas three hundred and twenty-five tons coal, and deliver the same to and subject to the order of the senior naval officer. It is further agreed by the party of the first part, that the war risk on the above-named vessel, amounting to thirteen thousand dollars, is assumed by the government of the United States until her discharge from this charter; and that all expenses of pilotage and towage, and quarantine fees, whilst under this charter, shall be paid by the party of the first part.
“It is also understood by the contracting parties, that this contract is to terminate upon the return of the said vessel at the port of New Orleans, and that all damages incurred to her whilst under this charter, and not caused by her own neglect or fault, shall be made good and compensated for by the party of the first part, the dangers of the sea excepted.
“H. H. Bell,
Commodore Commanding United States Squadron pro tern.
“ BichaRD Ryder,
“ Master of Schooner Mannahasset

And the court find the facts to be—

That the said charter-party was made between the said parties.

That at the date of said charter-party the Mannahasset was in the port of New Orleans, and was owned then, and until her loss, by the petitioners in the proportions following, viz:

Daniel D. Baker.owner of.. 7-16

N. P. Mann, jr., A. J. Mann, N. P. Mann, copartners-do.... 4-16

E. Bacon and William P. Russell -■.do- 2-16

Daniel T. Lamson and Joshua Weston .. do- 1-16

Richard Ryder owner of.. 1-16

Zenas Atkins. -do- 1-32

Joseph Ryder. -do- 1-64

James Stetson ....do- 1-64

16-16

That upon the execution of the said charter-party, the Mannahasset entered upon the service specified in it, and started from New Orleans on the 3d of September, 1863, with a full cargo of 360 tons of coal, and on the 8th of September she arrived off Sabine Pass, where the fleet of the United States then were, and reported to its commander,, and by his orders came to anchor outside of the fleet and about six-miles from the shore, and laid there two days to deliver coal to the vessels of the fleet as it was called for; she was then ordered by said commander to anchor nine miles from the shore, and she laid there till the 28th day of September, and delivered to vessels of the fleet about 240 tons of coal, leaving about 90 tons of coal undischarged ; that while lying at a single anchor on the afternoon of the 28th of September, the weather, which had been pleasant, changed, and a storm.-, approached, for which the vessel was immediately prepared; her yards-, and light spars were sent down, her sails were housed, and everything-made snug, so as to give the wind the least advantage, and her sheet anchor, or best bower, was let go, and the chains of both anchors paid out to their full length and kept from fouling. The storm increased, from 6 p. m., and blew a gale all night, with wind and hail, the chain of the best bower or sheet anchor broke, and the vessel went adrift; -, the stream anchor was then let go, and the whole length of its cable was paid out, and the vessel dragged her anchors to within a mile and, a half of the shore, where the water was shoaler, and she was partially/ land-locked. Between 3 and 4 a. m., her anchors caught and held' her, and she was safe and uninjured except in the loss of her sheet-anchor. She so remained for about four hours ; .at daylight she set a. signal of distress to attract the attention of the gunboats of the fleet; but it was not noticed, and the wind, though moderated, still blew heavily, and prevented her from making sail. Between 7 and 8 a. m., she was fired upon from a rebel battery on the shore, and the second shot cut awaythe cable of the stream anchor, and the schooner fell off,, before the wind, which carried her ashore. She was immediately boarded by the rebels, who captured the vessel, and made. her. crew prisoners; they cut down the masts of the vessel and stripped her, and she was lost to the owners.

That when the charter-party was made, aud until fired upon as stated, the Mannahasset was a staunch and strong vessel, and rated as high as any of her class at that time; that she was well manned, and provided in sails, rigging, and ground tackle in all respects, and well managed in the stormy weather she encountered and resisted.

That when the storm had passed and the vessel was safe from all perils of the sea, she was lost by a shot from the rebel battery cutting her cable, so that she was driven ashore before the wind and was captured, without fault in her master or crew, then or at any time.

That she was worth the sum of $13,000, and was valued at that sum in the charter-party.

And upon the facts found we are of opinion that the Mannahasset was lost by a war risk within the charter-party, and which was to be borne by the United States, and that the petitioners are entitled to recover of the United States the said sum of $13,000, specified in the charter-party, for which judgment is rendered, and will he certified to the petitioners severally in the proportion of their respective interests in said vessel as above stated.

It was contended for the United States that “ the master of the schooner, knowing the proximity of the rebel batteries,” should, when the storm arose, have placed the vessel beyond the risk of being fired upon. But there is nothing in the evidence to show or suggest that he then knew the rebel batteries were there, or had any reason to know it, for he was nine miles from the shore, and they may have been sand batteries merely, and undiscernible till they exhibited themselves by their fire. Besides this, to have got his anchors up when an •increasing storm was blowing upon a lee shore, and the loss of a sail or a spar might have caused the loss of the vessel and crew, was an experiment that had more of peril than promise in it; and he had no reason to doubt the sufficiency of his ground tackle, which was abundant and in good order, and failed only by an accident that could not be foreseen, and which discredits neither his seamanship nor care.

Then the position of the schooner on' the morning of the 29th was not one of the master’s seeking, nor one he could avoid. He was carried there by wind and sea in the darkness of the night; and the evidence is distinct and uncontradicted that until he was fired upon and then the wind, though moderated, was blowing so heavily on to the shore that he could not make sail safely. That he dragged ashore with one anchor down suggests itself that he would have gone ashore in getting both .up. He was then but about a mile from the shore and partially land-locked, and that he could have made an offing from that place is not claimed in the testimony.

It was also contended for the defendants that the vessel was lost altogether or in part by the perils of the sea, of which the United States were not to bear the risk. That the perils of the sea drove the Mannahasset into the place of the peril that destroyed her is true, and that makes the perils of the sea the remote cause of her loss, and not the proximate, and it is the proximate cause of the loss alone which determines the liability of the insurer. And on the morning of the 29th of September the Mannahasset was safe and whole ; the perils of the sea were past before she was fired upon, as completely as if a day or a month had intervened, and a new peril, distinct from the perils of the sea, and different in nature, and a war risk, occurred, and by that she was lost.  