Patrick v. Commercial Insurance

Kent, Ch. J.

delivered the opinion of the court. The same question arises here as in the former case, whether the loss of the cargo is to be attributed to the stranding of the ship. But as the cargo was not injured by the stranding, and as no effort was made to take it from the vessel, and as the means of removingat (if necessary) from the vessel, across the Bay of Cadis, to the city, might easily have been procured, it is evident that the loss of the cargo must be imputed to a peril not insured against. It must be attributed wholly to the act of the French Whether we refer the loss to the French violence, or to the Spanish prohibition, in either case the loss was not by sea risk. The stranding, undoubtedly, led to this unhappy result, but the court are to place the loss to this result and not to the stranding; and this, upon the maxim that causa próxima et non remota spectatur. If there was any deterioration of the cargo arising from the stranding, it was unascertained, and was presently absorbed in the total loss by fire. “ If,” says Lord Ellenborough, “ a ship meet with sea damage which checks her rate of sailing, so that she is taken by an enemy from whom she would otherwise have escaped; though she would have arrived safe but for the sea damage, the loss is to be ascribed to the capture, not to the sea damage.” This principle is illustrated in the cases of Green v. Emslie, (Peake’s N. P. Cases, 212.) and Livie v. Janson, (12 East, 648.) Had the stranding amounted, of itself, to a total loss» then the subsequent act of the French would not have altered the case; and this was all that was said by the court upon this point in Schicffelin v. New-York Insurance Company. (9 Johns. Rep. 21.) If the ship, instead of being driven on the opposite shore of the port, had been driven to any part of the shore of the Isle of Leon, and within.the same bay, but out of the reach of the French, can any one doubt that the cargo would not have been saved ?

The charge of the learned judge was incorrect in stating, that if the cargo, afler the stranding, could not have been removed by reason of the French force or the Spanish interdiction, the jury ought to find a total loss; for this was making the defendants responsible for a loss in port, arising directly and immediately from other risks than those which the defendants had assured.

The verdict must, therefore, be set aside and a new trial awarded, with costs to abide the event of the suit.

New trial granted.