wind in a graving dock; the loss of dollars thrown overboard from a vessel on the point of capture, in order that they might not be taken possession of by the enemy; the wrecking of a steamer through the bursting of the boiler, etc., if from the unusual action of the sea.1

Damage directly done by rats, as, for instance, by the gnawing of holes in the ship's bottom, whereby she was rendered unfit for sea, has been decided not to be a peril insured against. If, however, a rat should gnaw through a leaden pipe, and thereby let in water which sinks the ship, the underwriter would no doubt be liable. If a sword-fish drives its snout through a plank, the underwriter must pay for the damage.

Damage done by worms to the planking or timbers of wooden ships can be effectually prevented only by copper or metal sheathing. If, through accident, such as a grounding, the sheathing is anywhere rubbed off and worms get in through the unprotected part, such damage must be borne by the underwriters; not so, if a ship unprotected by metal sheathing is sent into seas infested by worms. Loss or damage by explosion, whether of gunpowder, acids, or chemicals, is recoverable under the policy. So is damage done to one kind of goods as the effect of sea damage done to another kind.5

§ 220. Proximate Cause.-Where there is no question of personal misconduct on the part of the assured the law has regard only to the proximate or immediate cause of the loss. But in case of fraud or personal misconduct by the assured himself, all consequences thereof, remote as well as direct, are to be excluded from the claim on the policy.

It is a settled rule of law that any loss directly caused by a peril insured against is to be paid for by the insurers, notwithstanding that the loss may have been brought about by bad navigation, neglect, or fault of the master or seamen, or, ex

1 West India & P. Tel. Co. v. Home & C. Mar. Ins. Co., 4 Asp. Mar. L. C. 341. Hunter v. Potts, 4 Camp. 203. See Garrigues v. Coxe, 1 Binn. 592; s. c., 2 Am. Dec. 493.

71.

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3 Laveroni v. Drury, 8 Ex. 166.

Rohl v. Parr, 1 Esp. 444.

Koebel v. Saunders, 17 C. B. N. S.

cepting only the misconduct of the assured himself, any other cause not directly insured against.1

Thus, where a ship was destroyed by fire because a careless mate had lighted a fire in the cabin and then left the ship without a watchman on board. Where a ship fell over on her side in harbor and was bilged because the rope provided to secure her was not strong enough to hold her. Where the sloop drifted on the rocks while the seamen in charge of her had all negligently fallen asleep. Where a ship is damaged by collision, though the collision may have occurred in calm, clear weather, through similar want of lookout, or the mistake of a helmsman.5 In these and similar cases the insurers have been held liable on the ground that the peril insured against is the proximate cause.

The question of proximate cause presents itself under different aspects, and a brief statement of some of them will make the subject clearer. Sometimes the starting point is a casualty negligently caused-for instance, a fire-and the inquiry is directed to one of two points, as the case may be: (1) How far shall the spread of the fire be considered a proximate result of the negligence, or (2) shall the loss by fire be said to include consequences like theft, or injury by water used to put out the fire, or loss of business and profits, which, though quite distinct from combustion, are caused by it? Then, again, in another class of cases the starting point is a given damage to the subject of an insurance where different causes have conjoined to produce it, for one of which the insurers are liable and for the other of which they have assumed no express responsibility. The vital question then arises, which cause shall be considered the efficient controlling cause of the loss, and upon the solution of this question turns the liability or exemption of the insurers, as, for example, where a ship is wrecked upon a rock by a storm, but the master was careless in steering it.

Orient Ins. Co. v. Adams, 123 U. S. 67 (1887). Phoenix Ins. Co. v. Erie & W. Tr. Co., 117 U. S. 312. The Titania, 19 Fed. Rep. 101. Mathews v. Howard Ins. Co., 11 N. Y. 14. Dudgeon v. Pembroke, L. R., 2 App. Cas. 297.

2 B. & Ald. 73. American Ins. Co. v. Bryan, 26 Wend. 563.

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Bishop v. Pentland, 7 B. & C. 219. Walker v. Maitland, 5 B.& Ald. 171. Smith v. Scott, 4 Taunt. 126. Dudgeon v. Pembroke, L. R., 9 Q. B. D. 581. Thompson v. Hopper, Busk v. Royal Exchange Ass. Co., 6 E. & B. 191.

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$221. A Peril Excepted and Sea Peril.-When a policy is effected with express exemption from some particular peril, as, for instance, with the clause, "free from all consequences of hostilities," if a loss arises from the joint operation of the peril insured and the peril thus excluded, we are to inquire which of the two was the proximate cause.

This appears from the following decision: During the American civil war the light on Cape Hatteras was extinguished by the Confederate troops for military reasons. Owing to the absence of this light the captain of a ship missed his reckoning, struck on a reef of rocks, and the ship became a wreck. The cargo consisted of 6,500 bags of coffee, of which 1,020 would have been saved if the salvors had not been prevented by the Confederate troops, who themselves only succeeded in saving 170 bags, which they kept for their own use. This coffee was insured "free from all consequences of hostilities." On these facts the English Court of Common Pleas held that the underwriters were liable for the loss of all but 1,020 bags. The case was to be dealt with, the court said, as if there were two policies, one on the war risk and the other on the sea risk, and the question here was which of the two was the proximate cause of the loss. As to the 1,020 bags, it was the Confederate forces which directly prevented the saving, and so caused the loss of that portion. But the extinguishing of the light was only the remote cause of the loss of the remainder, the proximate cause being the striking on the reef, which could not be said to follow as a natural or ordinary, still less as a necessary consequence of the extinguishing of the light.1 Where the policy contained an exemption in the form of an ice clause, and the delay and consequent loss were occasioned partly by the ice and partly by a peril insured against, a recovery was allowed on the ground that the peril was the proximate cause.2

$222. Proximate Cause as Limiting Insurers' Liability. The rule looking only to the proximate cause of loss sometimes operates in favor of the insured, but sometimes in favor of the insurers. From this principle it follows that a number of accidental or secondary losses springing out of the

1 Ionides v. Universal Marine Ins. Co., 14 C. B. N. S. 259.

2 Brown v. St. Nicholas Ins. Co., 61 N. Y. 332, by Dwight, C.

damage to the thing insured, and falling on the owner of it, cannot be recovered from the insurer.

For example, when a ship is damaged by sea peril the insurer is liable for the cost of repairing but not for the shipowner's loss because the ship is laid up and unable to earn freight while being repaired. Nor, again, supposing that during that period it is necessary to retain the ship's crew, or any portion of them, is he liable for the owner's loss in having to pay and feed them while the ship is so unemployed.1 These losses result not from the damage but from the delay incidental to the damage, so that the damage suffered by the ship, it may be argued, is only the remote cause of them. So if fruit, meat, or any other article of like perishable nature putrefies by reason of delay springing out of sea peril, the insurer is not liable.2 Nor, except under the special provision of the collision clause, is the insurer of a ship liable in case the assured is obliged to pay damages to the owner of some other ship on account of a collision occasioned by the fault of his crew.

$223. Wear and Tear.-Wear and tear is distinguished from sea peril in not being occasioned by unusual violence or any accident, but by the mere "silent, natural, gradual action of the elements upon the vessel itself." The chief seat of wear and tear is naturally that portion of the fabric which is directly used in urging the vessel through the water--the sails, rigging, and lighter spars of a sailing vessel, and the screw-shaft of a steamer. Wear and tear must be discriminated from sea-damage, not so much by the kind of weather it occurs in as by the kind of damage done; what is ordinary weather for one season or voyage being storm for another. Besides that, the language of ship-masters varies greatly in intensity of epithet as descriptive of weather.

To distinguish what is wear and tear in particular cases must, to a great extent, be left to the trained judgment of experts in such matters. Some general rules for their guidance, however, are adopted in the practice of adjusters, which may be brought under the following heads: Sails split or blown away while set are ordinarily treated as wear and tear; 2 Taylor v. Dunbar, L. R., 4 C. P. 206.

1 DeVaux v. Salvador, 4 Ad. & Ell. 420.

but not so, if set when the ship is aground, or if lost in connection with spars carried away, or if blown adrift when furled, or in the act of furling or setting them; and a further exception ought probably to be made in the case of sails split when the ship is lying to, or scudding before the wind, or when she broaches to. The ground of this rule is, that the mere pressure of the wind upon the sails while the ship is under canvas subjects them to an ordinary continuous strain, the effects of which are every now and then shown by their splitting or giving way.

Where rigging is chafed, or stays or running gear parted, from no assignable cause beyond the continuous strain upon them, it is for the same reason treated as wear and tear; but not so, if the cause of the breakage or chafing is something unusual and accidental, such as the carrying away of a mast, or the like. The same rule, with the same exception, is applicable to light spars, as studding sail booms, royal and topgallant yards, and the like. What, for this purpose, are light spars, must be left to the judgment of experts. It seems hardly reasonable that the same rule should serve for small coasters, or yachts, which frequently lose their little spars by carrying on sail, and ships of the largest class, whose topgallant masts may be bigger than the others' topmast, or even mainmast. Spars carried away when no sail is set on them are always admissible as particular average.

The breaking of a screw shaft, through mere wear and tear, is perhaps one of the most ordinary dangers of steam navigation. It is supposed that by the constant revolution of the shaft some process of crystallization is set up, which by degrees renders the iron brittle, so that it may snap under the mere ordinary strain in fine weather; and this takes place at periods so varying in different cases that it is hardly practicable to guard against it. Such a breakage, where there is no accident or violence to account for it, can, of course, be treated only as wear and tear. But there is a good deal of floating wreckage in the sea, and cases do occur in which the breakage of a shaft is not improbably attributable to contact with some such thing.

A ship's ground-tackle, windlass, and hawsers used for mooring, are of necessity subjected to much constant ordinary