hending one or more who were owners. And we think it is within the true meaning of the policy to ascertain the interest, as well as the persons who were the owners, by extrinsic evidence.

The fire policy limits its protection to those who are specially named in it. But it is also a contract of indemnity to the assured solely. It is the difference in the terms of the different contracts, that creates the difference in the nature and extent of the insurance:-" and I am not prepared to say, that the policy against the risk of fire, is not capable of as much latitude, as the policy against maratime risks." By Jones, C. J. in 1 Hall, 84.

If the assured has an interest in the entire thing, he may insure separately, and under a general averment of interest in the entire thing, he shall recover for the loss, in proportion to his interest proved upon the trial. Murray v. Col. Ins. Co. 11 J. R. 311. 312. And where the policy is a valued policy upon the whole ship, and the plaintiff owns but a moiety, he will recover only according to his interest proved upon the trial; although the valuation in the policy covers the real value of the ship. ib. The contract being one purely of indemnity, whether it be an open or a valued policy.

The plaintiff effected insurance "on his goods, stock in trade," &c; and it was held, that the policy covered goods in his stores bought on joint account and sold for the mutual profit of the insured and another person, the insured being in advance on the adventure :-Held also, that the insured being absolute owner of one half of the goods in the store, had an insurable interest in them as stock in trade, and also to cover his advances on the whole stock. Millaudon v. Atlantic Ins. Co. 8 Lou. R. 557.

In Bell v. Humphreys, 2 Stark. R. 345, there were five owners of a ship, and two of them, who were the managing owners or ship's husbands, procured insurance upon the whole vessel, and Lord Ellenborough held that they had no authority to insure the interest of the other three owners, and that the latter were not liable for the premiums of insurance. The case of Lawrence v. Sebor, 2 Caines, 203, was an insurance by one of two joint owners of the cargo, upon their joint interest therein; and the majority of the court held that the acting partner was bound to insure for both. Two of the judges, however, considered the insurance as effected only on the part owned by the former. If the insurance is effected by one of the owners for account of the owners, all interested in the ship may enforce the insurance; and although it be originally effected without authority by one of the part-owners, the other owners may confirm and ratify his doings and claim the benefit of the policy. Turner v. Burrows, 8 Wend. 144.

An assured part owner of a vessel may maintain an action of assumpsit for money had and received against an insurance broker, who has received from the underwriters the full amount of the sums subscribed on a total loss, although several other persons are interested as part-owners, who had given the defendant notice of their interest, where the plaintiff insured on the whole ship generally, through the intervention of his captain, who gave the order for effecting the insurance. Roberts v. Ogilvy, 9 Price, 269.

CHAPTER III.

THE NATURE AND EXTENT OF THE RISKS FOR WHICH THE INSURERS UNDERTAKE.

1. What risks are in general within a policy :—and herein of barratry, negligence, &c.

The property embarked in a marine adventure may be insured against all the numerous Risks and Perils to which it is exposed, except in some particular instances, where the insurance against certain risks is disallowed on principles of public policy, or excluded from the nature of the contract itself. Losses by perils of the sea, are those which happen from the sea, and are necessarily incidental to a ship engaged in a sea voyage; such as those occasioned by the winds and waves: by lightning, storms and tempest; by rocks,'sands, and other natural causes. Hughes Insu. 213.

It is the proximate cause which must be regarded in considering whether a loss is to be ascribed to a particular peril or not. Thus, in Hahn v. Corbett, 2 Bing. R. 205, where there was a warranty from capture and seizure, when the ship was stranded on a shoal within a short distance from the port of destination, and lost; but while she lay disabled from proceeding she was seized by the commander of the place at which she was stranded, and the goods insured were confiscated by him, this was considered a loss by the perils of the sea. And a loss is properly ascribed to the perils of the sea, when they are the immediate and proximate cause of the loss, although another remote or intervening cause may have contributed to bring the ship into danger. As in the case of collision, where the ship insured is run down by another vessel, without any blame being imputable to either, (3 Esp. 67; 3 Taunt, 4, 5 S. C.; 5 M & S. 466,) or where the collision happens through the default of the other vessel, (4 Taunt. 126) or even from the neglect of the crew of the ship insured, the loss in each case seems to be properly ascribable to the perils of the sea; for although neglect and mismanagement may have contributed to bring the two ships into contact, the loss is immediately occasioned by the force of the winds and waves. Hughes Insu. 216. And in general, a loss occasioned by a peril of the sea is embraced by the terms of a policy, although it is remotely attributable to the negligence of the master and mariners; for although there is an implied warranty on the part of the insured to provide the ship in the first instance with a sufficient crew, yet the insured do not undertake for the conduct of the crew during the voyage. And therefore, where the ship grounded in consequence of the watch on duty having fallen asleep, this was considered as a loss by the perils of the sea, for which the underwriters were liable 5 B. A 171; 2 ib. 75.

Whether in a marine policy (and a policy on rivers and inlands waters may be so called) where the risk of fire is taken, and the risk of barratry is not, a loss by fire, remotely caused by negligence, is a loss within the policy?

"If we look to the question upon mere principle, without reference to authority, it is difficult to escape from the conclusion, that a loss by a peril insured against, and occasioned by negligence, is a loss within a marine policy; unless there be some other language in it, which repels that conclusion." Per Story, J. in Waters v. The Merchants' Louisville, Ins. Co, 11 Pet. 213. The action was brought on a policy underwritten by defendants, whereby they insured and caused to be insured, the plaintiff" lost or not lost, in the sum of $6000, on the steamboat Lioness, engine, tackle, and furniture, to navigate the western waters usually navigated by steamboats, particularly from New Or leans to Natchitoches on Red River, or elsewhere, the Missouri and Upper Missouri excepted; (Captain Waters having the privilege of placing competent masters in command at any time, 6000 being insured at New Albany, Indiana) whereof William Waters is at present master; beginning the adventure upon the steamboat from the 12 Sep. 1832, at 12 o'clock meridian, and to continue and endure until the 12 Sep. 1833, at 12 o'clock, meridian. (12 months.) The policy further provided, that "It shall be lawful for the said Steamboat, during said time, to proceed to, touch and stay at, any point or points, place or places, if thereunto obliged by stress of weather or other unavoidable accidents, also at the usual landings for wood and refreshments, and for discharging freight and passengers, without prejudice to this insurance. Touching the adventure and perils, which the aforesaid insurance company is contended to bear; they are, of the rivers, fire, enemies, pirates, assailing thieves, and all other losses and misfortunes, which shall come to the hurt, detriment, or damage of the said steamboat, engine, tackle and furniture, according to the true intent and meaning of this policy." The premium was nine per cent. The declaration averred a total loss; and that the said steamboat and appurteances insured, "were, by the adventures and perils of fire and the river, exploded, sunk to the bottom of Red river aforesaid, and utterly destroyed."

It appeared that the boat was lost by the explosion of gunpowder, which she had on board at the time, and which she had received to transport; and the loss was occasioned by the unskillful, negligent and careless stowing away of the same in the boat, by the officers and crew, or some of them, so that the same took fire and became ignited, and the explosion thereby produced. The opinion of the court was certified thus. On consideration whereof, it is the opinion of this court, 1st, that the policy does not "cover a loss of the boat by a fire, caused by a barratry of the master and crew;" 2d, that the policy does cover a loss of the boat by fire, caused by the negligence, carelessness or unskillfulness of the master and crew of the boat, or any of them;" 3d, that the allegations of the defendants in their pleas or either of them to the effect that the fire, by which the boat was lost, was caused by the carelessness, or the neglect, or unskillful conduct of the master and crew of the boat "is not a defence to this action; and 4thly, that the said pleas, or either of them, "are not sufficient in law as a bar to the action of the plaintiff." ib. p. 225.

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The foregoing opinion was in answer to four questions.-"1. Does the poliicy cover a loss of the boat by a fire, caused by the barratry of the master and crew ?" Mr. J. Story in delivering the opinion of the court upon this, observes:—" As we understand the first question, it assumes that the fire was directly and immediately caused by the barratry of the master and crew, as the efficient agents; or, in other words, that the fire was communicated and occasioned by the direct act and agency of the master and crew, intentionally done from a barratrous purpose. In this view of it,we have no hesitation to say, that a loss by fire caused by the barratry of the master and crew, is not a loss within the policy. Such a loss is properly attributable to the barratry, as its proximate cause, as it concurs as the efficient agent, with the element, eo instanti, when the injury is produced. If the master or crew should barratrously bore holes in the bottom of the vessel, and the latter should thereby be filled with water and sink, the loss would properly be deemed a loss by barratry, and not by a peril of the sea or of rivers, though the flow of the water should co-operate in producing the sinking."

The second question seems to embrace the principal point in the case :"whether a loss by fire, remotely caused by the negligence, carelessness, or unskillfulness of the master and crew of the vessel, is a loss within the true intent and meaning of the policy?-Upon this question he observes (p. 220. et seq.) "By unskillfulness, as here stated, we do not understand in this instance, a general unskilfullness, such as would be a breach of the implied warranty of competent skill to navigate and conduct the vessel; but only unskillfulness in the particular circumstances remotely connected with the loss. In this sense, it is equivalent to negligence or carelessness in the execution of duty, and not to incapacity."

"This question has undergone many discussions in England and America, and has given rise to opposing judgments in the two countries. As applied to policies against fire on land, the doctrine has for a great length of time prevailed, that losses occasioned by the mere fault or negligence of the assured or his servants, unaffected by fraud or design, are within the protection of the policies; and as such recoverable from the underwriters. It is not certain upon what precise grounds this doctrine was originally settled. It may have been from the rule of interpretation applied to such policies containing special exceptions, and not excepting this; or it may have been, and more probably was founded upon a more general ground, that as the terms of the policy covered risks by fire generally, no exception ought to be introduced by construction, except that of fraud of the assured, which, upon the principles of public policy and morals, was always to be implied. It is probable, too, that the consideration had great weight, that otherwise such policies would practically be of little importance, since, comparatively speaking, few losses of this sort would occur which could not be traced back to some carelessness, neglect, or inattention of the members of the family.

"Be the origin of it, however, what it may, the doctrine is now firmly established both in England and America. We had occasion to consider and decide the point at the last term, in the case of the Columbia Ins. Co. of Alex

andria v. Lawrence, 10 Pet. B. 517, 518; which was a policy against the risk of fire on land. The argument addressed to us, on that occasion, endeavored to establish the proposition, that there was no real distinction, between policies against fire on land and at sea; and that in each case the same risks were included: and that as the risk of loss by fire occasioned by negligence was not included in a marine policy, unless that of barratry was also contained in the same policy, it followed, that as the latter risk was not taken on a land policy, no recovery could be had. In reply to that argument, the court, Story J. said. —“In relation to insurances against fire on land, the doctrine seems to have prevailed, for a great length of time, that they cover losses occasioned by the mere faults and negligence of the assured and his servants, unaffected by any fraud or design. In the arguments of counsel on marine policies, it has constantly been taken for granted, both in England and America: (see Busk v. Royal Fxch. Ins. Co. 2 B. & Ald. 82; and Grim v. the Phanix Ins. Co. Co. 13 J. R. 451) and although there is no case directly on the point decided by the highest authority; yet, Lord Ch. J. Gibbs. at N. P. held, that if a servant by negligence sets an house on fire, the loss is recoverable on a policy against fire." In Busk v. Royal Exch. Co. 2. B. & Ald. 79, Mr. J. Bayley, observes : -"The policy expressly throws upon the underwriters the liability of all losses proceeding from fire, barratry of the master and mariners, and all other perils, losses and misfortunes, that should come to the hurt, and detriment or damage of the ship." The object of the assured certainly was to protect himself against all the risks incident to a marine adventure. The underwriter being therefore liable prima facie by the express terms of the policy, it lies upon him to discharge himself. Does he do so by showing that the fire arose from the negligence of the master and mariners ?” In that case the policy also included the risk of barratry; and it was held, that in an action on a policy on ship, by which amongst other risks, the underwriters insured against fire, and barratry of the master and mariners, they are liable for a loss by fire occasioned by the negligence of the master and mariners. However, after citing and commenting upon writers of authority in other countries, the learned judge concludes by saying:—“The fair result, therefore of all these authorities, is this, that the underwriters are liable for a loss by fire, occasioned by the negligence of the master and mariners, provided they insure against barratry, that term being, in the French writers, used in its largest sense, as comprehending negligence as well as wilful misconduct; but, inasmuch as the term barratry is used in our policies in a more limited sense, as applicable only to the wilful misconduct of the master or mariners, the authority of emerigon affords no ground for our decision in this case. We must, therefore endeavor to collect the meaning of the contracting parties, from the terms of the policy itself, and in considering whether the assured claiming for a loss by fire, is to have that claim disallowed, on the ground that the fire was occasioned by the misconduct of the master, we must look to the other terms of the policy, and learn from them, whether the assurers, in other instances, are responsible for the misconduct of the master; and when we find that they make themselves answerable for the wilful misconduct of the master in other