Magoun v. New England Marine Ins.

STORY, Circuit Justice. The first question, which arises in the present case, is, whether there has been a total loss in the sense of the law of insurance. It is clear, that there has been no loss by the perils of the seas. But there has been a restraint and detainment of the government within the words of the policy. Has there been a total loss by reason of that restraint and detainment? I think there has been. The argument is, that the injury to the vessel, by the long delay [486] and exposure to the climate, was the immediate cause of the loss, and the seizure and detainment the remote cause only; and that, therefore, the rule applies, “Causa próx-ima. non remota, spectatur,” and the underwriters are not liable for injury by mere wear and tear, or by delays in the voyage, or by worms, or by exposure to the climate. But it appears to me, that this is not a correct exposition of the rule. All the consequences naturally flowing from the peril insured against, or incident thereto, are properly attributable to the peril itself. If there be a capture, and before the vessel is delivered from that peril, she is afterwards lost by fire, or accident or negligence of the captors, I take it to be clear, that the whole loss is properly attributable to the capture. It would be an over-refinement and metaphysical subtlety to hold otherwise; and would shake the confidence of the commercial world in the supposed indemnity held out by policies against the common perils. The decision of the supreme court of the United States in Peters v. Warren Ins. Co. (at the last term) 14 Pet. [39 U. S.] 99, is directly in point; and in my judgment fully settles, that the restraint and detainment under the seizure are to be treated as the proximate cause of the loss in the sense of the rule. The vessel was never delivered from that peril, until she was virtually destroyed and incapable to perform the voyage. But, if it were possible to get over this point, as 1 think it is not, the loss of the voyage arising from the total incapacity of the vessel to perform it would, under the circumstances, it being by a peril insured against, be decisive upon this point. In the next place, as to the sentence of the coiu't of appeals. The policy contains a clause, “that the assurers shall 'not be answerable for any charge, damage or loss, which may arise in consequence of seizure or detention for or on account of illicit, or prohibited trade, or trade in articles contraband of war.” The true construction of this clause of the policy was finally settled by the supreme court of the United States, in the case of Carrington v. Merchants’ Ins. Co., 8 Pet. [33 U. S.] 495. It was there held, that it was not necessary to bring the case within the clause, that there should be a justifiable cause of condemnation; but only, that there should be a justifiable cause of seizure, or in other words, a probable cause of seizure. If the seizure be tortious, and without such cause, it is treated as not bonfi fide done, as an act of lawless violence, or of arbitrary power, or of gross fraud, or at all events of unjustifiable force, according to circumstances. The question thou arises, whether the seizure in this case was justifiable, or founded upon probable cause. Now, the sentence of the appellate court expressly affirms, that there was no justifiable ground for the seizure of the schooner; that the very act of illegality in landing the six bags .of beans, asserted in the libel or proceeding in rem, supposing it to be true, furnished by law no ground for the seizure of the schooner, because the value was only $25, and no penalty could attacn upon the vessel by law, unless the goods illegally landed from the vessel were of the value of fifty dollars. Now, this is an adjudication upon the very point in controversy, as to probable cause; and it negatives the existence of it. Then, is this sentence conclusive, or are the parties at liberty to go behind it, and to prove aliunde the existence of a probable cause of the seizure. It appears to me, that, independently of fraud, (a point, which will be presently considered,) the sentence is conclusive. This is the established doctrine of the supreme court of the United States, which was fully examined and considered by this court in the recent case of Bradstreet v. Neptune Ins. Co. [Case No. 1,793], and, therefore, it need not be here further discussed. But. then, it is said, that here the sentence was founded in fraud. It is not pretended, that there was any fraud, or participation in any fraud, on the part of the court; and certainly, if contended for, there are in the ease no proofs to support it. The only ground, asserted for the imputed fraud, is, that the master of the schooner swore falsely, in relation to the matters in controversy before the court, upon the trial of the seizure, and thereby procured the sentence of reversal of the appellate court; and that it is apparent from the other evidence now produced, that there was probable cause of the seizure. Now, in the first place, I do not know, that it any where appears, that the master was a witness, or what in fact he did swear to, if a witness, at the time of the hearing of the trial of the cause; for it is not stated in the transcript of the proceedings, nor does it appear, what effect, if any, the evidence given by him had, or could have upon the ultimate decree, pronounced by the court below, or by the appellate court. What the master said, if ho was a witness, might have had no influence upon the decision, for aught that the record directly states or discloses. The most, that can be said, is, that the master concealed the fact, that eleven bags of beans had been illegally landed from the schooner instead of six; and that thereby both courts were misled in their decrees. But concealment of facts would be a new head of the law, upon which to avoid a sentence of condemnation or acquittal in case of a seizure and proceedings in rem. Nor do I know, (but I give no opinion on the point) that it has ever been judicially held, that a sentence of a foreign court, acting in rem, as in eases of revenue seizures and cases of prize, has ever been held to be reexaminable. as to its validity, either in cases of condemnation or of ac [487] quittal, upon the mere ground, that there had been false swearing in the case by the agents of some of the parties in interest. That would be a very broad ground, and open a wide door to impeach the validity and conclusiveness of such sentences. If such evidence be admissible at all, it is equally admissible to disprove and vacate a sentence of condemnation, as well as a sentence of acquittal. It seems to me, that if evidence of false swearing in such cases be admissible to disprove the sentence, and establish fraud in it (on which I give no opinion), it ought to be clearly shown, that it was the real, substantial, and efficient cause of the sentence, and not, that it might have formed an ingredient in it. In the present case, it is far from being clear, that eleven bags of beans w;ere illegally landed from the schooner. There is considerable confusion in the evidence on this point. But it is unnecessary to consider it, since it is plain, upon the very face of the proceedings, that the only asserted ground of forfeiture was the illegal landing of six bags of beans. No other matter -was, or could be brought into controversy in the suit. The seizure was for that act, and for that alone. It is wholly immaterial, what other causes might have existed to justify a seizure. The only question is, what in fact was the positive cause of the seizure, not what might have been a good cause. From 'what has been already stated, the professed cause of the seizure was an act, which, by law, could not induce any forfeiture, and, consequently could furnish no justifiable or probable cause for the seizure. By oúr law, — -Act 1799, c. 128, § 50 [1 Story’s Laws, 617; 1 Stat. 665, c. 22], — the landing of goods of the value of four hundred dollars from a vessel without a permit will subject the vessel to forfeiture. But, if a vessel were seized for landing goods of the acknowledged value of not more than fifty dollars, it would be impossible for the court to hold, that there was any justifiable or probable cause for the seizure of the vessel. In truth, therefore, whether there was any false swearing or not, or any fraudulent concealment, or not, by the master, it is clear, that the appellate court proceeded in its sentence upon the fact, that the illegal landing of six bags of beans was the sole cause of the seizure; and that, consequently, it was without any justifiable or probable cause in law or in fact. This view of the matter disposes of the' whole merits of the defence; and it is unnecessary to discuss the other points, incidentally suggested at the argument. Upon the whole, my opinion is, that the loss is clearly a total loss within the policy; and that the case does not fall within the clause exempting the underwriters from losses and charges and damages occasioned by seizure or detention, on account of illicit or prohibited trade.