Ionides v. Universal Marine Association, 32 L. J. C. P. 175, 176.

he was coming towards the shore, or not lying to in the night, when he doubted of his position, he runs on shore. And it is not, in my opinion, the absence of the light which proximately causes the running on shore, within the meaning of marine policies. It would, therefore, follow that the wreck of the ship is not within the exception, but is within the policy; and if the wreck of the ship brought about the loss of the cargo, the insurer of the cargo is, so far, to be considered liable.

But then follow the subsequent events. The ship struck on the Tuesday night. On the Wednesday the weather was too rough to save the cargo. On the Thursday the weather was smooth enough, and considerable part might have been saved. One hundred and twenty bags were saved, and 1120 might have been saved, but that the Confederate troops came down and interfered with the officers of the Federal government, who had the duty to save the cargo, and who were salvors in fact, though they are called wreckers.

No doubt, when the ship was wrecked at first, and there was no appearance of being able to save any of the cargo, there was presumably a total loss of the cargo. But when the course of events showed that the ship had not gone to pieces, and there was a part of the cargo, at least, that could have been saved, then the presumption of a total loss ceased. When a part of the cargo was actually saved, of course that presumption was demonstrated not to apply to that, and I take it to be found as a fact that 1000 bags more could have been saved, but were prevented from being saved in the manner I have mentioned. Those 1000 bags, as between the parties to this instrument, must be taken to have been, if I may say so, potentially saved, and they would have been saved, but that saving was prevented by the consequences of [* 176] hostilities and commotion. That being so, those 1000 bags were brought within the exception in this policy, so that, with respect to them, the loss was a loss for which the underwriters are not liable. One hundred and twenty bags were not lost at all; for 1000 bags the insurers are not liable, although they were lost; but for 5380 bags the insurers are liable, for to that extent, it appears to me, there was a partial loss within the meaning of this policy.

It was gravely contended by the learned counsel for the defendants that there was a total loss of the cargo by capture; and if there was a total loss of the cargo by capture, that would be within the warranty of exceptions, and the insurer would not be liable.

No. 74.

- Ionides v. Universal Marine Association, 32 L. J. C. P. 176.

But it appears to me that none of the authorities apply to the case that is now before the Court. It appears to me that the ship was in a state of wreck; that the cargo was in the nature of wreck; and that the act of the troops, in all that they did on the wreck in relation to the cargo, was the act of collecting what they could despoil from the wreck for themselves, and by no means the act of troops taking possession of a ship, or of a cargo, in the capacity of troops making a capture.

I think, therefore, that the verdict ought to be for the plaintiff for the value of the 5380 bags, the loss of which, in my opinion, was covered by the policy.

WILLES, J. I am of the same opinion upon all the points.

There are three matters with reference to which the case may be considered. First, with reference to the effect of there not being the usual light at Cape Hatteras. Secondly, with reference to the wreck and its immediate effects. Lastly, with reference to the hostile seizure by the Confederate troops. Now, so far as the absence of the light is concerned, the question to be considered is, whether the loss of the vessel, in consequence of the possibility, or indeed the strong probability (as enforced by Mr. Maclachlan in his able argument) of her escape from shipwreck, if the light had been there, is to be attributed to the consequence of the hostile act of putting out the light. It may have been, in one sense, the cause of the loss; but it was not the proximate cause. It was not the absolute certain cause of the loss. The proximate and absolute certain cause of the loss was the fact of the vessel taking a wrong course, and getting on the rocks at Cape Hatteras. Now, I apprehend that, as soon as that is stated, the only question remaining to be considered is, whether there is to be applied to this case the ordinary rules of the insurance law, namely, that you are not to trouble yourself with distant causes; that you are not to go into metaphysical distinctions between causes efficient and causes material, and causes final, and so on of the rest of them, but you are to look to the proximate and immediately operating cause of the loss, and to that only; that is, whether the ordinary rule of insurance law is applicable to this policy. It has been argued that it is not applicable to this policy, because of the introduction into the exception of the words "all consequences of hostilities;" assuming, as I also intend to do, that the acts of the persons called Confederates are to be treated as hostilities. But I apprehend that

- Ionides v. Universal Marine Association, 32 L. J. C. P. 176, 177.

that is quite a fallacious argument on the part of the defendants. I apprehend that, in putting a construction on this exception, you are to look only to the proximate consequences of hostilities, notwithstanding the use of the word "all" in that part of the policy which is for the benefit of the insured. The introduction of the word "all," as everybody must be aware, is unnecessary, because no rule of grammar can be more clear, and no rule has been longer adopted in the law, than that words general and words universal are all one. It seems to me that the proper construction to put on the words "all consequences of hostilities" is the construction which you would put on the words "consequences of hostilities." They mean nothing more nor less. They refer to the totality of causes to be considered, not to their sequence, or their proximity, or their remoteness.

I will put this case: I will assume that a vessel upon the same course as this vessel was leaving Rio, and that the captain was acquainted with the fact that the light on Cape Hatteras had been extinguished by the Confederates, the result of which is,

*

that he keeps further out to sea, and so goes on shore on [* 177] an island which he would otherwise have avoided, and his vessel is wrecked. To take the consequences one step further, I will suppose that the vessel is wrecked for want of a light there, which has been extinguished by a mariner, who had been himself shipwrecked by reason of the light having been extinguished by the Confederates at Cape Hatteras, and who, being embittered against all mankind, had proceeded to put out the light on the island where the vessel is wrecked. That is a case in which the vessel is unquestionably wrecked, in some sense, in consequence of the light having been put out on Cape Hatteras; but can any person in his senses, dealing with the law of insurance, which regulates men of business and their affairs, suppose that that consequence is a consequence which is covered by this exception?

But, if you cannot carry the exception of consequences of hostilities into all consequences, however remote, you are necessarily driven to that with which I started, namely, to say that consequences here must be dealt with according to the ordinary rule as proximate consequences.

Nor is this a rule which is for the benefit of the assured only. It is also applied for the benefit of the insurer, and it is unnecessary to give any further instance of that than the well-known case of

No. 74. - Ionides v. Universal Marine Association, 32 L. J. C. P. 177.

De Vaux v. Salvador, 4 A. & E. 420, 5 L. J. (N. S.) K. B. 134 (p. 305, post), which made it necessary to add another clause to policies. The insurers and the insured are equally bound by the rule, and applying that rule to this case, the wreck of the vessel was as between these parties, and according to the law applicable to the contract which they had entered into, a wreck by the perils of the sea, and not a wreck in consequence of hostilities.

And

Now I come to the next portion of the case, I mean the wreck and its effects. I prefer dealing with that before dealing with the effect of hostilities. The facts have been stated, and it is enough, therefore, in order to introduce my judgment on this point, to say shortly that the vessel was stranded, and was totally lost from the moment she went on the rocks, without hope of recovery. With respect to the cargo that was on board of her, the general law, I apprehend, is simple. The vessel having been shipwrecked, and having taken water by the shipwreck, those facts of themselves would have been sufficient to give rise to a right to abandon, not only as regards the vessel, but a right as regards the cargo. this is not a rule peculiar to our own, but is common to most systems of law. In illustration of this, I need only refer to the Treatise of Emerigon, vol. i. pp. 401, 402, ed. Boulay-Paty, 1827, where he gives an instance in which the vessel went ashore, both naufrage and bris; part of the cargo was saved, damaged, and part of the cargo was saved, not damaged; and there that most learned and experienced of lawyers seems to consider that it was a case of abandonment, notwithstanding the saving of a portion of the goods in an undamaged state; and he does so for the reason which has been stated by Mr. Maclachlan, in his argument, that the law in these cases avoids the raising of questions which it would, in the great majority of cases, deem impracticable to determine, or determine with precision.

I am quite aware that this has not been adopted to its full extent in our jurisprudence, or in that of America; but it may serve as an introduction, because it shows that the experience of mankind is in favour of the proposition which the authorities seem to furnish, namely, that where there is a wreck of a vessel, without any hope of recovering her, the cargo is to be treated as also lost if the circumstances are such that no part of it can be recovered for the use and benefit of the persons insured. Take the case of a vessel wrecked on an uninhabited island, where the removal of the goods

No. 74. Ionides v. Universal Marine Association, 32 L. J. C. P. 177, 178.

from her, the sending out a vessel to do so, and bringing the goods home, would be ruinous, in comparison with the value which the goods would fetch when brought home. Of course you have there a case of absolute total loss immediately. Take, again, the case of a vessel being wrecked where the inhabitants of the island are savage people, who seize a portion of the goods, or, a portion of the goods being saved by the crew, the crew are immediately deprived of them by the savage people of the place. There, again, you have the case of a total loss. That is the case of Bondrett v. Hentigg, Holt's N. P. 149 (17 R. R. 625). *There part of [* 178] the goods was lost, part was got ashore, and the wreck was destroyed and plundered by the inhabitants of the coast, so that no portion came again into the possession of the assured; and Chief Justice GIBBS there deals with the case as one of a total loss; and he gives this reason, that the portion of the goods which were saved from the wreck, and which they got ashore, never came again into the hands of the owner. He treats that as a proximate consequence of the wreck which has taken place under those circumstances. Therefore it is not necessary that the ship should be in a condition where it is physically impossible to get any of the goods out of her. You must take all the circumstances into account for the purpose of determining whether any of the goods can be saved for the benefit of the owner. Now you might put as opposed to that the case of a vessel, such as we all have heard of, going down at the entrance of a dock at the port to which she is bound, the insurance still continuing, and the goods unimpaired, and all capable of being restored with very little difficulty. It is very easy to imagine any number of cases between those two, but it would be a waste of time to do so. Those seem to be the two cases at one extreme and at the other of the list which would be necessary for the purpose of illustrating the rule.

Now what have we in this case? We have the vessel absolutely wrecked, and the goods in this condition, that it is possible, consistent with the laws of nature, to save 1120 bags of them. It is impossible to save the 5380. I apprehend the conclusion of good sense and also of law upon that is, that the 5380 as to which the loss is certain when the ship strikes are as absolutely lost as the ship itself, at the same moment when she struck the rock. With respect to a thousand bags of them, under the ordinary state of things, if there had been no hostilities (still using that word in the