#### The Germania Insurance Company *v.*Thomas Sherlock et al.

1. *A*policy of insurance on a steamboat against loss by fire only, covers a loss by fire caused by collision where collision is not excepted, by the terms of the policy, from the risk named.

2. Where the conduct of a pilot results in injury to the owner of the vessel, but is free from fraud, gross negligence, and willful violation of a known positive law, he is not guilty of barratry within the rule of maritime or insurance law.

Error to the Superior Court of Cincinnati.

The original action was brought by Thomas Sherlock and *34others, against the Germania Eire and Marine Insurance Company, of Cincinnati, on a policy of insurance “ against loss by fire only,” issued on the steamboat America, owned by the plaintiff's, and used in navigating the Ohio river for account of the United States Mail Line Company.

The contract of insurance between the parties was written on a printed form (in blank) for a marine policy, and the portions material to this case are as follows :

“ This policy of insurance witnesselh, that the Germania Eire and Marine Insurance Company of Cincinnati, by these presents, do cause *Thos. Sherlock, treasurer,*to be insured in the sum of not exceeding *seventy-five hundred*dollars, lost or not lost, upon the *Str.*“ *America*” *against loss by fire only,*wherever she is in safety at noon of the *twenty - second*day of *April,*1868, and from theuce to noon of the *twenty-second*day of *April,*1869, when this policy shall expire, unless sooner terminated or made void by conditions hereinafter expressed.

“With permission to navigate *the usual western rivers for account of the United States Mail Line Company against the risk of fire only. Coal-oil clause waived.*$7,500 @ 5 % $375.”

The parts in italics are the written portions of the policy.

The perils are thus described in the formal printed portion of the policy:

“ Touching the perils, which the said insurance company is content to bear, and take upon it, under this policy, they ,are of the seas, lakes, rivers, canals, fires, and jettisons, that shall come to the damage of said vessel, or any part ■thereof. . . .

*“*Warranted by the assured that this company shall be ■free from all claim for loss or damage arising from or caused by theft, barratry, robbery, civil commotion, war, or piracy, ■or during any time said vessel shall be seized and taken possession of, or detained by any act of the United States government, or other legally excluded causes; from damage that may be done by the vessel hereby insured to any ■other vessel or property; from any loss or damage ocea*35sioned by the said vessel being improperly laden, by the bursting of the boilers, collapsing of the flues, explosion of gunpowder, the derangement or breaking of the engines or machinezy, or any consequences resulting therefrom, unless the same be caused by unavoidable external violence; from any loss occasioned by ice, between Bissell’s Point and Picotte street, St. Louis.”

About 11 o’clock on the night of December 4, 1868, the America, while ascending the Ohio river, near Warsaw, Kentucky, collided with a descending steamboat, the United States, also owned by the plaintiffs, and used in the same tz’ade.

The United States was immediately set on fire by the collision, and afterward the flames wez’e communicated from it to the America, whereby the latter boat was wholly destroyed by fire.

The 29th section of the act of Congress, “ to provide for the better security of the lives of passengers on board of vessels propelled in whole or in part by steam,” approved August 30, 1852, provides as follows :

“ That it shall be the duty of the supervising inspectors to establish such rules and regulations, tobe observed by all such vessels in passing each other, as they shall from time to time deem necessary for safety ; two printed copies of which rules and regulations, signed by said inspectors, shall be furnished to each of such vessels, and shall at all times be kept posted up in conspicuous places on such vessels, which rules shall be observed both night and day. Should any pilot, engineer, or master of any such vessel neglect or willfully refuse to observe the foregoing regulations, any delinquent so neglecting or refusing shall be liable to a penalty of $30, and to all damage done to any passenger in his person or baggage by such neglect or *refusal;*and no such vessel shall be justified in coming into collision with another if it can be avoided.”

In pursuance of this act, the supervising inspectors of steamboats established, among others, the following rules for pilots, to wit:

*36“ 1. When steamers are approaching each other the signal for passing shall be one sound of the steam-whistle to keep to the right, and two sounds of the steam-whistle to keep to the left; these signals first to be made by the ascending steamer. If the dangers of navigation, darkness of the night, narrowness of the channel, or any other cause, render it necessary for the descending boat to take the other side, she can do so by making the necessary signals, and the ascending steamer must govern herself accordingly. These signals to be observed by steamers either day or night.

“ 2. Should steamers be likely to pass near each other, and these signals should not be made and answered by the time such boats shall have arrived at the distance of eight hundred yards from each other, the engines of both boats shall be stopped; or should the signal be given and not properly understood from any cause whatever, both boats shall not be again started until the proper signals are made, answered, and understood.”

On the trial of the cause in the court below, a verdict and judgment were rendered in favor of the plaintiffs. A bill of exceptions was taken, in which is set out all the testimony offered at the trial; the charge of the court to the jury; and requests to charge, submitted by the defendant, which were overruled, and exceptions taken.

This petition is prosecuted by the defendant below, and the principal errors assigned and relied on arise on the charge as given, and in refusing to charge as requested.

*John F. Follelt,*for plaintiff’ in error:

I. The peril against which the defendant insured the plaintiffs, as expressed in the written part of the policy (and it is well settled in insurance law that the written part of the policy controls the printed where there is any conflict between that which is printed and the written parts), is “ against the risk of fire only.”

The first defense was a denial that, in contemplation of law, the boat was lost by fire; and we think that the court erred in the several rulings relating to this defense.

*37The general charge of the court upon this point is predicated upon the presumption that in the policy there is no express exception of the perils of the river, or of collision. Whether the peril of collision is expressly excepted or not, one thing is certain, and for all practical purposes the only inquiry we need make, perils of the river, including collision, were not insured against by. this policy, and if not excepted they were at least expressly excluded, and that, too, by a distinct and positive act of the parties.

The court mistook the law in charging that if “this boat was destroyed by fire, it is not a defense that the fire was caused remotely or proximately by the collision.”

The term “ destroyed by fire” is clearly used here in the sense of burned up.

In a legal sense, and upon th>s ground, our first defense was predicated. We say that it was not destroyed by fire, but by the collision.

But the whole expression, taken together, can leave no doubt upon the mind of any one, as it certainly did not upon the mind of the jury, that if the boat burned, they were not permitted to inquire whether or not the collision caused the burning.

And this brings us to the often-used, and in too many instances wrongly applied maxim, *“Injura non remota causa sed próxima*spectatur.”

The sound judicial construction of the maxim, and the one that is being adopted by our ablest courts and judges, is that the proximate cause is the *causa sine qua non.*1 Phillips on Insurance, sec. 1132; *Brady*v. *Northwestern Ins. Co.,*11 Mich. 425; *Case*v. *Hartford Ins. Co.,*13 Ill. 676 (if the last in the train of circumstances resulting in ■‘a loss is the only one that can be considered, is it not clear that in the case last cited the removal of the goods and not the fire was the proximate cause of the loss?). *Roe & Kercheval*v. *The Columbus Ins. Co.,*17 Mo. 301; *Montgomery, etc.*v. *Fireman’s Ins. Co.,*16 B. Mon. 427 (and see 16 B. Mon. 427, as to the true method of construing a policy of insurance); *Strong et al.*v. *Sun Mutual Ins. Co.,*31 N. Y. *38103; *Waters*v. *The Merchants’ Louisville Ins. Co.,*11 Pet. 213; *Peters*v. *The Warren Ins. Co.,*14 Pet. 99; *General Mutual Ins. Co.*v. *Sherwood,*14 How. 364; *Insurance Company*v. *Tweed,*7 Wal. 44; *McCargo*v. *New Orleans Ins. Co.,*10 Rob. (La.) 202; *Magoun*v. *New England Marine Ins. Co.,*1 Story, 157; *Potter*v. *Ocean Ins. Co.,*3 Sumn. 27; *Montoyu*v. *Lon.*Ass. *Co.,*6 Exch. 450; *Lawrence*v. *Aberdein,*7 E. C. L. 38; *Gabay*v. *Lloyd,*10 E. C. L. 229; *Thompson*v. *Hopper,*88 E. C. L. 937; *Ionides*v. *The U. M. Ins. Co.,*108 E. C. L. 259.

II. The pilots of these boats were guilty of criminal misconduct, and these underwriters are not liable, under their policy, for any of the consequences thereof.

This criminal misconduct of the pilots is barratry.

For the definition of barratry, see Bouvier’s Law Dictionary; Phillips on Ins., secs. 1062, 1067, 1073; *Patapsco Ins Co.*v. *Coulter,*3 Pet. 230; *Earle*v. *Rowecroft,*8 East, 126

By the express terms of the act of Congress, 1852, simple neglect to comply with its provisions, resulting in loss, is a fraud upon the owners, and is barratry. 1 Phillips on Ins., sec. 1051; *Insurance Company*v. *Marsh,*41 Penn. St. 394; *N. Y. & Liv. U. S. M. S. Co.*v. *Rumball,*21 How. 372.

*W. Y. Gholson,*for plaintiff in error:

In this case, in the written part of the policy, it is expressly stated that the insurance is “ against the risk of fire only,” and no erasure is made in the printed part. If, as is admitted, the perils of the river are not covered, it is by virtue of the express statement in the written part, and the rule that such a statement controls the printed pai’t. It is an express exception of perils of river, shown by the intent of the parties in the writing itself. 1 Parsons on Insurance, 65, 614.

Collision is not excepted in the same clause or in the same terms as barratry, but the intent to except it is shown, and that intent, when ascertained, must have the same effect, whatever the language in which it is expressed.

*39The law has prescribed no form of words to except a risk from a marine policy. It is therefore a mere question of construction. *Williams*v. *Burrell,*50 E. C. L. 402; *Masury*v. *Southworth,*9 Ohio St. 340.

In the case of concurrent causes, to one of which it is necessary to attribute the loss, it can make no difference whether one of the causes is excepted, or simply not insured against. 1 Parsons on Insurance, 619.

"What we desired to have put to the jury was, whether a peril not insured against (collision), did not make a *causa causans*efficacious in the production *of*the mischief?

To determine whether it (collision) did constitute such *causa causans,*we asked the court to apply the well-established rules or tests, copied from high authority, on the subject, in the fourth and fifth charges. 1 Phillips on Insurance, secs. 1097,1132, 1137.

If there was an insurance against fire, and no insurance against collision, it can make no difference whether the risk of collision was expressly excepted or simply not covered. *Waters*v. *The Merchants’ Ins. Co.,*11 Pet. 213.

It will be seen from the facts of this case in 11 Peters, particularly as shown by the argument, there was no express exception of barratry.

On the question what is the predominating, efficient, real cause of the loss, we cite the following authorities. They sustain fully the idea contained in the fifth charge asked by defendant, that nearness of time is not the test, but the efficient agency is the test. The true question is, what caused the loss, not wrhat instrument was employed. The knife used by the assassin, in one sense, causes death, but the assassin himself is the real cause. The fire may destroy the boat, but if the fire was the direct, necessary, inevitable result of the collision — if without the collision there would have been no fire — then, according to all the authorities, the collision, not the fire, is the cause of the loss. *Waters*v. *Louisville Ins. Co.,*11 Peters, 213; *Thompson*v. *Hopper,*88 Eng. C. L. 447; *Carballero*v. *Home Mutual Ins. Co.,*15 Louisiana Ann. 217; *Roe & Kercheval*v. *Col. Ins. Co.,*17 *40Mo. 301; *Brady*v. *Northwestern Ins. Co.,*11 Mich. 425: *Ionides*v. *Universal Ins. Co.,*108 Eng. C. L. 259; *Cass*v. *Hartford Ins. Co.,*13 Illinois, 676, *681;*16 B. Mon. 427, 440; *Cargo*v. *New Orleans Ins. Co.,*10 Rob. (La.) 212; *Tweed*v. *Ins. Co., 7*Wallace, 44.

The decision in the case of *Thompson*v. *Hopper,*6 E. & B. (88 E. C. L.) 937, 947, was reversed — E. B. & E. (96 E. C. L.) 1038, 1055 ; but the grounds of reversal in no way affect the purpose for which we cite it, which is to show the opinion of Lord Campbell as to the proper application, in general, of the rule “ *causa próxima non remota spedatur,”*and his approbation of the decision in *Waters*v. *Louisville Ins. Co.,*and his construction of that decision.

A policy which covers “fire only” is the same in effect in law, in common sense, and in common parlance, as a policy against every loss, except all losses which are caused by any other peril than “ fire only.”

As to what constitutes “ criminal misconduct,” what is discretion, see *Citizens’ Ins. Co.*v. *Marsh,*41 Penn. St. *386; Bentley*v. *Coyne,*4 Wallace, 509 ; 3 Pet. 222 ; 2 Cush. 500, 511.

*Lincoln, Smith § Warnock; Hoadly, Jackson & Johnson,*and *S. & S. R. Matthews,*for defendants in error:

I. The insurance was one covering the damage done to said steamboat by etres. But it has certain exceptions to this liability expressly provided. Eor all damage caused by or arising from barratry, civil commotion, war, or piracy, or during the time said vessel shall be seized and taken possession of or detained by the United States government, or by the bursting of the boilers, collapsing of the flues, explosion of gunpowder, or from any loss caused by the use of an open light in the hold. It is evident that loss by fire may arise from, or be occasioned by, the above causes, or during such times; and such losses are expressly excluded from the otherwise general operation of the policy covering damage by fire. This contract in express terms is to make good such loss or damage as may occur to the *41boat by fire, that being a well-defined and distinct peril, differing in its nature from perils of the river and from collision, which is one of the perils of the river. The defendant, by the express terms of the agreement, is bound to make good such loss, unless the same is excepted from the operation of the general terms of the policy. And certain fires, which can be traced to specific causes, being thus expressly excepted, the rule is that no other exception can be ingrafted upon the policy and taken from under its operation.

The rule that governs cases of this kind is expressed in the cases of *The Columbia Ins. Co.*v. *Lawrence,*10 Pet. 517; *Waters*v. *Mer. Lou. Ins. Co.,*11 Pet. 225 ; *City Fire Ins. Co.*v. *Corlies,*21 Wend. 371; *Millandon v. The Orleans Ins. Co.,*4 La. Ann. 15 ; *St. John*v. *American Mu. F. & M. Ins. Co.,*1 Kern. 518 ; *Hale*v. *The Wash. Ins. Co.,*2 Story, 184; Broom’s Legal Maxims, 278; *The Western Ins. Co.*v. *Cropper,*32 Penn. St. 356.

The view here taken is strengthened by another class of authorities. They are to the effect that the indemnity given by a policy of insurance, shall be as broad as the language of the policy, upon any fair interpretation of it, will admit. 1 Duer on Ins., sec. 5 — Lect. II., part 1, p. 161; *Snapp & Hanger*v. *The Mer. § Man. Ins. Co.,*8 Ohio St. 461; *Moadinger*v. *M. F. Ins. Co.,*2 Hall, *493; Stacy*v. *The Franklin Ins. Co.,*2 *W. &*S. 545.

The court will bear in mind that it is the written part of this policy that insures this steamer against loss or damage by fires; and these written terms are not to be set aside by equivocal, printed conditions, found in the general form, but the former do in fact set aside the latter whenever there is any inconsistency. Duer on Ins. 165, sec. 11 — Lect. II. 1; Angell on Ins. 11, sec. 15 ; *Hayward*v. *Liv. & Lon. Ins. Co.,*40 N. Y. 457; *Harper*v. *The N. Y. C. Ins. Co.,*22 N. Y. (3 Keys) 443, 444; *Pindar*v. *The Kings Co. Ins. Co.,*36 N. Y. 648; *Robertson et al.*v. *French,*4 East, 136.

The contract of insurance being the language of the insurer, must-be taken most strongly against the underwriter. *42Where there is any ground for fair doubt, this rule applies against the underwriter. *Blackett*v. *Assurance Co., 2*Cromp & J. 251; *Snapp*& *Hanger*v. *Mer. & Man. Ins. Co.,*8 Ohio St. 461, 462 ; *Donnell*v. *The Col. Ins. Co., 2*Sumn. 381; *Bullen*v. *Denning,*5 B. & C. 847; *Earl of Cardigan*v. *Armitage,*2 B. & C. 207; 1 Duer on Ins. 161, 162, sec. 6 ; *Western Ins. Co.*v. *Cropper et al.,*32 Penn. 355; *Knight*v. *Cambridge,*1 Strange, 581.

The maxim, *causa próxima, non remota spectatur,*is specially applicable to insurance contracts and to this case.

The maxim above quoted becomes especially necessary in insurance contracts in order that there may be a plain and intelligible rule by which the liability of the underwriters to the assured, and among themselves, can be ascertained. Suppose there had been another set of policies covering these boats against the perils of the river. What would that class of underwriters have said if sued for this loss? Would they not have replied, that the collision did no damage to the boat, but that she was burned up, and that the underwriters against peril by fire were bound for the loss ?

But for this maxim, what an interminable confusion and opportunity for litigation 1 Except forthis rule, how could any one adjust the cases,, and charge to the assured and to each set of underwriters their appropriate shares of the loss? Cases of the kind are not uncommon. See *Stacy*v. *Frank.*Ins. *Co., 2*W. & S. 506; *Gerodt*v. *Del. M. Ins. Co.,*31 Mo. 596; *Madison Ins. Co.*v. *Fellows,*Disney, 228 ; *The*Ass. *F. Ins. Co. v. Assum,*5 Md. 168; *Blake*v. *Ex. M. Ins. Co.,*12 Gray, 273; *How. Ins. Co.*v. *Scribner,*5 Hill, 301.

So complicated has the modern contract of insurance become, that it is now among the most difficult of practical affairs to adjust such losses satisfactorily; and only by strict compliance with this maxim in many of the cases can any adjustment be made.

And this maxim in fact is so applied to avoid such difficulties, and such application is established by the courts. *Perrin’s Adm’r*v. *Pro. Ins. Co.,*11 Ohio, 171; 2 Arnold on *43Ins. 766; *Dabney*v. *New Eng. M. M. Ins. Co.,*14 Allen, 309; *Ionides*v. *Uni. Mar. Ins.*Co., 14 C. B. 284; *Dixon*v. *Sadler,*5 Mees. & Wels. 414 ; *Thompson*v. *Hopper,*88 E. C. L. 937; *Livie*v. *Janson,*12 East, 653 ; 11 Johns. 27; *Green et al.*v. *Elmslie,*Peake’s N. P. Cas. 212;, *Tatham*v. *Hodgson,*6 Term, 659 ; *Powell*v. *Gudgeon,*5 Mau. & Sel. 436; *Norwich & N. Y. Trans. Co.*v. *Western Mass. Ins. Co.,*34 Conn. 561; *U. F. & M.. Ins. Co.*v. *Foote,*22 Ohio St. 350; *Boatman’s Ins. Co.*v. *Parker,*23 Ohio St. 95; *Maryland Fire Ins. Co. v. Whiteford.*

The collision was not the immediate • and proximate cause of the fire. It was two steps behind, and we look not to nearness in time, but to the order of events, though so near one another that we are unable to distinguish between them ; and in reference to the rapidity with which one link in the chain follows another, see *Dabney*v. *New Eng. M. M. Ins. Co.,*14 Allen, 309; *Columbia Ins. Co.*v. *Lawrence,*10 Pet. 517; *Dyer*v. *Piscatauqua F. & M. Ins. Co.,*53 Maine, 120.

That the law does not follow back from one causé or sequence to another, in cases of insurance, but rests upon the peril which appears to have injured or destroyed the property, is well settled by the following authorities: *Matthews*v. *The How. Ins. Co.,*1 Kern. 16; *Gen. M. Ins. Co.*v. *Sherwood,*14 How. 366; *The Ionides*v. *U. M. Ins. Co.,*14 C. B. 295; *Gates*v. *The Mad. Co. Ins. Co.,*1 Seld. 478; *Columbia Ins. Co.*v. *Lawrence,*10 Pet. 517, 518 ; *City F. Ins. Co. v. Corlies,*21 Wend. 371; *St. John*v. *The Am. Mu. Ins. Co.,*1 Kern. 523 ; *Sadler*v. *Dixon,*8 Mees. & Wels. 899; *Redman*v. *Wilson,*14 Mees. & Wels. 482 ; *Livie*v. *Janson,*12 East, 648, 653.

The courts look at the peril assumed, and whenever they find that the property has suffered from such peril, they do not go to the cause that produced the peril. This is well expressed in the above cases.

The proximate cause is the last link, the last sequence or final result, which is the destruction of the vessel. *The Ionides*v. *U. M. Ins. Co.,*14 C. B. (Scott), W. S. 284, 286, *44295; *Dabney*v. *New Eng. M. M. Ins. Co.,*14 Allen, 309; *Marble*v. *The City of Worcester, 4*Gray, 398.

In insurance law the simple fact that the steamer was destroyed by fire not originating in the fraud of the plaintiffs, or their employes, and not coming within any of the exceptions found in the policy, is all we have to look to, all we have to prove. It matters not what caused the fire, or how immediately the fire followed the cause, there being no exception excluding it, the loss is one for which the plaintiffs may recover.

The cases cited by plaintiff in- error do not sustain their position, but when carefully examined strengthen our view.

The case of *Thompson*v. *Hopper,*88 C. L. 171, cited and greatly l’elied on by plaintiff in error, is not the law of this country nor of England, as will be seen by the following authorities: *Perrin’s Adm’r*v. *The Pro. Ins. Co.,*11 Ohio, 147; *Johnson*v. *B. M. F. Ins. Co., 4*Allen, 390 ; *Chandler v. Wor. M. F. Ins. Co.,*3 Cush. 328; *Huckins*v. *The Peo. M. F. Ins. Co.,*11 Fost. 247; *Columbia Ins. Co.*v. *Lawrence,*10 Pet. 517 ; *Shaw*v. *Robberds,*6 Ad. & El. 83, 84 *; Brown*v. *Kings Co. F. Ins. Co.,*31 How. Prac. 512; *Gates*v. *Mad. Co. M. Ins. Co.,*1 Seld. 478; *Hynds*v. *The Schen. Co. M. Ins. Co.,*16 Barb. 127; *St. John*v. *The Am. M. F. & M. Ins. Co., 1*Duer, 381; *Catlin*v. *The Springfield F. Ins. Co.,*1 Sumn. 441; *Waters*v. *The Louis. Mer. Ins. Co.,*11 Pet. 220; *Thompson*v. *Hopper,*1 El., Bl. & El. 1051.

In some of these cases it was held that gross neglect of the assured himself, not amounting to fraud, was no defense.

The following *cases*— St. *John*v. *Amer. M. F. & M. Ins. Co.,*1 Kern. 518; *Roe et al.*v. *The Columbus Ins. Co.,*17 Mo. 304; *Montgomery*v. *Firemen’s Ins. Co.,*16 B. Mon. 442; *Strong*v. *The Sun M. Ins. Co.,*31 N. Y. 113; *Stanley*v. *The West. Ins. Co.,*3 Exch. 71 ; *Insurance Co.*v. *Tweed,*7 Wal. 44 — cited by plaintiff in error, contain excepting clauses, and the decision in each case rests upon the force of the exception, and can not avail the plaintiff here, who has no exception to go on. 12 Wal. 199.

*45II. There is no error upon the subject of barratry, to the prejudice of the plaintiff in error.

For a definition of barratry, see Webster; Worcester; 2 Arn. on Ins., 2 ed. 821, 825 ; *Lawton*v. *San M. Ins. Co.,*2 Cush. 511; *Earle*v. *Rowcroft,*8 East, 133; 1 Starkie, 191; Parsons on Ins. 550 ; *Marcardier*v. *Chesapeake Ins. Co.,*8 Cranch, 49 ; *Nutt et al.*v. *Bourdieu,*1 Term, 323; *Knight*v. *Cambridge,*1 Strange, 581 ; *Stamma*v. *Brown, 2*Strange, 1174; *Lockyer*v. *Offley,*1 Term, 259 ; *Vallejo*v. *Wheeler, 1*Cowper, 154; *Wilcocks et al.*v. *Union Ins. Co.,*2 Binn. 580; *Phyn*v. *Royal Ex.*Ass. *Co.,*7 Term, 503, 504; *Soares*v. *Thornton,*7 Taunt. 640; *Ross*v. *Hunter,*4 Term, 38 ; *Chandler*v. *Wor. M. F. Ins. Co.,*3 Cush. 330.

The case of *The Citizens’ Ins. Co.*v. *Marsh,*41 Penn. St. 394, is referred to by the plaintiff in error. It is difficult to see how the conduct complained of .in that case is barratry, as the master was himself the owner, and any conduct of the owner’, or with his consent, can not be barratry. This is universally agreed. 2 Arnould on Ins. 837 ; 1 Parsons on M. Ins. 571; 1 Phillips on Ins., sec. 1082; *Wilson*v. *Gen. M. Ins. Co.,*12 Cush. 365 ; *Marcardier*v. *Ches. Ins. Co.,*8 Cranch, 49 ; *Nutt et al.*v. *Bourdieu,*1 Term, 323; *Ross*v. *Hunter,*4 Term, 37; *Barry*v. *La. Ins. Co.,*11 Martin, 631; *Taggard*v. *Loring,*16 Mass. 340; *Pipon*v. *Cope,*1 Camp. 436; *Soares*v. *Thornton,*7 Taunt. 640.

The officers and crew of the United States could not commit barratry toward the America. *Cook*v. *Com. Ins. Co., 11*John. 43; *Kendrick*v. *Delafield,*2 Caine, 71; 1 Phillips on Ins., sec. 1080.

McIlvaine, J.

The court below charged, “ that if the jury were satisfied from the evidence that the steamboat America was destroyed by fire, and that no material injury was done her by the collision, then the plaintiff's are entitled to recover for said loss or damage caused by fire, notwithstanding such fire may have been caused by the collision,” and refused to charge as requested by the defendant below, “ that loss or damage from collision being ex-*46ceptecl, and the defendant not liable therefor, the defendant is not liable for any loss or damage from fire where a collision was the direct, immediate, and proximate cause of such fire, and without which the loss would never have occurred; in such a case the loss is to be attributed to the collision and not to the peril of fire.”

Whether there was error in the charge as given, or in refusing to charge as requested, depends solely upon the proper construction of the policy sued on. The form of the policy, as printed, assumes to insure against the perils of seas, lakes, rivers, etc.; but the contract of the parties, as evidenced by the terms therein *written,*which must control in its construction, clearly shows that the *only*risk assumed by the underwriter was loss by *fire;*and that the perils of rivers, etc., including *collisions,*were not insured against at all as proximate causes of loss or damage.

The undertaking of the defendant to insure “against loss by fire only,” must be held to embrace losses by fire generally, without regard .to the cause or causes which produced the fire. The qualifying word “ only,” was not intended to limit the liability of the insurer to losses by a fire caused by any particular agency, or to exclude such liability where the fire was caused by a particular agency, but simply to show that no risk whatever was assumed except loss by fire.

Such is the scope of an insurer’s liability arising upon the terms of a contract to insure against loss by fire only. In the policy now under construction, however, the parties, by subsequent clauses, excepted from the scope of the general undertaking of the insurer, losses occasioned by certain specified causes — that is to say, losses by fire produced by the causes named in the exceptions. See *The United L., F. & M. Ins. Co.*v. *Foote,*22 Ohio St. 850. Among the causes of fire so excepted, however, collisions are not named.

The court below, therefore, did not err in refusing to charge as requested by the defendant, for the reason that the request assumed that “ loss or damage from collision ” *47was *excepted*from the risks covered by the terms of the contract; which assumption was contrary to the true construction of the policy. Nor was there error in the charge as given.

Among the losses excepted from the risk by the warranties in the policy, was loss or damage caused by barratry.

Testimony had been offered on the trial tending to prove that the pilot of the America had neglected and failed to observe the rules established under the act of Congress, by the supervising inspectors, for his observance in such case, whereby the collision was caused. And other testimony had been offered tending to prove that such neglect or failure to observe the rules by the pilot was neither willful or fraudulent on his part; and further, that if the rules were departed from at all, it was in an emergency, in which the pilot honestly believed that it was necessary to do so in order to avoid a collision.

Upon this subject the court charged the jury as follows:

> “ The second defense is barratry, which may be said to comprehend not only every species of fraud and knavery committed by the master or pilot, with the intention of benefiting himself at- the expense of the owners of the boat, but every willful act on his part of known illegality, whereby the owners are in fact injured. It consists of some fraudulent act intended to injure them, or of a willful violation of known positive law in the navigation or management of the vessel from which the loss resulted.”

[The court here read the rules and the act of Congress as recited in the statement of this case, and continued:]

> “These rules are intended to avoid collisions between boats ascending and descending the river, and they prescribe the course to be pursued by the pilots. They are made to be observed, and are binding as law upon the pilots, subject, however, to any emergencies by which it may become necessary to depart from them to escape or avoid immediate danger from collision or other perils.

> “ It is claimed that the pilot willfully violated these rules of navigation, established under a law of Congress, by fail*48ing to give the signals required by the rules, and by omitting to stop when the boats had come within a distauce of eight hundred yards. These rules are in evidence, and the pilots are bound to obey them unless some emergency in the course of navigation occurs justifying a departure from them to avoid a collision or other danger.

> “ The rules require that when the boats have approached within one mile, the pilot of the ascending boat shall sound the whistle to notify the pilot of the descending boat on which side he will pass; and that if the signals are not answered and understood by the time the boats have approached to the distance of eight hundred yards, he shall stop his boat until the signals are corrected and understood. Now, if the pilot of the America, on approaching the United States, when they had approached within the mile, knew or believed that they had come within the mile, and chose to omit to give the signal required by the rule; or, if when he knew or believed that they had approached within the eight hundred yards, without satisfactory signals, he did not stop, although he knew that the rules required that he should stop, but chose to risk the violation of the rule, and the result of such violation of the rule was the loss, that would constitute such misconduct of the pilot as to prevent a recovery, though he did not actually intend an injury to the owners. He is not at liberty to prefer his own judgment to the rule required by law, unless there be some emergency requiring a departure from the rule. But he must deliberately, or voluntarily and knowingly violate the rule in order to constitute such misconduct as to prevent a recovery. The rules are made to be observed by pilots; they are intended for the safety of the public and for the protection of the owners. Whether they are the best that can be made or not, while in force they must be observed, and a willful disregard of them is misconduct; and if a loss is caused thereby to the owners, it is a loss by barratry, which is excepted from this policy.

> “ But in establishing this defense, the burden of the proof is on the defendants. They must make it appear *49by a fair preponderance of evidence that the pilot of the America did violate the rules knowingly, and the loss was the consequence.

> “Mere error of fact or of law is not sufficient to establish a defense on this ground. The pilot must know his duty, and decline to do it. If he supposed that the distance was a mile when he gave the first signal, and intended to comply with the rule by the signal which he gave, the fact that he may have been mistaken in his estimate of the distance is not misconduct, which is a defense. So, if when the boats approached to the distance of eight hundred yards, the pilot of the America knew it, or believed it, and knew that the signals had not been answered or properly understood, and yet failed to stop or back his boat according to the law, that would be such misconduct as would be a defense against a suit for a loss caused by it. But if by reason of the darkness of the night, or other causes not under his control, he was mistaken as to the fact of their approach to the distance of eight hundred yards, until they had approached much nearer, such mistake would not be misconduct to defeat a recovery.

> “ The pilot is not to set up his judgment against the rules, unless there arises an emergency in which he should honestly believe that it was necessary to depart from the rule to avoid a collision or avoid danger. But .if he, in good faith, endeavored to comply with the rules, of navigation and to avoid a collision, though he may have erred in his-estimate of distances, and though he may have been mistaken as to the interpretation of the rules, he can not beheld to be guilty of such misconduct as to constitute a-defense.

> “You will limit your inquiry on this subject to the conduct of the pilot in charge of the America, as the only barratry which can defeat this suit must be of the officer© or crew of the boat, for the loss of which this suit is brought.”

We find no error in these instructions of which the de*50fendant had right to complain; nor do we find any error in the record, for which the judgment should be reversed.

*Judgment affirmed.*

Day, C. J., and Welch, White, and Res, JJ., concurring.