that the damage done to the Virginia was caused by negligence-that is, by stating the cause of the damage-that the cause of payment appears, and, when it appears, it is seen to be the negligence of the servants of the assured.

We know of no principle of insurance law which prevents us from looking for this sole operative cause, or requires us to stop short of it in applying the maxim, Causa proxima non remota spectatur. The argument is, that collision being a peril of the sea, the negligence which caused that peril to occur is not to be inquired into; it lies behind the peril and is too remote. This is true when the loss was inflicted by collision, or was by law a necessary consequence of it. The underwriter cannot set up the negligence of the servants of the assured as a defense. But in this case he does not seek to go behind the cause of loss, and defend himself by showing this cause was produced by negligence. The insured himself goes behind the collision, and shows as the sole reason why he has paid the money, that the negligence of his servants compelled him to pay it. It is true that an expense attached by the law maritime to the subject insured, solely as a consequence of a peril, may be considered as proximately caused by that peril. But where the expense is attached to the vessel insured not solely in consequence of a peril, but in consequence of the misconduct of the servants of the assured, the peril per se is not the efficient cause of the loss, and cannot in any just sense be considered its proximate cause. In such a case the real cause is the negligence, and unless the policy can be so interpreted as to insure against all losses directly referable to the negligence of the master and mariners, such a loss is not covered by the policy. We are of opinion the policy cannot be so construed. When a peril of the sea is the proximate cause of a loss, the negli gence which caused that peril is not inquired into; not because the underwriter has taken upon himself all risks arising from negligence, but because he has assumed to indemnify the insured against losses from particular perils, and the assured has not warranted that his servants will use due care to avoid them.

These views are sustained by many authorities. Mr. Arnould, in his valuable treatise on insurance, (2 vol. p. 775,) lays down the correct rule: "Where the loss is not proximately caused by the perils of the sea, but is directly referable to the negligence or misconduct of the master or other agents of the assured, not amounting to barratry, there seems little doubt that the underwriters would be thereby discharged." To this rule must be referred that class of cases, in which the misconduct of the master or mariners has either aggravated the consequences of a peril insured against, or been of itself the efficient cause of the whole loss. Thus if damage be done by a peril insured against, and the master neglects to repair that damage, and in consequence of the want of such repairs the vessel is lost, the neglect to make repairs, and not the sea damage, has been treated as the proximate cause of the loss. In the case of Copeland vs. The N. E. Marine Ins. Co. (2 Met. 432,) Mr. Chief Justice Shaw reviews many of the cases, and states that, "The actual cause of the loss is the want of repair for which the assured are responsible, and not the sea damage which caused the want of repair, for which it is admitted the underwriters are responsible." And the same principles were applied by Mr. Justice Story in the case of Hazard vs. N. E. Marine Ins. Co., (1 Sum. R. 230,) where the loss was by worms, which got access to the vessel in consequence of her bottom being injured by stranding, which injury the master neglected to repair. So where a vessel has been lost or disabled, and the cargo saved, a loss caused by the neglect of the master to tranship, or repair his vessel and carry the cargo, cannot be recovered. Schieflin vs. N. E. Ins. Co. (9 John 21;) Bradhurst vs. Col. Ins. Co. (9 John 17;) Am. Ins. Co. vs. Centre, (4 Wend. 45;) S. C. (7 Cow. 504;) McGaw vs. Ocean. Ins. Co., (23 Pick. 405.) So where condemnation of a neutral vessel was caused by resistance of search; Robinson vs. Jones, (8 Mass. 536;) or a loss arose from the master's negligently leaving the ship's register on shore; Cleveland vs. Union Ins. Co., (8 Mass. 308.) So where a vessel was burnt by the public authorities of a place into which the master sailed with a false bill of health, having the plague on board; Emerigon, (by Meredith,) 348; in these and many other similar cases the courts, having found the efficient cause of the loss to be some neglect of duty by

the master, have held the underwriter discharged. Yet it is obvious that in all such cases one of the perils insured against fell on the vessel. And they are to be reconciled with the other rule, that a loss caused by a peril of the sea is to be borne by the underwriter, though the master did not use due care to avoid the peril, by bearing in mind that in these cases it is negligence, and not simply a peril of the sea, which is the operative cause of the loss. It may sometimes be difficult to trace this distinction, and mistakes have doubtless been made in applying it, but it is one of no small importance in the law of insurance, and cannot be disregarded without producing confusion. The two rules are in themselves consistent. Indeed, they are both but applications to different cases of the maxim, Causa proxima non remota spectatur. In applying this maxim, in looking for the proximate cause of the loss, if it is found to be a peril of the sea, we inquire no further; we do not look for the cause of that peril. But if the peril of the sea which operated in a given case was not of itself sufficient to occasion and did not in and by itself occasion the loss claimed; if it depended upon the cause of that peril whether the loss claimed would follow it, and therefore a particular cause of the peril is essential to be shown by the assured; then we must look beyond the peril to its cause to ascertain the efficient cause of the loss.

The case at bar presents an illustration of both rules. So far as the brig Emily was herself injured by the collision, the cause of the loss was the collision, which was a peril insured against, and the assured showing that his vessel suffered damage from that cause, makes a case and is entitled to recover. But he claims to recover not only for the damages done to his vessel which was insured, but for damages done to the other vessel not insured. To entitle himself to recover these, he must show not only that they were suffered by a peril of the sea, but that the underwriter is responsible for the consequences of that peril falling on a vessel not insured. It is this responsibility which is the sole basis of his claim, and to make out this responsibility he does not and cannot rest upon the occurrence of a collision; this affords no ground for his claim; he must show a particular cause for that collision; and aver that by reason of the existence of that cause the loss was suffered by him, and so the underwriter became responsible for it.

This negligence is therefore the fact without which the loss would not have been suffered by the plaintiff, and by its operation the loss is suffered by him. In the strictest sense it causes the loss to the plaintiff. The loss of the owners of the Virginia was occasioned by a peril of the sea, by which their vessel was injured. But nothing connects the plaintiff with that loss, or makes it his, except the negligence of his servants. Of his loss this negligence is the only efficient cause, and in the sense of the law it is the proximate cause.

The ablest writers of the continent of Europe on the subject of insurance law have distinctly declared, that in case of damage to another vessel solely through the fault of the master or mariners of the assured vessel, the damage must be repaired by him who occasioned it, and the insurer is not liable for it. Pothier, Traite d'Assurance, No. 49, 50; Boucher, 1500, 1501, 1502; 4 Boulay Paty, Droit Maritime, (ed. of 1823,) 14-16, Santayra's Com. 7, 223; Emerigon, (by Meredith,) 337. If the law of England is to be considered settled by the case of De Vaux vs. Salvador, (4 Ad. and El. 420,) it is clear such a loss could not be recovered there. Mr. Marshall is evidently of opinion, that unless the misconduct of the master and crew amounted to barratry, the loss could not be recovered, (Marsh. on Ins. 495.) And Mr. Phillips so states in terms, (1 Phil. on Ins. 636.)

It has been urged that in the case of the Paragon, Peters vs. Warren Ins. Co., (14 Pet. 99,) this court adopted a rule which, if applied to the case at bar, would entitle the insured to recover. But we do not so consider it. It was there determined that a collision without fault was the proximate cause of that loss. Indeed, unless the operation of law, which fixed the lien, could be regarded as the cause of that loss, there was no cause but the collision, and that was a peril insured against.

We are aware that in the case of Hall vs. Washington Ins. Co., (2 Story,) Mr. Justice Story took a different view of this question, and we are informed that the

Supreme Court of Massachusetts has recently decided a case in conformity with his opinion, which is not yet in print, and which we have not been able to see. But with great respect for that very eminent judge, and for that learned and abie court, we think the rule we adopt is more in conformity with sound principle, as well as with the practical interpretation of the contract by underwriters and merchants, and that it is the safer and more expedient rule.

We cannot doubt that the knowledge by owners, masters, and seamen, that underwriters are responsible for all the damage done by collision with other vessels through their negligence, would tend to relax their vigilance, and materially enhance the perils, both to life and property, arising from this cause.

The judgment of the Circuit Court must be reversed, and the cause remanded with directions to render a judgment for the defendants on the demurrer to the first two counts, and award a venire de novo to try the general issue pleaded to the other counts.

We append some remarks from our Boston correspondent, refered to in our introduction to the preceding decision of the Supreme Court of the United States, which was, as will be seen, delivered by Judge Curtis. The remarks of the writer, a practical merchant, are entitled to the highest respect.

The opinion of the court, delivered by Judge Curtis, at the last term at Wash ington, reverses the previous decisions of Judge Story of the same court, and comes in direct conflict with the decisions of the Supreme Court of Massachu setts, by which it has been held that "underwriters are liable to repay to the insured, damages paid by him to the owners of another vessel and cargo, suffered in a collision occasioned by the negligence of the master or mariners of the

vessel insured."

This liability of underwriters is one which they have never been willing to acknowledge, or at least have acknowledged with reluctance; but the decisions of our State Courts have established the fact, that it was a liability which they assumed in their policies, and the underwriters of Boston have in more than one instance paid losses of the kind referred to.

Nevertheless, the Supreme Court of the United States is the highest tribunal in the land, and though its decisions do not necessarily change those of our State Courts, still its influence cannot fail to be in some degree felt; and underwriters, with the weight of such powerful opinions on their side, will be more than ever reluctant to acknowledge a liability which they have always endeavored to repudiate.

As collision is one of the most prominent perils of the sea, it would seem to be one of the risks most necessary to insure against, and the damage resulting from collision, whether to the vessel insured or to the vessel not insured, but caused by the fault of the insured vessel, which is responsible for the damages done to the other vessel, is a risk which should be covered by insurance; and if there is any doubts of this risk being covered by the policies of insurance now granted by underwriters in this country, the sooner these doubts are solved, by a modification of the terms of the policy, the greater will be the security of the ship

owners.

The object of effecting insurance is generally supposed to be to protect the assured from all the ordinary losses which he is likely to meet with; and underwriters have always been content to take the risk of the negligence, carelessness, or fault of the master or mariners of vessels, when through such carelessness or fault the vessel insured was stranded, or lost, or even damaged by collision.

The distinction then that they are not liable for damages done to the vessel not insured by the one insured, through the fault of the latter, will, we fancy, hardly be recognized by merchants, for if the insured vessel is liable for such damages, it is clearly a damage to herself and her owners; and the fault of the master or mariners should be insured against in this case, and the owner protected from loss, the same as if the vessel had been carelessly stranded. If this

principle be not recognized, every one can see to what fearful losses those interested in navigation would be liable.

Valuable ships and valuable freights would be lost, and the owners, though nominally protected by insurance, might find themselves and their families reduced from affluence to poverty. The foundations, even, of commercial security would be undermined.

To underwriters the risk is a small one, but to individuals it is of great magnitude. If the former find their rates too low to cover this risk, they should raise them, but the principle should be established, and established without delay. To effect this it seems desirable that there should be a public meeting of ship owners, and that some general action should be had on the subject, that a correct understanding of the same may be arrived at, and an effort made to have policies of insurance so framed, that those interested in navigation will be protected from losses occurring by collision.

ACTION TO COVER AN EXCESS OF DUTIES PAID UNDER PROTEST.

D.

The case of Otis Norcross vs. Philip Greeley, Jr., Collector of the Port of Boston, recently determined in the Circuit Court of the United States for the District of Massachusetts, is of special importance to importers. The action was brought to cover an excess of duties paid under protest by the plaintiff, upon the importation of parcels of crockery ware. The complaint is, that, in valuing the merchandise for the assessment of duties, there was added to the invoice cost, and to the other charges, a commission of 24 per cent; and it was decided that duties were chargeable upon the commissions, though, in fact, no commissions were paid.

The tariff act of August 30, 1842, explained by the act of March 3, 1851, provides, that the value of the article upon which the duty is to be charged shall be ascertained in a certain manner, and that "to such value or price shall be added all costs and charges except insurance, and including in every case a charge for commissions at the usual rates."

The plaintiff introduced evidence tending to prove that when the dealers here in this species of merchandise give orders to an agent of a manufacturer, or to a person established here, who is a correspondent of an English manufacturer, or send their orders themselves directly to a manufacturer, they pay no commission. But in other cases, in which the merchandise is bought in market, either for the dealers, or for the person here who undertakes to supply the dealers, a commission is paid; and in such cases 24 per cent is the usual rate of commission.

The plaintiffs contended that the purpose of Congress was to have the value of the article, when ready to go into consumption here ascertained; that for this purpose there was to be added to its cost or value abroad the expenses of procuring and bringing it here; that if from the nature and general course of trade a charge for commissions is not usually in fact incurred, then such charge does not enter into, or constitute a part of the value of the article when ready for consumption here; and therefore to include a commission in such cases would be merely arbitrary. It was also argued that not in every case was a commission to be added, but it should be added only in those cases in which it was usual to pay a commission.

Judge Curtis, in delivering the opinion of the court, said that a direction to include in every case a charge for commissions at the usual rates, is certainly not complied with if such a charge is omitted in every case. The words, "in every case" apply to the act of including a commission as well as to the rate of that commission. The fact that the court does not perceive the propriety or practical expediency of the rule, as expressed in a revenue law, is not a sufficient reason for the rejection of this natural and obvious meaning of the lan-. guage of Congress, and the adoption of a different and more restricted rule. A striking illustration of this may be seen in a recent case against the Collector at New York, decided in the United States Supreme Court. The act of March 2, 1799, sec. 59, had directed an allowance of two per cent to be made for the

leakage of liquors in casks, paying a specific duty by the gallon. The tariff act of 1846 had repealed the specific, and substituted ad valorem duties on all liquors. No reason could be given why the allowance should be made in the one case and not in the other. But the court held, that the deduction could not be made, although the effect was to include in the valuation, owing to usual leakage, woald not go into consumption in this country.

It was therefore held by the court, that by the proper construction of this clause of the act, a commission should in all cases be added to the invoice value, although in fact no commission is paid, and although it is not customary for the importers of the article in question to pay any commission.

COMMERCIAL CHRONICLE AND REVIEW.

OPENING OF THE FALL TRADE AT BOSTON, NEW YORK, AND PHILADELPHIA-TRADE IN DOMESTIC COTTONS WITH MEXICO-DO. WITH CHINA-TOTAL FOREIGN SHIPMENTS OF PLAIN COTTONS FROM BOSTON AND NEW YORK-POSITION AND PROSPECTS OF MONETARY AFFAIRS-EFFECT OF EUROPEAN TROUBLES UPON THE PROSPERITY OF THIS COUNTRY-THE SMALL NOTE CURRENCY WITH THE MEANS OF CURTAILING IT-CONDITION OF THE BANKS OF NEW ORLEANS AND NEW YORKSTATEMENT OF THE BANKS IN TENNESSEE-PRODUCT OF GOLD IN CALIFORNIA-WITH DEPOSITS AND COINAGE AT PHILADELPHIA AND NEW ORLEANS MINTS-IMPORTS OF FOREIGN GOODS AT NEW YORK FOR JUNE-IMPORTS FROM JANUARY 1ST, AND FOR THE FISCAL YEAR ENDING JUNE 30THIMPORTS OF DRY GOODS FOR VARIOUS PERIODS, SHOWING A LARGE INCREASE-CASH REVENUE FOR THE FISCAL YEAR-EXPORTS FROM NEW YORK FOR THE MONTH, AND FOR THE FISCAL YEARSHIPMENTS OF LEADING ARTICLES OF DOMESTIC PRODUCE-PROSPECTS OF THE TRADE IN CEREALS, ETC., ETC.

THE fall trade has now fairly commenced, and there is unusual activity throughout the whole length of the Union. At Boston the demand for plain cottons for the home trade has been sufficient to sustain prices, notwithstanding the falling off in the orders for export. The various channels throughout the interior had become quite bare of stock, so that a temporary lull in the foreign trade will only enable our manufacturers to bring up arrears in this particular. Since Santa Anna has assumed the reins of government in Mexico, the rate of duty on cotton goods has once more been raised to a prohibitory standard, and we may, therefore, look for a further interruption of the regular trade in that direction, and a resort to the old system of smuggling. The market there must be, however, furnished with a full year's supply of yankee cottons, since the trade, during the few brief months that the tariff was relaxed, has been very large. As a proof of this, we may mention that the clearances of domestics from New York for Mexico, during the year 1849, were only 1,920 packages; for the year 1850, 2,463 packages; for the year 1851, 820 packages; for the year 1852, 1,479 packages; while, for the first six months of 1853, they amounted to 8,031! This extraordinary quantity, comprising one-third of the whole shipments from that port for the time specified, (the total to all foreign ports from New York being 24,605 bales,) must be in advance of the demand for consumption there, and must afford a supply for some time to come. How long the interruption to the China trade will continue, cannot now be foreseen; but the shipments to the East Indies for the last six months have not been as large as for the corresponding period of the previous year, so that there can be little accumulation, beyond the probable necessities of the people. The following will show the exports of