By the Court, Johnson, J.
A collision is a peril, insured against by a policy, under the general terms perils of the sea, or perils of the lakes. And where another vessel is injured by a collision, in such a manner that the insured are compelled to respond in damages, the insurers are liable to the insured for such damages, under the contract. This general proposition seems to be now well established as a principle of the law of marine insurance in this country. (Peters v. The Warren Insurance Company, 14 Peters, 99. Hall v. The Washington Insurance Company, 2 Story's Rep. 176.) It is objected by the defendants’ counsel that the insured vessel in this case was not injured by the collision, hut wont safely upon her voyage. But that circumstance can make no difference if the damage falls within the contract. In the two eases cited it is true the insured vessels were more or less injured by the collision. But I do not perceive that the claim of the owners of the other vessel upon the insured for damages, nor the question whether such damage falls within the contract of insurance, is in the least affected by the fact that the insured vessel was not crippled or injured by the collision. The damage to the injured vessel either falls within the policy, and is covered by it, or it does not. If it falls within it, it is perfectly immaterial what further injury or mischief ensued, or whether any other did ensue. It is still an injury flowing directly from the collision, and to its extent is just as prejudicial to the insured as though inflicted wholly upon their own vessel.
But the cause of the collision is alledged to have been the carelessness and negligence of the master and crew of the in[243] sured vessel; and the important question to he determined in this case is whether the insured can be permitted to recover the damages they have been compelled to pay, resulting from a collision which happened by the carelessness and negligence of their own servants and agents. The affirmative of this propo; sition is certainly at first view not a little startling and repugnant to our innate sense of justice. It virtually makes the insurer the guarantor of the faithfulness and vigilance of the agents and servants of the insured, in whose selection he has had no voice, and over whose conduct he has no supervision or control. It enables the insured to use his own wrong or neglect of duty as a substantial ground of recovery, and to create a peril at will to the injury of the other party. It is perfectly obvious that without establishing carelessness and negligence against the master and crew of the insured vessel as the cause of the collision there could have been no recovery of damages against the plaintiff. But whatever we may think the rule ought to be, it is the duty of the court to ascertain and declare what it is, as the judicial tribunals of the country have established it. In the case of Grier v. The Phenix Ins. Co., (13 John. 451,) where the vessel, among other risks, was insured against fire, it was held that the insurers were not responsible for loss from fire which was occasioned by the carelessness of one of the crew, not amounting to barratry. That case underwent a very thorough and able discussion, and the decision was unanimous, and it has never yet been overruled in this state. It must be admitted, however, that ever since that decision the current of decisions and authority in this country has been setting pretty steadily and uniformly against it, until its authoritative force is very much weakened if not entirely overthrown. In that case Chief Justice Thompson, who delivered the opinion of the court, cited and relied upon the case of Cleveland v. The Union Ins. Co., (8 Mass. R. 308,) in which the supreme court of Massar chusetts had established a similar doctrine. The supreme court of Ohio also laid down the same rule in Lodwick v. The Ohio Ins. Co., (5 Ohio R. 436,) and Fulton v. The Lancaster Ins. Co., (7 Id. 2.) The saíne question came befóte the supreme [244] court of the United States in The Patapsco Ins. Co. v. Coulter, (3 Peters, 222,) and it was there held that if the proximate cause of the loss was a peril insured against, the loss is within the policy, and the insurers liable, although the negligence of the master or mariners may have been the remote cause. In that case the cases of Grier v. The Phenix Ins. Co., and Cleveland v. The Union Ins. Co., were both cited, and held not to be law. Thompson, justice, who delivered the opinion of the court in Grier v. The Phenix Ins. Co. and Baldwin, justice, dissented from the ruling of the majority. The principle laid down in The Patapsco Ins. Co. v. Coulter, has been repeatedly reaffirmed by that court, and is now the settled and well established rule. (Columbia Ins. Co. v. Lawrence, 10 Peters, 507. Wallers v. Merchants’ Ins. Co., 11 Id. 213. Peters v. Warren Ins. Co., 14 Id. 99. Hale v. Washington Ins. Co., 2 Story’s R. 176. Sherwood v. Mutual Ins. Co.) The latter case was decided at the New-York circuit, and is reported at length in Hunt’s Merchants’ Magazine, Feb. 1848. It is almost precisely like the case under consideration. The same rule prevails in England, and is well settled by numerous decisions. (Busk v. The Royal Ex. Ass. Co., 2 Barn, & Ald. 73. Walker v. Maitland, 5 Id. 74. Dixon v. Sadler, 5 Mees. & Weis. 405; S. C. 8 Id. 895.)
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By the Court, Johnson, J.
A collision is a peril, insured against by a policy, under the general terms perils of the sea, or perils of the lakes. And where another vessel is injured by a collision, in such a manner that the insured are compelled to respond in damages, the insurers are liable to the insured for such damages, under the contract. This general proposition seems to be now well established as a principle of the law of marine insurance in this country. (Peters v. The Warren Insurance Company, 14 Peters, 99. Hall v. The Washington Insurance Company, 2 Story's Rep. 176.) It is objected by the defendants’ counsel that the insured vessel in this case was not injured by the collision, hut wont safely upon her voyage. But that circumstance can make no difference if the damage falls within the contract. In the two eases cited it is true the insured vessels were more or less injured by the collision. But I do not perceive that the claim of the owners of the other vessel upon the insured for damages, nor the question whether such damage falls within the contract of insurance, is in the least affected by the fact that the insured vessel was not crippled or injured by the collision. The damage to the injured vessel either falls within the policy, and is covered by it, or it does not. If it falls within it, it is perfectly immaterial what further injury or mischief ensued, or whether any other did ensue. It is still an injury flowing directly from the collision, and to its extent is just as prejudicial to the insured as though inflicted wholly upon their own vessel.
But the cause of the collision is alledged to have been the carelessness and negligence of the master and crew of the in[243] sured vessel; and the important question to he determined in this case is whether the insured can be permitted to recover the damages they have been compelled to pay, resulting from a collision which happened by the carelessness and negligence of their own servants and agents. The affirmative of this propo; sition is certainly at first view not a little startling and repugnant to our innate sense of justice. It virtually makes the insurer the guarantor of the faithfulness and vigilance of the agents and servants of the insured, in whose selection he has had no voice, and over whose conduct he has no supervision or control. It enables the insured to use his own wrong or neglect of duty as a substantial ground of recovery, and to create a peril at will to the injury of the other party. It is perfectly obvious that without establishing carelessness and negligence against the master and crew of the insured vessel as the cause of the collision there could have been no recovery of damages against the plaintiff. But whatever we may think the rule ought to be, it is the duty of the court to ascertain and declare what it is, as the judicial tribunals of the country have established it. In the case of Grier v. The Phenix Ins. Co., (13 John. 451,) where the vessel, among other risks, was insured against fire, it was held that the insurers were not responsible for loss from fire which was occasioned by the carelessness of one of the crew, not amounting to barratry. That case underwent a very thorough and able discussion, and the decision was unanimous, and it has never yet been overruled in this state. It must be admitted, however, that ever since that decision the current of decisions and authority in this country has been setting pretty steadily and uniformly against it, until its authoritative force is very much weakened if not entirely overthrown. In that case Chief Justice Thompson, who delivered the opinion of the court, cited and relied upon the case of Cleveland v. The Union Ins. Co., (8 Mass. R. 308,) in which the supreme court of Massar chusetts had established a similar doctrine. The supreme court of Ohio also laid down the same rule in Lodwick v. The Ohio Ins. Co., (5 Ohio R. 436,) and Fulton v. The Lancaster Ins. Co., (7 Id. 2.) The saíne question came befóte the supreme [244] court of the United States in The Patapsco Ins. Co. v. Coulter, (3 Peters, 222,) and it was there held that if the proximate cause of the loss was a peril insured against, the loss is within the policy, and the insurers liable, although the negligence of the master or mariners may have been the remote cause. In that case the cases of Grier v. The Phenix Ins. Co., and Cleveland v. The Union Ins. Co., were both cited, and held not to be law. Thompson, justice, who delivered the opinion of the court in Grier v. The Phenix Ins. Co. and Baldwin, justice, dissented from the ruling of the majority. The principle laid down in The Patapsco Ins. Co. v. Coulter, has been repeatedly reaffirmed by that court, and is now the settled and well established rule. (Columbia Ins. Co. v. Lawrence, 10 Peters, 507. Wallers v. Merchants’ Ins. Co., 11 Id. 213. Peters v. Warren Ins. Co., 14 Id. 99. Hale v. Washington Ins. Co., 2 Story’s R. 176. Sherwood v. Mutual Ins. Co.) The latter case was decided at the New-York circuit, and is reported at length in Hunt’s Merchants’ Magazine, Feb. 1848. It is almost precisely like the case under consideration. The same rule prevails in England, and is well settled by numerous decisions. (Busk v. The Royal Ex. Ass. Co., 2 Barn, & Ald. 73. Walker v. Maitland, 5 Id. 74. Dixon v. Sadler, 5 Mees. & Weis. 405; S. C. 8 Id. 895.)
In Massachusetts the supreme court has receded from the grounds assumed in Cleveland v. The Union Ins. Co., and established the rule in accordance with the decisions of the United States court. (Copeland v. New England Ins. Co., 2 Metc. 432.) The supreme court of Ohio has also followed the example and overruled the former decisions in that state. (Perrin v. Protection Ins. Co., 11 Ohio R. 147.) Chancellor Kent, (3 Kent’s Com. 304, n. a,) declares that the weight of authority is decidedly against the ruling in Grier v. The Phenix Ins. Co. Verplanck, senator, in the case of Am. Ins. Co. v. Bryan, in the court for the correction of errors, (26 Wend. 583,) says, “ In late years our courts have held upon good reasons of policy and equity, that underwriters were not discharged from risks expressly assumed, because the losses were incurred remotely or [245] consequently by the default of the master or mariners and he cites the rule laid down by Judge Story in Walters v. Merchants' Ins. Co. with approbation. “ That in all cases of loss we are to attribute it to the proximate and not the remote cause. (See also Smith's Mercantile Law, 347, 348, and notes.) It will be seen from this review that the case of Grier v. The Phenix Ins. Co. in our court stands alone, and unsupported by any authority. It has been held not to be the law in the highest tribunals in the nation. It has been abandoned by the courts in our sister states, who formerly recognized it as authority, and in the highest court in our own state, rules have been admitted as law utterly repugnant to the rule there declared. I confess I do not see so clearly as others profess to have seen “ the good reasons of policy and equity,” which have led to the rejection of the rule there asserted. But I feel constrained, nevertheless, by the force of authority, to declare that the doctrine of that case is not law, even here.
It was very ingeniously argued by the defendants’ counsel that the proximate cause of the loss here must have been the negligence of the master and crew of the • Ontario, as without proof of that, no recovery for the loss or damage could have been had against the plaintiffs by the owners of the injured vessel. It is true that it must have appeared that the collision was consequent upon the carelessness and negligence, or no recovery could have been had. But it does not follow from this that the proximate cause was not the collision. Whether the collision is the proximate cause of an injury or not does not depend upon the nature of the causes which produced the collision. The proximate cause is the same whether the collision results from an act of God or human agency. Nor was it essential to the recovery against the plaintiffs that the proximate cause of the injury should have been the negligence. All that was essential to show was that the collision was the consequence of the negligence.
It is clear enough that the collision was, as it has always been held, the proximate cause of the damage for which the recovery was had. That being a peril insured against by the terms' and [246] meaning of the policy, the recovery at the special term was proper. The judgment of the special term must therefore he affirmed.
[Cayuga General Term,
June 7, 1852.
Selden, T. R. Strong and Johnson, Justices.]