只见鸟语，未闻花香

好久没有更新，今天上来灌个水，越来越佩服鸟语的魅力了，今天上午瞪着不到两页A4的这段蚂蚁文大约两个小时，愣是没看明白！哈哈！爽的我快哭了！贴上来留念一下。路过的大可不必理我，脑子烧短路了～

My Lords, whether what is said in Small's Case is a decision or a dictum, it is in itself so important, that the Legislature could hardly have failed to put it right, if it were wrong. The subject is dealt with in s. 55. The proposition is that a loss caused by wilful misconduct involving the sinking or burning of the ship is a loss, for which under the ordinary wording the insurer is not liable. Why, if so, does not s. 55, sub-s. 2 (b), add wilful misconduct to delay as a proximate cause of loss, for which it expressly states that the insurer is not liable? Had it done so it would at once have corrected Small's Caseand have affirmed a general and important rule. Again, if this proposition is true, why does s. 55, sub-s. 2 (a), say that the insurer is not liable for wilful misconduct of the assured? The insurer can only be liable for losses covered by perils insured against, and, if he is never liable for losses caused by wilful misconduct, why specify the particular case and omit to state the general rule? Why is the language varied and the words "attributable to" used instead of "proximately caused by"? If the code *472 meant to affirm the disputed passage in Small's Case, the words in s. 55, sub-s. 1, - "is liable for any loss proximately caused by a peril insured against" - are adequate for the purpose. If the Legislature intended to correct it, that intention failed. Again, if non-liability for losses attributable to wilful misconduct is a personal disqualification preventing the recovery of something otherwise recoverable, the addition of the words "of the assured" is apt; otherwise it is otiose. On the other hand, as sub-s. 1 states the general rule of liability, first affirmatively and then negatively, and sub-s. 2 begins "in particular ....," the sub-section is the expression of particular cases of non-liability. What is there to show that this expression is not meant to be exhaustive? Why is loss attributable to some one's wilful misconduct omitted from the code and left to be implied at common law? As a matter of construction s. 55 seems to me to prescribe that the assured's wilful misconduct is a ground for refusing to him, but to him only, the indemnity, which the proximate origin of the loss would otherwise have brought about. It is to be observed that the whole section is framed to state for what an insurer is liable, that is, upon a policy to a person assured by that policy, and is not framed as a definition of proximate or of remote causes. In fact perils insured against are causes and losses are effects. If the proximate cause of the effect, be it what it may, is not within the perils named in the policy, there is no liability, and no more need be said about it. I cannot see any need for introducing this question of misconduct, unless it is first assumed that the loss has been brought within the policy by being proximately caused by perils mentioned therein. If so, wilful misconduct constitutes a case of exception, but of exception out of the insurer's liability to the assured who has misconducted himself, and not out of the perils covered by the policy, and the statement then becomes relevant to the section, because the object of the section is to declare for what the insurer is liable and for what he is not. Finally, if no loss is a loss by perils of the sea that is caused by human volition and is substantially what has been willed, why should there be a rule at all to *473 negative liability for losses attributable to wilful misconduct of the assured? The case is only a particular instance of the wider general proposition and is already covered by it.