Argument for Respondents. 277 U.S. Asuarca, 291 Fed. 73. The Tornado (Klein v. Globe & Rutgers Ins. Co., 2 F. (2d) 137), distinguished. The dictum in The Tornado, supra, that what constitutes a peril of the sea depends upon the size of the vessel insured, does not correctly state the law. Its application to facts such as are involved in the present case would lead substantially to the conclusion that a policy of marine insurance is not, as Lord Herschell says, "an insurance against accidents which happen, but an insurance against events which must happen." See The Xantho, 12 App. Cas. 503; British & Foreign Ins. Co. v. Gaunt, 2 App. Cas. 41. To insure such a vessel against perils of the sea, does not amount to the underwriter warranting that she is fit to encounter perils of the sea. The only warranty in the policy of insurance is the warranty of the assured, not the warranty by the underwriter. As Lord Mersey said in Sasson v. Western Assurance Co. (1912), A. C. 561: “An insurance against the 'perils of the sea or other perils' is not a guarantee that a ship will float." The petitioner has failed to sustain the burden of proving that the sinking of the boat resulted from one of the few specified perils insured against in these policies. Unseaworthiness of a vessel may be one or both of two things; first, a breach of the implied warranty of seaworthiness which is contained in every marine policy unless expressly excluded (Hazard v. New England Ins. Co., 8 Pet. 557); second, a cause of loss. Considered as a breach of warranty, unseaworthiness may undoubtedly be waived by the underwriter. The waiver, however, should always be expressed in writing in the policy in the clearest language. Arnould on Marine Insurance, § 686. Considered as a cause of loss, even where there is no warranty, a loss from unseaworthiness is not a peril insured against. This was specifically decided in N. O. T. & M. R. Co. v. Union Marine Ins. Co., 286 Fed. 32. See 66 Argument for Respondents. also Grant Smith & Co. v. Seattle Construction Co., 1920, A. C. 162. In other words, even though the underwriter admits in the policy that the vessel is seaworthy, the assured is not entitled to recover where the loss is not shown to have been caused by a peril of the sea or other of the specific perils insured against. A fortiori this must also be so when the evidence indicates that the loss was caused by unseaworthiness. It is undoubtedly true that unseaworthiness, considered as a breach of the implied warranty of seaworthiness, is a special defense which must be affirmatively pleaded and proved by the underwriters. Petitioner, however, overlooks the distinction between unseaworthiness as a breach of the implied warranty of seaworthiness, and as a possible cause of loss. If the loss was caused by unseaworthiness, the petitioner cannot recover and there is no need for the defendant underwriters to set up unseaworthiness as an affirmative defense. New Orleans, T. & M. Ry. Co. v. Union Marine Ins. Co., 286 Fed. 32; Swan v. Union Insurance Co., 3 Wheat. 168; The Lakeland, 1927, A. M. C. 1361; Richelieu Navigation Co. v. Boston Ins. Co., 136 U. S. 408; Firemen's Fund Ins. Co. v. Globe Navigation Co., 236 Fed. 618; Coles v. Marine Ins. Co., Fed. Cases, No. 2988; Cary v. Boylston Fire Ins. Co., 107 Mass. 140; Van Vliet v. Greenwich Ins. Co., 14 Daly (N. Y.) 496. If any cause of loss is shown, it is the uninsured risk of negligent towage. Obviously, it was negligence to tow this small tug at the rate of nine miles an hour, behind a large steamer with such a short tow line. Peace River Mining Co. v. Mulqueen, 285 Fed. 102; The Mariner, 1927, A. M. C. 363; The Marie Palmer, 191 Fed. 79; The Inca, 148 Fed. 363; D. W. Ryan Towboat Co. v. Draper, 263 Fed. 31; The Manhattan, 186 Fed. 329. Opinion of the Court. 277 U.S. The fact that the contract of towage relieved the towing vessel from all responsibility for negligence was a fact material to the risk which should have been disclosed to the underwriters, and its concealment voided the policy. The policy specifically provided that any agreement whereby any right of recovery of the assured against any vessel or person is released, decreased, transferred or lost, voided the policy. Sun Mutual Ins. Co. v. Ocean Ins. Co., 107 U. S. 485; Tate & Sons v. Hyslop, 15 Q. B. Div. 368; Phoenix Ins. Co. v. Parson, 129 N. Y. 86; The Turret Crown, 297 Fed. 766; The Oceanica, 170 Fed. 893; Ten Eyck. v. Director General, 267 Fed. 974; McWilliams v. Davis, 285 Fed. 312; Hand & Johnson Tug Line v. Canada S. S. Lines, 281 Fed. 779; British Columbia Barge Co. v. Mylroie, 259 U. S. 1; The Pacific Maru, 8 F. (2d) 166; The Sea Lion, 12 F. (2d) 124. MR. CHIEF JUSTICE TAFT delivered the opinion of the Court. These are eleven libels filed in the District Court of the United States for the Eastern District of Louisiana by a Mexican corporation known as the Compañia de Navegación, against as many different insurance companies, English and American, on eleven separate policies, insuring the tug "Wash Gray" in favor of the libelant as owner in different sums aggregating $85,000, and covering a voyage of the tug while in tow from Tampico, Mexico, to Galveston, Texas. The tug was designed for inland waters. She was 872 feet long, with 19 feet beam, 9 feet depth of hold, and was. of 105 tons. She was insured specially for this sea voyage, to be towed as agreed with the Insuring Companies by the "Freeport Sulphur No. 1," à vessel engaged in regular trade on the Gulf of Mexico, and measuring 309 feet in length, 45 feet beam, with 221⁄2 feet depth, and of approximately 3,000 tons displacement. 66 Opinion of the Court. When application was made for insurance, the underwriters required an inspection for seaworthiness, general fitness and towing arrangements for that voyage. For that purpose two well known marine surveyors, representing the various underwriters, made a thorough, critical inspection, followed by recommendations for preparations for the voyage, including certain overhauling, particularly of her towing bitts and decking, and for the planking up of doors, ports, and other openings. They reported in writing to the underwriters that the requirements had been complied with, and certified her seaworthiness, and her fitness for the particular voyage. Because of the extra hazardous risk involved in the transit of this small inland vessel in tow at sea, the premiums were much increased by the underwriters. They varied, in the different policies, between one and one-half to two and one-eighth per cent., or from six to more than eight times the usual rate for a tow of the ordinary size and power to resist the sea. The voyage contemplated was first to Freeport, Texas, a distance of some four hundred and twenty miles, a trip taking some forty-five or fifty hours. From there, she was to go to Galveston by another towing vessel, also to be satisfactory to the underwriters. The weather from Tampico was fair and the sea calm. She followed nicely, handled well, and continued in tow through the first night and through the next day, making some nine miles per hour with no straining or difficulty. Ordinarily, under her own power, she was good for from ten to twelve miles per hour. During the second evening, came a fresh to strong northwesterly breeze. Later the weather grew squally, until, about 8 o'clock, the wind reached a velocity of twenty-five miles an hour, with occasional puffs or gusts. Because of these and a cross current and swell, the sea grew choppy, with waves running up four to five feet from trough to crest, and sufficient to break over her head. The rough weather and the choppy seas put a strain on Opinion of the Court. 277 U.S. the vessel. As required by contract, she had up all steam necessary to work her pumps. The mate was sent below and in a few minutes reported to the captain that the forward bitts had worked loose, that her seams were opening, and she was taking water rapidly. The pounding and straining continued until she made more water than her pumps could discharge. She was then about 100 miles from Freeport, Texas, and had completed three-fourths of the voyage to that point. The "Wash Gray's" captain signalled to the towing ship to stop. The water in the tug had rolled forward, thus bringing her head down. The tow lines were then cut. This brought her head up and she righted herself. The larger vessel stood by. The captain of the "Wash Gray" notified the towing captain that the tug could stand no more pulling. Shortly thereafter the captain and crew of the tug were taken aboard the ship for safety. The latter then stood by until daylight when the master sent his engineer, mate and some six men on board the tug to attempt to save her. They found no water in the boiler for steam. They attempted by a hose to pump it in, but the leaking sea water put out the fire. The vessels then proceeded slowly at one mile per hour until half past ten when the tug began to sink slowly and went down at half past eleven. The District Judge found for the owner of the "Wash Gray" on all the policies. The Insurance Companies appealed to the Fifth Circuit Court of Appeals, which without objecting to the facts as found by the District Court reversed the case with directions to dismiss the libels. Counsel for the Insurance Companies seek to sustain the judgment of the Circuit Court of Appeals on four grounds. They say, first, that the Insurance Companies were released from liability because there was not disclosed to them before the voyage a contract of towage, a term of which was material to the risk and was concealed and the policies were thus avoided. The towage contract provided as follows: |