79 Wash. 216 | Wash. | 1914
This is an action upon a charter party, for damages to a steamboat, it being alleged that the charterer breached its contract in failing to return the boat in good condition.
The appellant, being the owner of the steamship “Jeannie,” chartered it to the respondent for voyages from Puget Sound to ports in southeastern Alaska. The charter party provides that the vessel should be delivered to the respondent “unmanned and without a crew;” that the owner should carry insurance on the steamship “not to exceed $27,000,” in some insurance company satisfactory to it, for which the
“. . . for the operation, maintenance and control of said steamship, but the same is fully assumed by the party of the second part [the respondent], except that, if such steamship is not properly cared for by the party of the second part in accordance with the views and opinions of the chief engineer acting with either the master or pilot, then party of the first part may immediately cancel this charter and retake possession of said steamship. . . . It is further agreed that party of the second part will return said steamship ‘Jeannie’ to party of the first party upon the expiration of this charter, or any extension thereof, in as good condition as she is received, natural wear and tear and the act of God or the enemies of the United States of America excepted ; but that if party of the first part shall receive from insurance placed upon said steamship by party of the first part, any sum or sums arising from any cause covered by such insurance, then the sum so received by party of the first part shall be deducted from any claim of loss, damage or injury for which party of the second part would be liable under this clause. ... In the event that said steamship shall meet with any accident for which insurance is thereafter collected, then the amount of insurance so collected by party of the first part and retained by them, shall be the full and true measure of all damage or loss sustained, and no claim shall be made on parties of the second part by party of the first part for loss or damage to said ship by reason of any accident happening thereto which is covered by insurance.”
After the Jeannie was turned over to the respondent, it struck some unknown, submerged object in Frederick Sound, in Alaskan waters, threw a propeller blade, and was other
The first question to be considered is, Was the accident which caused the damage an “act of God?” The burden of proof was upon the respondent to show that the injury sustained was caused by an “act of God,” in order to excuse itself from liability under this clause of the charter. Merritt v. Earle, 29 N. Y. 115, 86 Am. Dec. 292; The Majestic, 166 U. S. 375; McKinley v. C. Jutte & Co., 230 Pa. St. 122, 79 Atl. 244, 1912 A. 452; Ewart v. Street, 2 Bailey (S. C.) 157, 23 Am. Dec. 131; McArthur v. Sears, 21 Wend. (N. Y.) 190; New Brunswick Steamboat & Canal Transp. Co. v. Tiers, 24 N. J. L. 697, 64 Am. Dec. 394; Klair v. Wilmington Steamboat Co., 4 Penn. (Del.) 51.
In Ewart v. Street, supra, it is said:
“It was rightly said on the part of the plaintiffs, that it is enough to show the damage done, in order to render the defendants liable; and the burden is on them to show, that it was occasioned by such a cause, as will exempt them from liability.”
In McArthur v. Sears, supra, the court said:
“The defendant was a common carrier; and it is not denied as a general rule, that, to protect himself from responsibility for the loss, he was bound to prove that it arose from the act of God, or the enemies of the country.”
In Merritt v. Earle, supra, the term “act of God” is thus defined:
“The law adjudges the carrier responsible, irrespective of any question of negligence or fault on his part, if the loss does not occur by the act of God or the public enemies. With these exceptions, the carrier is an insurer against all losses.
Substantially the same definition is given in Polack v. Pieche, 85 Cal. 416, 95 Am. Dec. 115. In Reaves v. Waterman, 2 Speers’ Law 197, 42 Am. Dec. 364, it is said:
“The act of God is commonly illustrated by such natural convulsions as tempests, lightning, earthquakes, the unknown shifting of shoals, and the like.”
In Fergusson v. Brent, 12 Md. 9, 71 Am. Dec. 582, it is said:
“It is true that every ‘act of God’ is an inevitable accident, because no human agency can resist it; but because it is so, it does not therefore follow, in the sense of the books, that every inevitable accident is an act of God. Damage done by lightning is an inevitable accident, and also an act of God; but the collision of two vessels in the dark is an inevitable accident, but not an act of God, such as the stroke of lightning ; nor is it so considered by the authorities.”
In 1 Cyc. 758, in a foot note, it is said that in numerous cases the courts have expressed the opinion that the words “inevitable accident” and “unavoidable accident” are exactly equivalent to the expression “act of God.” “This is not
“If the defendants are common carriers, the question must be merely what are the liabilities of common carriers? The answer is, for all losses, even inevitable accidents, except they arise from the act of God, or the public enemy.”
These cases are not in conflict with Smith v. North American Transp. & Trad. Co., 20 Wash. 580, 56 Pac. 372, 44 L. R. A. 557, and Bullock v. White Star Steamship Co., 30 Wash. 448, 70 Pac. 1106. Nor are they opposed to the rule announced in The Majestic, 166 U. S. 375, cited by the respondent, where the court said:
“The burden in this respect is on the carrier. Clark v. Barnwell, 12 How. 272; Transportation Company v. Downer, 11 Wall. 129; The Edwin I. Morrison, 153 U. S. 199; The Caledonia, 157 U. S. 124. The act of God, said Chancellor Kent (Yol. 3, p. 597), means ‘inevitable accident, without the intervention of man and public enemies’; and again (Vol. 3, p. 316), that ‘perils of the sea denote natural accidents peculiar to that element, which do not happen by the intervention of man, nor are to be prevented by human prudence. A pasus fortuitas was defined in the civil law to be, quod damno fatali contingit, cuivis diligentissimo possit contingere. It is a loss happening in spite of all human effort and sagacity.’ The words ‘perils of the sea’ may, indeed, have grown to have a broader signification than ‘the act of God,’ but that is unimportant here. Judge Shipman in the Court of Appeals quotes from 1 Parsons on Shipping 355, the definition there given of the ‘act of God,’ and the reason
Nor are they opposed to the rule announced in New Brunswick Steamboat & Canal Transp. Co. v. Tiers, 24 N. J. L. 697, 64 Am. Dec. 394, cited by the respondent, where the court said:
“By the act of God is meant a natural necessity, which could not have been occasioned by the intervention of man, but proceeds from physical causes alone, such as the violence of the winds or seas, lightning or other natural accident. If the loss happen by the wrongful act or neglect of a third person, the carrier is responsible, and is to seek redress from the wrongdoer. If divers causes concur in the loss, the act of God being one, but not the immediate or proximate cause, such act of God does not discharge the carrier. To have this effect, it must be one exclusive of human agency.”
The facts touching the cause of the accident are these: The chief engineer testified:
“I know she struck something hard, something submerged, and broke one of the blades and put everything out of line. . . . She gave a sudden stop and then started off. . . . Struck something submerged. I don’t know whether it was a log or a chunk of ice or it might have been a rock.”
The master of the ship testified that the accident happened in the middle of Frederick Sound, three miles from land, in about 125 fathoms of water, in clear weather, with the sea “smooth as glass.” He further said:
“I felt a jar but you can feel a jar when a ship loses a blade. It might be a submerged body; it probably was; I don’t know. I want to say that I don’t know. I just felt the jar.” ' '
The accident happened in the month of September, in the day time. It was stipulated that the chief -mate..would, if
This is far from showing that the act could not have happened by the intervention of man. It leaves the cause of the accident to speculation. The most that can be said is that it may have been caused by an “act of God,” or it may have been caused by the act of man. We are not required to adopt the strict rule laid down by Judge Shipman and quoted in the excerpt from The Majestic, supra, viz., that if it were possible that the injury was caused by the act of man the respondent should be held. Under the authorities, it is at least required to show, by a preponderance of the evidence, that an “act of God” was the cause of the injury. In this, it has signally failed. Nor are we willing to adopt the respondent’s view that, because it may have been an inevitable accident or casualty, it was an “act of God.”
The respondent next contends that, under the charter party, the appellant was its own insurer. The charter party is not susceptible of this construction. When taken as an entirety, the view is compelling that the respondent assumed responsibility for all injuries sustained to the vessel not caused by “the act of God or the enemies of the United States of America,” and not “covered by insurance.” The testimony is that the appellant procured the highest and best form of insurance obtainable. The charter shows that it was clearly in the minds of the parties that the boat might sustain an injury not covered by the exception clause and not covered by the insurance. The responsibility for such damages was assumed by the respondent. While it is true the appellant furnished the chief engineer, it is also true that the respondent assumed control of the vessel.
It is also argued that there can be no recovery without proof of negligence upon the part of the respondent, because
If respondent breached its contract, it is liable, and it can only excuse itself from liability by showing either that the damages were caused by an act of God or covered by the insurance, or probably — but this is not before us under the evidence — that the appellant, had it exercised reasonable care, could have procured insurance which would have covered the damage. The evidence here, however, is that such insurance could not have been obtained. We think, under the law and the evidence, the appellant is entitled to recover the damages the vessel sustained.
The case will be remanded, with directions to the trial court to ascertain the damage and enter judgment for the amount thereof.
Crow, C. J., Ellis, Main, and Chadwick, JJ., concur..