City of Clarksville
94 F. 201
D. Ind.
1899
Check Treatment
BAKER, District Judge

(after stating the facts as above). Two grounds of liability are relied upon by the libelants; First. It is insisted that the steamboat could not limit its liability as a com*204mon carrier by reason of the prohibition in the constitution of the state of Kentucky above quoted, and that it is responsible as such common carrier. Second. It is further insisted that the steamboat is responsible on the ground that it becamе an insurer of the tobacco from the time of its delivery, and remained responsible' for its loss by fire until it was delivered to the consignee at Clarksville.

The first section of the act of congress (Rev. St. § 4282) approved March 3, 1851, does not apply to the facts of this case. This section is copied from ‍​​‌​​​​​​‌‌​‌​​​​​​​​‌‌​‌​​​​​​​‌​‌‌‌‌​​​‌​‌‌‌‌‌‍the second section of Act 26 Geo. III. c. 86, which received a judicial interpretation by the court of queen’s bench in Morewood v. Pollok, 18 Eng. Law & Eq. 341. It was there held that the act did not extend to the case of a fire occurring on a lighter in which cotton was being conveyed from the vessel to the shore. This decision is in conformity with the language of the act which limits its operation to a fire happening to or on board the vessel. Without a departure from the plain reading of the words of the act, I cannot extend it to a fire happening on board of the wharf boat lying alongside the shore. The constitution of the state of Kentucky would be inoperative in any case to which the above statutory provision extended. The act of congress was passed in pursuance of an express grant of power, and such act is valid and operative, anything in the constitution or laws of the state of Kentucky to the contrary notwithstanding. The act of congress, however, is inapplicable to the prеsent case, because the loss did not happen from a fire to or on board the vessel. It is equally evident that the provision of the constitution of the state of Kentucky relied upоn does not apply because the loss happened after the delivery of the goods .on the wharf boat, where the libelee’s responsibility as a carrier was at an end, and its only responsibility was that of a wharfinger or warehouseman. This is the express agreement contained in the bill of lading. The constitutional provision does not attempt to limit the right of a carriеr to stipulate where the delivery of the goods shall be made, nor does it prohibit the making of a contract for relief from its common-law responsibility as a carrier when it has made a delivery of the goods pursuant to the terms of its bill of lading. There is no allegation in the libel imputing the loss to the negligence or want of care of the libelee. It does not proceed on the theory of a loss arising from want of care.

If any recovery can be had, it must be upon the ground of a breach of the contract to procure insurance, or on the ground of a false representation that the tobacco- had been insured. There is no claim that the respondents were, or were to become, themselves the insurer. They were not in the insurance business, and never had been. Their business was only that of a carrier and forwarder. The bill of lading so imports. There was nothing in the circumstances or in the negotiations of the parties that gives any countenance to the idea that the steamboat or its owners meant to become the insurer themselves, or to charge the boat or its owners as insurers, nor anything in the libel or' proofs to indicate that the libelants expected either the boat or its owners to become insurers of the tobacco. The libel alleges that it was agreed in consideration of shipping- the *205tobacco on the steamboat, and of the money to be paid for its carriage, that the steamboat would cause the tobacco to be insured against loss by lire in the consignee’s open fire policy from the time that it was received at the landing at Bowling Green until the same was delivered to the consignee at Clarksville. It is then avеrred that, in pursuance of said agreement, the libelants delivered ihe tobacco to lie steamboat for carriage. The breach of the contract is averred thus: That the undеrtaking by the steamboat to insure the tobacco in ihe consignee’s open fire policy was without any authority from the consignee, that the consignee had no open fire policy, and that the tobacco was never insured in any open policy of the consignee or otherwise, and that the libelee wholly failed to perform ‍​​‌​​​​​​‌‌​‌​​​​​​​​‌‌​‌​​​​​​​‌​‌‌‌‌​​​‌​‌‌‌‌‌‍its undertaking to have said tobаcco insured. It is to be observed that the contract of affreightment had been fully performed by the carriage and delivery of the tobacco without damage on the wharf boat at Evansville, ¡mí., as stipulated in the bill of lading. Ko action could he maintained on the bill of lading for failure to deliver. The oidy thing left unperformed was in failing to insure in the consignee’s open fire policy. The failure of libelants to allege or prove that the amount for which the tobacco was to be insured was stated or agreed upon is a circumstance tending to support the respondents’ contention that it was libelants’ duty to forward the bill of lading to the consignee and have him effect the insurance. I do not care, however, to dispose of the case on this ground.

The facts of this case clearly distinguish it from the case of Rosenthal v. The Louisiana, 37 Fed. 264. That was a. libel for a failure to deliver pursuant to- the contract of affreightment, and the verbal agreement to insure the goods before they were placed on board was incidental to the main contract for the breach of which ihe suit was brought. The agreement set out in the present libel is simply a contract or undertaking- to procure insurance.

A contract of insurance effected on goods transported by water, whatever doubts may have been at ‍​​‌​​​​​​‌‌​‌​​​​​​​​‌‌​‌​​​​​​​‌​‌‌‌‌​​​‌​‌‌‌‌‌‍one time entertained, is now firmly settled to be a maritime contract. Insurance Co. v. Dunham, 11 Wall. 1. But a contract to procure insurance, such as this contract is alleged to bе, is not a maritime contract, nor is it a contract of insurance. It is on the other side of the line dividing contracts which are maritime from those which are not maritime. A suit to recover damages for the breach of a contract to procure insurance is purely a common-law action, and is not within the jurisdiction of tire admiralty. Marquardt v. French, 53 Fed. 603. Much a claim does not diffеr in principle, so far as concerns the jurisdiction of a court of admiralty, from a suit by a shipping broker to recover compensation for services in procuring a charter рarty (The Thames, 10 Fed. 848); or by an agent employed to solicit ‍​​‌​​​​​​‌‌​‌​​​​​​​​‌‌​‌​​​​​​​‌​‌‌‌‌​​​‌​‌‌‌‌‌‍freight (The Chrystal Stream, 25 Fed. 575); or for compressing cotton preparatory to shipment (The Paola R., 32 Fed. 174); or for buying a ship, and traveling on hеr to look after the owner’s interest (Doolittle v. Knobeloch, 39 Fed. 40); or from a contract with the owners to supply their ships for the period ‍​​‌​​​​​​‌‌​‌​​​​​​​​‌‌​‌​​​​​​​‌​‌‌‌‌​​​‌​‌‌‌‌‌‍of one year with provisions (Diefenthal v. Hamburg-Amerikаnische *206Packetfahrt Actien-Gesellschaft, 46 Fed. 397); or from a contract for building a ship. In The Havana, 54 Fed. 201, 203, it is held that money loaned to a shipowner to enable him to pay necessary bills for advertising in newspapers the excursions of the steamer, in order to keep up her business, was not within the-admiralty jurisdiction, because such advertising was.not a service rendered directly to or upon the ship, but belonged to that preliminary class of services rendered wholly on land, and not deemed maritime, and hence not giving rise to a maritime lien.

In my opinion, the contract by the steamboat to procure insurance for the libelants in the consignee’s open fire policy does not create a maritime lien, and hence is not within the jurisdiction of a court of admiralty. Nor can a court of admiralty entertain jurisdiction of a libel to reform а policy of marine insurance, nor to enforce the execution of a policy of marine insurance agreeably to the terms of an oral contract. Such reformation or enforcement can only be obtained in a court of equity, upon a bill filed for such purpose. A suit brought upon a policy of marine insurance, where loss occurs outside of thе expressed limits of the policy, and where the libel is based upon alleged false and fraudulent representations leading up to the making of the policy, is not within the jurisdiction of a cоurt of admiralty. Such a suit is one based upon false and fraudulent representations, by which the libelant was induced to accept the policy supposing he was insured when he was not. Williams v. Insurаnce Co., 56 Fed. 159. Under the facts set out in the libel, and supported by the proof, the agreement of the steamboat must be regarded as a contract to procure insurance, or аs a false and fraudulent representation or warranty that it had procured insurance; and, in either aspect, it does not disclose a state of facts creating a maritime lien еnforceable in rem, within the jurisdiction of a court of admiralty. Whether a libel in personam against the owners would lie it is unnecessary to determine.

The report of the master will be set aside, and the libel dismissed. So ordered.