*1 by com- relate to the matter in- findings sustained or touch under of the Board are vestigation may That is petent question. or in is another matter. The Board evidence go beyond case and principal pry to may into be determined in the limitation this generally. litigated proceeding. the affairs of business concern this a not be a Company application contends When is filed with The an subpoena District Court for requiring suit to an order obedi enforce obedience subpoena inquire by representation may only ence issued Board in the a proceeding is an inde ascertain that be proceedings pending pendent pending before it a apart controversy, jurisdiction fore the Board of which separate case; pro principal sought from that such a and that the to or evidence relates filing by touches If investigation. a the matter ceeding must be instituted under exist, complaint duty be parties should these facts are found to it is the designated and not of plaintiff and the court to defendant order obedience to the sub poena. petitioner respondent; process should be issues should issued that the only may The respondent that a defenses ordinary be or in an at law framed as action in such proceeding assert that the a equity. charges It the court proceeding sought in which evidence is wrong considering proceeding .this jurisdic- is not of which the Board has principal It ancillary to case. cites tion that the does not evidence relate support position Interstate Commerce or touch the matter under consideration. It Brimson, 447, 14 Commission v. 154 U.S. may not in proceeding such a assert its S.Ct. L.Ed. All that was de 1047. fenses in principal case. cided in Brimson case was The order of District af- Court is order and of the court in sub a firmed. poena case was a final order from which an appeal could wheth be taken. The ancillary proceeding er such a or inde pendent not considered or decided. provides proceedings act The that in be- pre- fore the Board the rules of evidence vailing be adopt equity of law courts shall not It controlling. authorizes the Board to CO., Inc., SABINE INS. CONTINENTAL regulations necessary rules and CO., Inc. TOWING carry provisions out the of the act. The No. only review Board’s orders is Ap- petition to direct Circuit Court Appeals, Fifth Circuit Court only peals. power The conferred 7, 1941. Feb. directing District is to Court issue an order subpoena by obedience to a Board in a Rehearing March Denied

proceeding before consideration it. Certainly complete proceeding such a is not only comes in itself. into as an proceeding pending aid to a before the that, purpose. from Board. Aside has no Company’s contention The suit subpoena to a obedience enforce complaint filing of begun is- process not borne suance of specifically provides up„- act. act obey .subpoena Board on refusal application proper Dis- file an thereupon the court shall trict Court have person an jurisdiction to issue to such appear requiring him to before the order touching the produce evidence Board and question. investigation or in matter under power limitation compel production of the Board documentary oral it must evidence is that

695

dissenting. McCORD, Judge, Circuit Galveston, Tex., Hughes, H. C. Boal, City,

Arthur York for M. of New appellant. Grace, Grace, A. Edwin M. H. Grace, Orleans, La., Daniel H. all of New opposed. SIBLEY, HUTCHESON, Before McCORD, Judges. Circuit HUTCHESON, Judge. on The suit was two insurance recover, up policy limits, $40,000 two, expenses on the losses and incurred connection with the loss insured tug Coney, addition, steam and in prosecuting costs of defend- brought account thereof. suits recovery was, whole defense to the and deci that as settled Towing proceeding, Sabine sion liability,1 Company brought limit tug was with fault the loss of the of the assured2 in, but was excluded embraced policies. The from, coverage of the fees, recovery attorneys’ defense to costs, connec disbursements in and other prosecution and defense tion with the Coney brought on account suits provision pol limiting was that respect icy, “liability hereunder accident, de limited to the amount insured,” included the costs clared suits; defending prosecuting fees, etc., attorneys’ con costs, incurred in Towing expenses damages Company Brennan, Sabine and/or and/or F.2d 490. the assured shall assured become liable hereby exceeding company pay and shall This undertakes * * * good policy. to the assured this make nection therewith, opinion which,, reviewing fiot be recovered court in an could $40,000 up as additional limited. summing and question the evidence privity, said: “We court plaintiff, judge agreed district plain, fact, think it the record leaves provision words of the *3 question, no room for be said that whatever “without privity the altogether, favor of exoneration ap- the having assured” must be taken as prove negligence, because failure to plication only deliberate, willful, and to liability. this is not a case for limitation intentional negligence gross acts or so to Whatever was tug done with the or about as law to amount willfulness and to it was the through act of the its owner too, intention. agreed He that limi- the officers, managing and, neg- was there tation of recovery was under ligence, the owner privy was to it. All with reference to itself had the loss and of those who appellant testified for make application prosecuting no to costs positively this they clear. While testified defending He growing suits out of it. Guy that port was engineer and gave $40,000, therefore judgment for since charge repairs, they testified too that plaintiff pay compelled had been that repairs he sulting no made serious con- without more, much $32,311.98 and and in ad- officers, everything and that prosecution dition as costs of and defense. actually equipping that this done him in was The judgment complaining insurer is of the here super- was vessel done under their erroneous, entirely as and approval. and with vision these gence, Under alternative, allowing as erroneous circumstances, negli- if there was récovery $40,000. in excess of it, the officers privy to and were It is by appellee conceded that on the present appellant, presence in the of its liability, trial of proceeding to limit managing officers, privy was it too.” judge the district (1) found: that the sink- Finally, it is conceded that if as contended Coney ing negligence was due to by appellant, privity “fault repairs making neg- in ligence that and that policy” as in the are the substantial unseaworthy; rendered the vessel equivalents of “privity or knowl- words (2) repairs that all of the were made edge” used in as of lia- limitation through plaintiff’s and executive officers act,3 bility is, 'do, neg- that mean as those port superintendent engineer, and its and ligence personally for which the owner is superintended of whom personally all the blameworthy, judgment below was repairs vessel; changes and made on the appellee wrong. But below and contended (3) that having none of the officers exclu- contends here that those as used charge superintending sive of and the re- policy, wholly in the have different mean- expert pairs Coney, knowl- had application ing; that edge petitioner stability and that simple negligence fault, though the employ stability did or consult ex- negligence was the pert repairs making or naval architect said assured, is, though that the owner was adding Coney and the extra personally to caus- blame for the condition weight instability which increased her and loss; application ing unseaworthy; (4) made her that Sabine willful, deliberate and intentional Towing Company was acts, gross in law failing Coney seaworthy to have willful, inten- deliberate voyage before it on its condition set out upon They prevailed acts. below tional negligence directly proxi- this and mately .that theory finding and there obtained sinking was the cause of the negligence of the assured found crew; Coney (S) and the death all the proceedings limitation of every each of the above men- right it was denied negligences' tioned existed with the liability, its to limit not deliberate knowledge petitioner and its character; officers; (6) gross nor was it and that he con- intended executive law, plaintiff pay as a matter of cluded liable to had become found, petitioner Coney facts entitled to and for loss of did life on the liability. It is conceded too that within limit on its findings and the these thereon based the of the two of in- approved affirmed in this on which it surance sued.

3 46 U.S.C.A. 183. § willfulness, plain- gross as to amount finding; further There was a heavy to too one, it is not heavy if indeed judgments account of having paid, tiff Coney, more than be borne. for loss of life on policy, $40,000 limited so. Appellee realizes that this is having sum; and that should recover (1) offer to meet'its burden seeks costs incurred litigation conducted the testimony the understand ing oral as to con- written necessary with the therefor among underwriters policy, provided in the sent defendant as pol as used and effect of the words plaintiff in addi- was entitled to recover cases, icy, (2) on three Federal reliance tion, $32,311.98, by plaintiff costs paid Eagle George Star A. Moore & Co. v. Ap- defending suits. prosecuting Co., D.C., 9 F.2d 5 F.2d affirmed indeed, undisputed, con- pellant on these *4 296; Merchants’ Co. v. Hanover Fire Ins. facts, insists that the ceded 946; Co., Cir., Transportation 9 15 F.2d wrong, appellee right. that was Cir., Co., 4 20 F. Ins. Sorenson Boston v. English de (3) claim that 2d 640 and is the settled rule that meaning it con give support cisions legal equivalent in literature is the testimony oral Its reliance on tends for. negligence4 privity in and that the same do, the use will for in the case of of, .having partaking literature means insurance, contracts, of policies, or other part cognizance or interest in or these, plain set having a and words like action, thing,5 matter or while under legal popular and tled in both American,7 provid English6 and statutes testimony is inadmissible usage, oral from, of, exemptions ing or limitations vary meaning.9 But contradict carriage connection with considered ad proffered evidence be sea, privity negli means some fault or missible, help appellee, it would not gence of which the owner a vessel trade it does not show a uniform business or personally cognizant per which he usage words different from sonally participates.8 meaning. contrary ordinary On the burden, Appellee’s therefore, agreed English to show that are ori-r n they simply gin, testimony appellant’s policy used in the mean not and the wit men, distinguished nesses, owner as English is that all statutes, agents they English but from that of its servants taken from the clubs, English on mean willfulness or his and have in the 4 8 Bouvier, page 403; Asiatic Petroleum Co. Ltd. Leon- Baldwin’s Words v. Aspinall’s Phrases, Edition, 16, Carrying ards Ltd. Re- Permanent Vol. Co. page ports Cases, 12, N.S.; 283. of Maritime Vol. legal Tyne Steamship equiva- Fault literature is the Thomas & Weer v. Assn. Asp. N.S.; negligence, Hewes, 14, lent of Garland Vol. Lord v. Goodall v. 914; Louisville, Steamship page 884, 549, Co., Fed.Cas., & 64 A. E. 15 101 Me. No. Ind.App. 8,506. Berry, 2 St. L. R. v. R. Co. Edition, 714; expression 427, Phrases, with- 28 N.E. Words Permanent fault, Georgia Code, page pages 824, 33, l. used 819 and Vo 825; injuries by referring 109; Republic, Cir., 2 to actions an neg- Craig employee, Co., means the same as v. Continental Ins. 141 U.S. negli- 886; ligence 638, 97, and the words fault 12 35 L.Ed. S.Ct. synonymous. 339; gence Sophia, Cir., in this connection are Princess 9 F.2d 61 Savannah, Austin, Eggers Co., Cir., F. & W. R. R. Co. v. 5 112 v. Southern S. S. 347; Carver, Carriage by 614, Sea, 770. 104 Ga. 30 S.E. F.2d Cf. Bouvier, page page 5 Baldwin’s 39. 6 George 1734, Eng. II, Statute Royal 9 26, George Exchange 167, III, Blackett v. The As- Stat. Statute Adm. 1813; Company, 53, George 244; 1786; III, 2 C. surance & J. 149 Statute English page 19, Victoria; Reports, Reprint, Full 502 Mer- at 18 Statutes Kellogg, Shipping Act, 108; 383, 1894, 57 and 58 Barnard v. chant 10 Wall. 987; 60; Chapter Victoria, United States Tex Oil Marine Insurance 19 L.Ed. Chapter Corp. Kynerd, Cir., VII, 1900, 5 Act, F. Edward 296 Shipping Carriage Sea, 8th States Board v. Gal- on Goods United Carver Dry pages Co., 24, 26, Edition, Dock 5 13 veston F.2d Sections 34 Century 607; Grace v. American to 40. 278, 285, Statutes, Co., 109 U.S. S.Ct. Revised Section U.S.C.A. L.Ed. 932. § amended Title 46 the the of the words “without statutory words ing ascribed to the purpose appel decisions, or fault the assured” was English while none effect, containing witnesses, Americans, man and that lee’s a set be con- dispute They say limiting that in these ner this. do terms should repre them. containing losses, have strued as are tling the clubs they effect giving of in For no such a construction sented have considered the limitation, though whatever to would tent losses settled the is not policy. But' this of own write out of the there was ers where all, referred to bad for while we have been was no Or there willfulness Castle, except supra, con- they say words cases the Morro faith. But do not that the usage,, pol- struing these words when used settled settled icy, are, say they represent there in the group each as we have seen about, supra, form of constru- *5 clubs, they it a in owner knowledge”, personal none of to clause or relieve the policy, recognized liability, a and of it that he has not of where ordinary personally privy words their natural and to the negligent the in been or pos meaning negligence. agents, Their negligence embraced of servants or his though ition was that words did em or fault the the where which causes him, short to negligence, brace made it a is injury the clubs had attributable the practice apply personally, only to not to under the them not but superior. respondeat where no there was faith or fraud. of As used bad doctrine statutes, a only they evidence not does show Such not are not concerned usage willful, or sufficient ac- universal trade custom to and intentional with deliberate plain meaning gross the of to overcome or so as tion with that, policy, negatives they the the with existence to are it concerned simple usage pro- of ‘such trade or liability custom. fault and effect for in- vide that owners shall not be liable Appellee’s the reliance on Federal simple if negligence, juries caused by do, cases it cites will not for those were personally privy at fault or are not protection indemnity policies suits on plain We think it fault. coverage containing providing general when used same effect the pol such as in these no clause that found do not in suit. That the words the liability to loss limiting icies the insurer’s contends,' appellee obvious is mean what we privity without fault or occurring es the think, expressly insured because unless the assured. Cf. The Morro Castle of in- it doubtful if one against, is could (New v. York & Cuba Mail S. S. Co. consequences by against sure the caused D.C., F.Supp. Co.), Continental deliberate, intentional fraudu- own or his that, holdings Their even under such acts, not insurer would be liable an lent for losses from open policies, recovery could be had acts, is such not willful, the loss was the result of where suppose that the clause reasonable negli or intentional acts or of deliberate gence liability protect insurer from a an this, to amount re gross as the could not arise. in law which wrongdo of dolus malus or sult short Leonards, holdings of Petroleum Ltd. emphasize, do ín Asiatic ing, as but the. courts,10 an discussion from supra, the correctness is excellent English there the English standpoint law mean- that the insertion position, the appellant’s by 10 Trinder, act assured. “The loss Anderson & Co. v. Thames right Mercy Asp. peril, of the assured is ab- Co. Vol. sea Reliance Ins. & guilty agreed judges unless he been such In case all the solute N.S. ship that, covering his suit would be willful default that while advantage brought own perils to take his sea covers using wrong, by negligent navigation wrong, or word dolus about captain crew, does not embrace if sense which is immedi- true negligence.” by perils sea, ately it does mere caused brought about willful cover one lost, by often privity.” paraphrasing Wil- much to ing of the words “fault liams, the with negatives another. sustaining L. who was Actual fault J. liability, solely appeal, agree “I arises stated: respondeat superior. omission rule of privity faults In sense fault cover Buckley, commission,” fault, conveys while it it but as well as the idea very Hamilton, necessarily does not L. set mean L. J. J. of those clearly what the owner or lit true laid train Nor, case under Section it mean again, terms 502, That was a torch himself. that does is. Act, Shipping Merchants the owner must have been the sole by fire lost fire claim that the vessel was or next It is chief of the fire. cause privity ‘except without the fault or occurring ‘without his fault’ not fire actual “If shipowner, Buckley saying: when caused his actual action.’ happens goods loss of fire is, “The said Could it be is free from the owner’s fault or he nothing do fire that the owners had unseaworthy”, even his it, servants, only but their or that for say, fault “The goes on to words 'actual servants, they, this fire not but something my privity’, judgment, infer any persons, if enough blame? something personal to the blame- owner— happening that the of the fire from con- worthy distinguished in him as fault, servants’ not be the must also fault privity, such structive or owner’s fault. The show this.” But agents. his servants Carriage by Sea, Carver after refer confined fault’ the words ‘actual ring to con Cases to what by way of positive fault. affirmative acts privity, stitutes actual states: of omis- guilty an act If the owner be sion “There are several valuable cases in something ought do which he correspond U. S. Federal courts ‘ac- he is no less an have done *6 knowledge privity words without the or of the been one if act had tual fault’ than Statutes, owner, of the in U. Revised S. stat- of the To avail himself commission. 11 right The the Section 4283. fact is that him- utory he show that he defense must only has to limitation is lost when there blameworthy having either is for self not personal giving been the been fault rise to loss.” something to or done or omitted do to necessary It is not privy something. to Republic, 112, In The of he has knowledge. If means show think, succinctly is most the matter we used ought he knowledge which to very case and well stated. There them, his not himself of and does avail one, deciding against the like this court fault, be a to do omission so liability limitation of said: “The fault, cannot claim and he it is an actual shipowner we are is to decide whether a the protection section.” the of the his is entitled under liability statute to limit says mat- in his turn of the when loss from a Hamilton the arises ship, cargo was he said that the fective condition of his of which it be “Can ter: privity ignorant negligent his was because of own actual burnt without the I think the Though whole examination the vessel. The statute of the owners? of shipowner proving, principally English as of was taken from the lies the onus of which can defense, a fire he of & Geo. III. stat- statutes These happened utes, ‘privity ac- of the words or knowl- without his instead it predicate that edge’, ‘privity ‘without his actual fault use and knowl- fault, and that tual express edge,’ privity,’ to 502 of the Merchant or ‘fault or the section privity’ in or respect exception. English 1894, differs later statutes in this In the Act Shipping shipping with ex- in connection acts of 1854 and (the merchants’ from phraseology 1862) lading The varied so that a bill of the cepted perils —see 420; exemption Asp.Mar. was limited to losses Law Cas. the ring occur- (7 Glendarroch 226) privity P. need ‘actual fault (1894) without the or L.T.Rep. —I proved shipowner. are There is it, facts the no reason for the decide not suppose purpose, phraseology the diverse the let the for quite sufficient employed Legisla- the acts was the may. Where these as lie onus exemption, employ- adjective expressing different rules of selected ture English decisions of gained, be there were the is to little ment, I think § 11 46 U.S.C.A. shipowner corporation, “Where the courts which terms indicated the privity knowledge precludes the synonymous. English or courts statutory always right that of the intending to the must be the acts as construed Craig managing exempt shipowner when himself officers. the he [Continental] blame, Co., supra. present In the case any way has Insurance been only knowledge corpora- deny liability his him limitation of to tion in the when consisted personal is attributable blame who, by president, proper his omission of Warkworth, him. The 9 Prob.Div. vessel, failed care in his examination of the Spirit Ocean, 34 Law J. discover her defective condition.” statute, Undoubtedly, by

Adam. our English statutes, the common-law insuring provisions When the shipowner restricted liability of the examined, pro policy12 with their personal neglect cases where his be insuring losses the insured vision inducing been an cause of the loss. comes liable congress relieve the intention references, repeated part, their on its shipowners consequences from improper navigation against to insurance < imputable culpability by reason serv or default servants, agents acts their or of Assured, quite agents ants or persons, third re but not to curtail plain the words used we think negli sponsibility for their willful own substantially same policy have A gent is not acts. [Authorities.] as those privi statutes, knowledge occasioned without American limitation shipowner, sinking ty from when arises on account of losses Coney within personal inform himself of were not neglect tug his vessel, be insurance, condition of his the defective ap rendered for vessel immediate reversed and here his supervision. pellant. tion of until final or of cargo caused arising in, ties, hereinafter of this shall, vessel sonal such currences ty to the Assured inafter tors, sure against company (d) (c) (b) 12 By (a) receipt board, or port shall subject risks, loss For loss Sabine For For life * * * injury administrators shipowners named herein. who any in relation to the any their losses policy the named vessel called hereby and/or reason any pay, herein set or who delivery events, Assured, other may discharge. to the terms Towing Company, set Policy shipment salvage, other of life or on account of life or fault or any person being undertakes or the Assured’s be in the expenses as hereinafter described steamship forth. negligent act, may happenings exceeding ex resulting of Insurance person. become liable forth. and/or assured quay be improper personal handling ** and conditions quay from the time of act to make or wharf at from liabili assigns, life and/or of Inc. here aforesaid, or. * * near may * Assured does in naviga- or carried getting injury liabili injury execu of wharf This good per- oc be ^[*] . boat, navigation” servants delivery ally protect against or to the owners ship of fixed charge son of the be caused to navigation or to aforesaid damage such actually towing any such tion of may things which, by (0 (k) (i) (h) M (f) (e) any through For other or For steamship things without collision ^[*] For steamship * * * whatsoever piers, of her ^[*] * shipment, carriage, boat which any caused ^[*] or loss ^[*] * * reason of the loss or ^[*] of whatsoever, the intention agents. goods, goods, other causes than improper any jetties, or ^[*] may or or any claims cargo as aforesaid goods indemnify reason steamship as damage not, be merchandise or of * * damage by or other ** such such neglect caused to or or contact. or default of their navigation other any or and for arising merchandise aris- whether improper of persons *7 * merchandise, * steamship which steamship such discharge, the Assured movable or of “improper all loss or any aforesaid, to mutu- improper of on board those collision therein, by naviga- respect of other other boat, may rea- any tug or or conclusion, privity” In view of this it is unneces- the words “without sary generally accepted meaning de- have a iis to and we do determine that, termine an owner the alternative insurance “If the correctness of business and ** deliberately attack respect its is crooked *— $40,000. turpitude rendition under- moral and I. for a sum in excess a P. —then owner, but writer should not reimburse the Reversed and rendered. intent or if an owner innocent of wrongdoing, and I. underwriter the P.' McCORD, Judge (dissenting). technicality should hide behind I majority opinion. do not concur in the policy.” either the law or his privity” words “fault or as used in Sullivan, Arthur had been an av- who J. policy of insurance should not lim- erage adjuster be since testified he placed interpretation ited to the simi- policies was familiar contain- with P. & I. lar language clauses; the American and ing privity” “fault or limitation of statutes. privity” words “without have a generally accepted, “peculiar character- I agree do not “fault or business; meaning” istic and in the insurance privity” “plain meaning have a popular and settled that, “The that when a loss both legal usage.” There through deliberate has been sustained seem to construing be no decisions the same assured, act the under- and willful language or similar of marine * * liability. writers shall be relieved testimony I and think the oral particu- given I think the words must be qualified witnesses, such as was offered meaning, lar if are taken because case, was admissible to show that the ordinary dictionary their sense will privity” words and a recognized “fault or entirely destroy policy, be- the effect of meaning among well-understood under cause the functions of a P. I. customers, writers and their and that this may protect the losses that owner from characteristic is different from the through somebody’snegligence in con- arise ordinary dictionary definition. Policies of steamships. operation nection with the insurance, contracts, like other to be policy. That is There essential give construed intention of claim, I. a fault in the P. and is also parties examining, the time, any and “In for the first every claim in which and we exclude question under a insur (cid:127) effect, we, in com- there pletely be a fault ance, necessary it is to ascertain whether policy, destroy purpose of the practical the contract has con received given to these and some sense struction, by merchants and underwriters.” policy, cannot be words of Sherwood, General Mutual Ins. Co. v. entirely way will in a construed 452; 351, 352, 362, How. 14 L.Ed. Western Q. construction policy. And the stroy Cir., Co., Petroleum v. Tidal Co. Gasoline you what consider you given us is 82; Pappas, Daniel v. 16 F. meaning, the insurance generally, .in Svartford, D.C., 2d F.2d *8 Yes.” to be? A. business Kline, Mfg. New & Co. v. Roads Oilmill 5 ance, Duer on Marine Insur Testimony ap- witnesses for other 1, p. Vol. pellee to the is same effect. This evidence shows that in insurance it business W. LaBoyteaux, president Harvel generally understood that for the under- Higgins, & insurance brokers of Johnson escape liability writer to because of the York, New background with a of over fif- privity” provision “fault or ty years business, in the insurance testified willful, of the owner must measure to that he was familiar with “fault privity” liberate, wrong. or intentional policies, clauses in P. & I. and that “P. and I. generally interpreted insurers have majority opinion points to policy clause in the or club apply- rules as willful, hold that fraud or which deliber- ing only if the owner has knowingly and ate, or intentional relieves the willfully permitted tolerated or conditions liability policies underwriter of dangerous practically so toas amount to privity” not the “fault or which do contain turpitude.” moral argued clause. ing “contain- Knowles, vice-president Ellis limiting terms should not be and head these con- department containing D. Mallory insurance of C. strued as For such them. Co., Inc., giving had who been in construction the insur- effect thirty-one limitation, years, ance business for would in testified whatever write policy.” it out of re- It must be McCRATE al. v. MORGAN PACKING CO. et membered that when a claim is made under No. 8407. an ‘‘all risk” policy does not con- Appeals, Sixth Circuit. Court tain privity” provision “fault escape liability underwriter who seeks to 6, 1941. Feb. by showing “willful, deliberate, fraud or wrong” intentional on the prove conduct, assured must wrongful proof event of suit the burden of carry which the heavy insurer must is a one. When the underwriter inserted the privity” “without fault or policy now us before it did re- lieve from neg- itself because of ligence shipowner, on the but apparently place attempt in an bur- den show insured to that the loss had been occasioned “without privity”; is, willful, deliber- ate, wrongdoing part. on his or intentional privity” “Fault in P. & I. inserted us, policies, such as the one before should

be construed to mean that henceforth proof up- burden of as to cause loss is and not the insured underwriter. purpose nothing That is its more. Cf. (New The Morro Cases York Castle & Cuba Mail S. S. Co. v. Continental D.C.N.Y., F.Supp. Id., Cir., Co.), F.2d decided Jan. in this No contention is made case that guilty appellee or willful was wanton misconduct. So far as the record discloses forthright was honest and the insured At most about business. simple guilty judg- and bad ment. For this dereliction court has decreed that it must heretofore large who sums for the loss of seamen majority tug. Now it told simple opinion since may negligence and bad the amount of carried recover

the vessel. is to The essential from loss that arise protect the owner negligence in connection through *9 business. The construction operation of its placed the contested clause opinion too and virtu- majority narrow destroys effectiveness of the ally only places the bur- It not of insurance. pre- proof on the insured but also den simple negli- recovery even where cludes shipowner gence on the shown. holding the District I think the Court one. the correct respectfully

I dissent. or know statement of the a different notes abundance statutes, limitation, Eng- both them when used in put giving That are all in for lish and American. construction in in opportunity re when the clubs an ject to settle or uniform to the effect that liability, limiting basis the insured’s owner’s the loss statutes testimony statute, priv- good or bad faith. All of their “actual fault statute, provisions “privity ity”, rules directed the American