172 F. 364 | 2d Cir. | 1909
(after stating the facts as above). The question of primary importance in this case is whether the action was commenced within the 12-months limitation period of the policy. If the limitation is a bar, there is no necessity for considering the other questions presented. The disaster which caused the damage to the grain occurred in 1903. If this were the “disaster” of the limitation clause, this action — begun in 1907 — was commenced too late. If, on the other hand, the decree which held the libelant liable was, with respect tq it, the “disaster,” the action was commenced in time. In other words, the question is whether the policy can be treated as one of liability insurance.
As already shown, the libelant was insured “for account of whom it may concern,” and the policy covered the grain while in the custody of the libelant as a common carrier or bailee. We think that upon the occurrence of the damage by the sinking of the vessel the libelant had immediately a cause of action upon the policy. As bailee and carrier it had a special property in the wheat. Moreover, its right to recover upon the policy was not merely for its own benefit, but for the benefit of the other interested parties. It is true that after payment to the general owner recovery upon the policy would have afforded reimbursement as in the case of liability insurance. But that did not make it a liability insurance policy. As already stated, the libelant had the right to recover independently of any antecedent recovery against it and to hold the amount recovered either for its own benefit by way of reimbursement or for the benefit of other parties in interest. It follows, therefore, that as the libelant could have brought suit immediately after the accident, the limitation clause operated as a bar ,to this action, which was commenced several years afterwards.
The next question is -whether the respondents waived the defense of the limitation clause. A waiver is the intentional relinquishment' of a known right. We see nothing in the record showing that the respondent or its agent intended to waive this defense. The testimony concerning a promise to bear a part of the expenses of the litigation is entirely insufficient to establish such a waiver. The fact that the respondent insisted upon other defenses did not amount to a waiver of this defense. Moreover, we find nothing operating against the respondent by way of estoppel.
The decree of the District Court is affirmed, with costs.
