13 La. Ann. 338 | La. | 1858
On the 10th May, 1855, Thomas Keefe, for the account of the owners of tho steamboat S. F. J. Trabue, effected an insurance with defendants in the sum of five thousand dollars, loss, if any, payable to plaintiff, upon the hull, engine, furniture and appurtenances of said steamboat, valued at $35,000, to navigate the Mississippi river, not above Alton, and on the Ohio river, not above Louisville, for one year from date of insurance. Before the expiration of the risk, the steamboat Trabue was seized for debt; and while in the custody of the Sheriff, in the port of New Orleans, was totally destroyed by fire, being one of the perils insured against, on the 19th April, 1856.
The defendants being sued on the policy, plead in defence :
1st. That while the policy sued upon was running and unexpired, other insurance was effected on said boat in the Crescent Mutual Insurance Company for $22,500, which, together with the amount insured by defendants, exceeded the sum of $25,000; whereby the policy sued upon became null and void, by the terms thereof.
2d. That in consequence of the seizure made by the Sheriff, tho command of tho boat was taken from tho master thereof, without tho consent or approbation*339 of defendants, which was a change in the command thereof, whereby the policy became null and void by its terms.
3d. That there was no commander in charge of the steamboat Trabue, and that no person was on her at the time she took fire and was destroyed: whereby defendant was released from liability.
4th. (By a supplemental answer.) That at the time of the alleged loss, the Trabue was not competently provided with master, officers and crew, and was not sufficiently provided with tackle and appurtenances, as stipulated in the policy.
“ And it is hereby further agreed, that this policy shall become void upon assignment thereof, transfer of interest, or change of command, or if any other insurance be made upon the interest hereby insured, which, together with this insurance, shall exceed §25,000, unless the consent of this company thereto bo obtained and endorsed thereon.”
It appears that the boat, having- been subsequently seized by the Sheriff, John M. Bell, a policy of insurance was effected by him, in his official capacity, with the Orescent Mutual Insurance Company, in the sum of §22,500, to cover a harbor risk, in the port of New Orleans, for one month, viz :..from 2d April, 1856, to 2d May, 1856.
Mr. Blossman, the Deputy Sheriff, states, that “ this policy was taken out upon the notification of Mr. Shannon, who was the second seizing creditor; that ho wished the Sheriff to effect insurance upon the boat for his protection ; and witness and Mr. Bell made a calculation of the claims against the Trabue, and Mr. Bell thereupon took out the policy for §22,500.”
Mr. Bell himself states that he did not effect the insurance at the request of the owner of the boat; nor even, so far as he knows, with the knowledge of the owner.
From this evidence it appears that the insurance in the Orescent office was not effected upon the same interest which was insured by defendants, namely, the interest of the owners of the boat, who were defendants in the seizure. This insurance did not, therefore, fall within the prohibitory clause of defendant’s policy above quoted.
The 3d and 4th pleas are substantially the same. They amount to a denial of seaworthiness, by reason of there not being a crew on board at the time of the fire: and are based upon the clause of the policy by which the assured agrees “ that the boat aforesaid is and shall be, during- the continuance of this policy, sufficiently found in tackle and appurtenances thereto, and competently provided with master, officers and crew.
This clause is of universal use in marine policies. Its effect upon the condition of a boat, laid up under seizure, in the port of New Orleans, was considered in the case of Bell v. The Western Marine and Fire Insurance Company, 5th Rob. 446. The court said : “ When engaged on a voyage, or lying in port receiving and discharging- cargo, it is proper that a boat should be properly officered and manned ; but when laid up, it is not shown to be necessary or usual.”
The judgment of the District Court is, therefore, reversed; and it is adjudged and decreed, that plaintiff and appellant recover of defendants and appellees five thousand dollars, with legal interest from tho 19th June, 1856, until paid, and costs in both courts.