191 F. 769 | 1st Cir. | 1911
These appeals arose out of a collision on the Providence river, on a bright, moonlight, calm night, between the steamer Powhatan and a barge in tow by a tug owned by the Robinson Towing Company, named in these proceedings. The Powhatan was going out, and the tug and tow coming in. The tow consisted of two barges, one the Ira L- Allen towed on a line about 300 feet aft of the tug, and the other the Elheurah, towed on a line after the Allen. The Powhatan came in collision with the Allen, and thereupon the Elheurah caught up with the Allen, and by the collision between the two barges both were sunk.
“The Powhatan was going at slow speed under one bell, probably about six or seven miles an hour. After passing Puller’s Rock, and just before reaching buoy No. 11, she sighted the Baxter and her tow, which were well below Pomham Light. She blew one whistle, which was immediately answered by one whistle from the Baxter.
“At the exchange of signals the vessels were nearly a mile apart. The Powhatan directed her course to the right of the channel without reducing her speed until near buoy No. 9, when her engines were stopped. She was then less than a quarter of a mile from the place of collision, and at this time it must have been evident to the officers of the Powhatan that the tug and her tow were well over to the westerly side of the channel, and that for the Powhatan to continue her usual course to the right of the channel would involve risk of collision.
“The fault of the Baxter in proceeding with her tow toward Providence up the narrow and crooked channel, well over on the westerly side of the channel, is clearly established by the location of the wreck, which was somewhat eastward of the place of collision. It is clear that she took that side of the channel which lay on her port hand, instead of that side which lay on her starboard hand in direct violation of the following provision of the inland rules:
“ ‘Sec. 25. In narrow channels every steam vessel shall, when it is safe and practicable, keep to that side of the fairway or mid-channel which lies on the starboard side of such vessel.’ 30 Stat. 101 [U. S. Comp. St. 1901, p. 2883].
*771 “Off Pomham the channel is 700 or 800 feet wide and navigable close up to Pomham Rocks, yet the tow was so near the extreme western edge of the dredged channel as to put the Powhatan in peril of grounding, had she attempted to go much farther to the west.
“The question of the Powhatan’s fault is more difficult. When she stopped her engines, just before reaching buoy No. 9, it must have been evident that the tow was so far to the westerly side of the channel that it would require considerable time for tbe tug to pull her tow over to the easterly side. Gapt. R>an. of the Powhatan, says that, when he got down to buoy No. 9, he hauled to south half east, and that his vessel headed that way up to the time of the collision. He states that she ran on for about a minute; that she then reversed slowly for about a minute, and then backed full speed from two to two and a half minutes, and that then the Allen ‘impaled herself’ upon the stem of the Powhatan; that he still continued to back, possibly a minute, and released his ship of the obstruction, and then stopped. He testifies that his vessel was under stemway, moving up the river, at the moment of collision.
“Just before the collision the Baxter passed the Powhatan from 50 to 75 feet to the eastward, and Greene, master of the Baxter, testified that he then saw from the water at the Powhatan’s stern that she was ¡lacking. The evidence as to the speed of the Powhatan at the moment of the collision is very conflicting. Ryan says that his vessel had sternway and was moving up tiie river; Tliorsen, that the Powhatan passed the Baxter at a speed of about seven miles. Upon a consideration of the entire evidence, I am of the opinion that the Powhatan’s speed had been very considerably reduced at the moment of collision, and that the question of her fault depends upon whether she did not delay too long in reversing. The evidence preponderates to the effect that the engines were stopped near buoy No. 9, some 1,200 or 1,300 feet from the place of collision, and that she ran on under her headway at least <500 to 700 feet before reversing, and that then she began to back slowly. She was then not more than 500 or 600 feet from the place of collision with the Allen, and not much more than half her ship’s length from the Baxter. The Baxter was then on her port bow, and the Allen was nearly ahead and not following the tug, but still swinging, possibly diverted to port by the quick water from the easterly movement of the tug. The situation was then critical, and called for immediate reversal full speed astern.
“It was reasonable to expect that the Baxter would do much more than she did to get to her proper side of the channel, and it is quite probable that the master of the Powhatan did not anticipate such obstinate insistence on the wrong course as that of which the Baxter had been guilty; but, according to Ryan’s own statement, he continued ¡lacking at slow speed for a full minute before giving the order full speed astern.
“It was probably good judgment to stop rather than to proceed, and the only question of fault which 1 think is of consequence in relation to the Powhatan is whether she did not unreasonably delay in reversing. That it was quite possible for the Powhatan to have stopped entirely and to have acquired sternway before the collision is apparent from her contention that she did in fact do so. As I find from all the testimony that she was still under a considerable headway, it follows that she did not do what it is claimed on her behalf to have been the proper course.”
Tlie result was that the District Court held both the tug and the Powhatan in fault, and no damage accrued to either of them; but the barges which were sunk were held by independent ownership, and the decree of the District Court divided the damage to them between the two steam vessels.
The findings by the District Court were not strictly in accordance with the pleadings, but no point was made on this record on that account. Also, it is not claimed that the navigation was such as to cause any probable danger to the Powhatan by reversing, as the District Court thinks she should have done. Apparently, therefore, she was
“It is not improbable that tbis doctrine of marshaling securities or funds, which under another form had its existence in the Roman law, and was therein called subrogation or substitution, was derived into the jurisprudence of equity from that source, as it might well be, since it is a doctrine belonging to an age of enlightened policy, and refined although natural justice.”
It follows, therefore, that, applying the doctrine of subrogation, no attention should be paid to technicalities which are not of an insuperable character, but the broad equities should always be sought out. as far as possible. It is also well settled that the same general rules apply to the interpretation and application of policies of marine insurance.
The basis of the conclusion of the District Court on this libel seems to be that the owners of the tug were the insured, and not the Gen
Iti the present case the owners of the tug had an open policy “for the account of whom it may concern” on all lawful goods on board barges owned by them “against any and all risks and perils of fire and inland navigation and transportation, property of the assured or held by them in trust or custody as freighter, forwarder, bailee or common carrier,” like policies obtained by commission merchants on goods owned by them and those consigned to them. Such policies may cover not only the special property interest of the assured, but also the general property interest of the bailors, whether' shippers or consignors, for the especial relief of the carrier or commission merchant where the loss is through the fault of either, and for the special benefit of the owner of the cargo or of goods consigned where the loss is without fault of the carrier or consignee. Under such a policy, according to the common understanding, both the general owner and the special owner or bailee may be among those “concerned,” and are covered thereby.
The policy further provided: “All entries to he made in the passbook prior to any loss to the vessel or cargo.” A proper entry was made on the passbook as to the cargo of the Allen, as provided in the open policy, and a certificate issued accordingly for $16,555, “loss if any payable only to the order of the General Chemical Company.” The certificate also contained the following:
“It is agreed that upon tlie pnjmpnt of any loss or damage the insurers are to be subrogated to all the rights of the assured under their bills of lading or transportation receipts, to tbe extent of such payments. It is understood and agreed that in ease any agreement bo made by the assured with any carrier by which such carrier stipulates to have, in case of any loss for which he may be liable, the benefit of this insurance, then and in that event, the insurers shall be discharged of any liability for sneh loss hereunder.”
It was said by the learned judge of the District Court that by this certificate the General Chemical Company was not insured, but was merely the payee in case of loss. Nevertheless, the extract from the certificate which we have given describes it specifically as the assured, and provides that the underwriters should be subrogated to its rights
It is true that the two papers — that is to say, the policy and the certificate — are to be taken as one instrument for the present purposes, to the same effect as if the certificate had been indorsed on the policy. Under those circumstances, the owners of the tug might still be also insured, as the holders of the policy. The breadth of meaning to be given to the words “to whom it may concern” is clearly illustrated in Hooper v. Robinson, 98 U. S. 528, 25 L. Ed. 219, and in Hagan v. Insurance Company, 186 U. S. 423, 22 Sup. Ct. 862, 46 L. Ed. 1229. It is fully stated in Phillips on Insurance (5th Ed.) § 383 and sequence. We refer especially to sections 384 and 385, as follows :
“See. 384. The intention of party who orders the policy determines who are the ‘concerned’ under a general description; though those intended are not known by the broker who effects the policy, or by the insurers, to be so.
“Sec. 385. The rule, that an insurance ‘for whom it may concern’ will avail in behalf of the party for whom it is intended, does not mean that any specific individual must be intended. It is enough that the agent, and the insurers, intend it for any party or parties who have an insurable interest. If the insurance is ordered, then its application is governed by the intention of the party who originally gives the order; if it is not ordered, its application will be to the interest of the party intended by the one effecting it, whether himself or another. But he may intend it for whatever party shall prove to have an insurable interest in the specified subject, in which case it will be applicable to the interest of any person subsequently ascertained to have such an insurable interest, who adopts the insurance.
“A valid insurance may, therefore, be made between x^arties, both of whom are at the time .ignorant of the specific persons to whose interest it is applicable.”
The question in our minds is not whether the General Chemical Company was insured, but whether the owners of the tug were likewise insured for present purposes. The necessity of insurance was, of. course, a mixed question. The owners of the cargo especially
The rules which we have stated as to subrogation are so well settled that we need not cite authorities therefor; but it will be interesting for any one to examine in this connection 4 Joyce on Insurance (Ed. of 1897) § 35 and sequence, 1 Arnold’s Marine Insurance (8th Eng. Ed.) § 1225 and sequence, and Tyser’s Loss under Policies of Marine Insurance (1894) § 269 and sequence.
The result of it all is to affirm the decisions of the District Court with reference to the Powhatan except so far as concerns the right of the Firemen’s'bund Insurance Company, and also to affirm the decree of the District Court in favor of those interested in the barge Elheurah and her cargo, and to reverse its decree on the libel of the General Chemical Company, and enter a new decree therein in favor of the Firemen's Fund Insurance Company as stated in this opinion.
The judgments will be as follows:
In No. 920, the case of the litigation between the Powhatan and the owners of the tug, the decree of the District Court dividing the dam
In No. 921, the litigation in behalf of the General Chemical Company, representing the Firemen’s Fund Insurance Company, the decree of the District Court is reversed, with directions to enter a new decree in accordance with the opinion passed down the 29th day of November, 1911; and the appellant recovers its costs of appeal, and also its costs in the District Court.
In No. 922, the litigation between the owners of the tug and of the Powhatan on the one side, and the representatives of the barge Elheurah and its cargo on the other side, the decree of the District Court is affirmed with interest, with leave to the District Court to modify, if necessary, the decree as provided with reference to the decree in No. 921; and the appellees recover their costs of appeal.