204 F. 255 | 2d Cir. | 1913
The libelant, which operates the steamer Santurce for its own account and risk, except of total loss, took out insurance with the respondent, covering the interest of the owner and of itself as charterer of the steamer, for one year from June 2, 1904, to cover risks in the policy mentioned. December 11, 1904, the steamer sailed from New York to ports in Porto Rico. She was then entirely seaworthy. Her propeller was new and she had a spare one on board. On the voyage the increased speed of the engines indicated that something had happened to the propellér. Thereupon the pressure on the intermediate cylinder was reduced, and the steamer proceeded well. At the port of Guanica the vessel was tipped so that it was ascertained that two consecutive blades, each five feet in length, had been broken about half off. On the return voyage the propeller worked well for 2% days, when the engines speeded up again, and, as was afterwards discovered, the two whole blades and the remainder of the broken blades were stripped off. The vessel had to be helped into Nassau by the steamer Rosewood and her spare propeller there fitted in place. May 29, 1905, the libelant paid a decree rendered against it in the District Court for salvage awarded to the owners of the Rosewood in the sum of $10,000. In September, 1905,'a general average adjustment was made of the salvage and expenses, the proportion of which due by the respondent was $960.49. May 18, 1910, the libel w.as filed in this case to recover this sum.
The respondent relies on two express covenants in the body of the policy, namely:
“It is agreed that all claims under this policy shall be void unless prosecuted within two years from the date of the happening of the loss.”
“It is warranted by the insured seaworthy at her departure on the pres-*257 flit voyage, and at ilie commencement of each passage daring the continuance of this policy.”
“The tonus and conditions of this form are to be regarded as substituted for those of the policy to which it is attached; the latter being hereby waived.”
Judge Hand correctly held that the rider displaced all the terms of the policy, and not merely those which were inconsistent with its own terms. There was nothing left of the original form except the opening clause;
“JOtua insurance Company, Hartford, Connecticut, by this policy of insurance do make insurance and cause the United States & I’orto Rico Navigation Company, as owners, and Porto Rico Steamship Company, as charterers”
—and the subscription clause, duly executed by the officers of the com]) any:
“In witness whereof, the said JGtna Insurance Company lias caused this policy to be signed by its president, and attested by its secretary, at its office ' in the city of Hartford, and state of Connecticut, and this policy is made and accepted upon the above expressed conditions, but shall not be valid unless countersigned by the duly authorized agent of the companv at Boston. Hass. Wm, K. Clark, President.
“Henry K. King, Secretary.”
The same view was taken of a rider in Kuh v. British American Insurance Co., 59 Misc. Rep. 589, 112 N. Y. Supp. 410; Id., 130 App. Div. 38, 114 N. Y. Supp. 268; Id., 195 N. Y. 571, 88 N. E. 1122. ft follows that the restriction of the right to sue to a period within two years of the date of the loss contained in the body policy does not apply and is no defense. For the same reason the express warranty of seaworthiness at the commencement of .each passage must be disregarded.
But if it were to he held that the breaking of the propeller blades on
“This insurance also' to coyer subject to the special terms of this policy, loss of and/or damage to hull or machinery through the negligence of master, mariners, engineers, or pilots, or through explosions, bursting of boilers, breakage of shafts, or through any latent defect in the machinery or hull, provided such loss or damage has not resulted from want of due diligence by the owners of the vessel, or any. of them, or by the manager.”
The steamer was concededly seaworthy when she left New York, and we do not think she was unseawo.rthy when she sailed from San Juan on her return voyage. The burden of proving unseaworthiness is, in the federal courts, upon the underwriters. We find no lack of due diligence in the master in proceeding on the voyage in her then condition. His experience seems to have justified it. The first two .blades of the propeller were broken December 15th, and after reducing the pressure in the intermediate cylinder the steamer ran at her usual speed to San Juan, arriving December 17th. From there she proceeded without any trouble to Jobos, Ponce, - Mayaguez, Cuanica, back .to Jobos, and San Juan, leaving on her return voyage December 28th, and not breaking the rest of the blades until December 31st. It is the object of insurance to protect owners, among other things, against the negligence of their servants. We do not discover, under Insurance Company v. Smith, such lack of diligence in the master as would discharge the respondent from liability.
The decree is affirmed, with interest and costs.