88 Me. 435 | Me. | 1896
The plaintiffs and the defendants, lime burners in the county of Knox, formed a business company to continue one year for the purpose of insuring each other upon cargoes of lime shipped by them coastwise. The business was to be conducted by a committee of members, who, in case of damage to any cargo underwritten, were to "determine the amount due and pay the same at their first regular meeting after the claim for loss is presented, unless the association has insufficient funds, in which ease thirty days’ time for payment shall be granted. An appeal may be made to a majority of two-thirds of the votes of the association whose decision shall be final.” Each kiln was entitled to one vote. All suits at law between members wrere prohibited, except on demand notes.
No action at law could be maintained upon any policy, because the promise was to be joint, and not several as in the Lloyd’s method, and the assured would become both plaintiff and defendant ; so the prohibition against suits at law on policies was but declaratory of the law itself and, therefore, has no significance.
The stipulation iu the articles that the association shall finally determine the amount due on any loss, is not strictly an arbitration clause, because it is an agreement inter sese, between' associates, and does not purport to submit controversies to disinterested persons. An arbitrator is said to be "a private extraordinary judge, chosen by the parties, who have a matter in dispute, invested with power to decide the same.” Gordon v. United States, 7 Wallace, 194. He should be disinterested, "for no man can lawfully sit as a judge in his own case.” State v. Delesdernier, 2 Fairf. 473; Friend, appellant, 53 Maine, 387. "An interest that disqualifies from judicial action may be small, but it must be an interest, direct, definite, and capable
The stipulation in question differs from an arbitration clause in that it is an agreed method of procedure between associates, partners, joint promisors, where the claimant is himself one of them. Viewing it thus, what good reason can be given why they should not be held to their agreed methods of procedure ? It is very like the by-laws of a benefit corporation that bind the members to their observance, as a prerequisite to a forum in the courts. Jeane v. Grand Lodge, &c., 86 Maine, 434. It is certainly a reasonable requirement, consistent with the purposes of the association, to mutually indemnify each other in the specific transit to market of their manufactured goods, upon equitable conditions. Equity alone has jurisdiction over their matters, because of mixed interests in all controversies that may arise.
No point is made but that the terms of the .stipulation have been complied with. The associates considered the plaintiff’s claim, after investigation by the committee and a full hearing and decided that he had none. In this proceeding, the decision was in the nature of an award ; each associate was an insurer. All participated and determined the whole matter, not effectually’,
In this cause, the decision of the associates is not an award in the strict sense, but a procedure in an equitable controversy, between joint associates, that determines their rights inter sese, and it should bind them, except for cause shown to the contrary. They were all interested parties, and that fact and the evidence adduced may show a denial of equitable relief that should be given, and it may show the reverse. At any rate, the whole cause may be heard anew to see if any such error or mistake intervenes as should change the result. The relief prayed for is equitable relief, and will be granted or withheld as sound discretion may demand.
The insurance was against perils of the sea for a particular voyage. A voyage policy does not attach unless the vessel be sea-worthy at the inception of the voyage, which is presumed, but may be rebutted. Dodge v. Ins. Co. 85 Maine, 215; Hutchins v. Ford, 82 Maine, 370. It is so whether the insurance be upon the ship, or upon the cargo, or upon freight. Van Wickle v. Mechanics Ins. Co. 97 N. Y. 350; Higgie v. American Lloyds, 14 Fed. Rep. 143; Higgie v. National Lloyds, 11 Biss. 395; Daniels v. Harris, L. R. 10 C. P. 1. " She must not be overloaded and the cargo must not be badly stowed.” Arnould, 649.
In this cause, the insurance was " at and from Rockland to New York,” meaning until safely landed in New York, or for a reasonable time to land there under the usages of
Tempests and rough weather are common incidents in sea transit. How long a voyage may continue is beyond the power of prophecy to foretell at the inception of it. Fair winds may serve or head winds may drive the vessel off her course. The voyage policy continues until the port of discharge shall have been reached, and, if upon goods, until they may have been safely landed. If the goods be of a perishable nature, and decay from a protracted voyage before they can be landed, the loss would not be from a peril of the sea. If the cargo be shaken and stove from the inherent weakness of the packages unsuited to withstand the roughness of sea transit, or caused by the effect of their contents during the voyage, it -would not be from a sea peril, but from natural causes produced either by the fault of the shipper or by the inherent nature of the goods. The condition of the cargo when landed does not raise the inference that its injury resulted from a sea peril, but the burden rests upon the plaintiff'to prove the fact.
The general rule is that everything which happens through
Lord Ellenborough in Cullen v. Butler, 5 M. & Sel. 461, distinguishes between perils on the seas and perils of the seas. Lord Herschell says the latter phrase "does not cover every accident or casualty which may happen to the subject matter of the insurance on the sea. It must be a peril of the sea.” . . . "There must be some casualty, something that Could not be foreseen as one of the necessary incidents of the adventure. The purpose of the policy is to secure an indemnity against accidents which may happen, not against accidents which must happen.” The Xantho, L. R. 12 App. 503.
It is not always easy to mark the line between the ordinary operation of the elements and their perilous action. The latter must be the proximate cause of the loss. Lord Bacon’s reason is : "It were infinite for the law to consider the causes of causes, and their impulsions one on another; therefore it contenteth itself with the immediate cause.” Gow on Insurance, §§ 92, 137.
In applying this rule to the cause at bar, the only direct damage to the cargo clearly shown is that resulting from the.contact with sea water, amounting to less than the particular average excepted. The remaining damage to the cargo is not shown to have resulted but from the unexpectedly long voyage, that may have excited the internal qualities of the goods, causing the packages to shrink and scatter their contents so as to need
But it may be said that the damage within the particular average clause, gave the cargo a bad reputation and thereby lessened its market value ; this result might be, and yet not bo within the terms of the policy. Benneke, 438. No case is cited that holds such doctrine; on the contrary, Cator v. The Great Western Ins. Co. of New York, L. R. 8 C. P. 552, holds the reverse. That was insurance upon packages of tea. Some were damaged and others were -not, but the damage was restricted to the former, although there was a clause in the policy excepting damage other than by contact with sea water. The court held the rule would be the same without the clause, for insurance covers actual damage, and not suspicion of damage. Montoya v. Royal Exchange Ins. Co. 6 Ex. 451, supra,
The plaintiffs were compelled to pay damages for delay in discharging cargo, and claim that as an element of damages. But, if all the damage to cargo was less than the particular average excepted, so that no liability on account of cargo attached to the underwriters, it would be singular to hold them for the plaintiffs’ fault in delaying to seasonably unlade their cargo.
The decision of the association weighs heavily in determining this cause, especially as the evidencé warrants the result arrived at upon the application of the law of the case. There is conflict of testimony and the association heard and considered it all, and all its members were practical men in the handling of lime and knew its peculiar qualities and dangers, and they must have considered that the principal damage to the cargo came from its own inherent qualities, excited by the long continued transit.
Bill dismissed icith costs.