95 F. 103 | 2d Cir. | 1899
Lead Opinion
June 14, 1891, near midnight, a collision occurred between the libelant’s steam tug F. W. Devoe and the yacht Ameila in the North river, and as a result the yacht sank and two of the persons on board of her were drowned. The 2Etna Insurance Company had, by its policy dated February 12, 1891, insured the libelant “and others on account of whom it may concern, loss payable to him or order” in the sum of $2,500, against such loss or damage as the steam tug might “become legally liable for from accident caused by collision.” That policy was in force at the time. Prompt notice of the disaster was duly given by the libelant to the insurance company pursuant to the terms of the policy. Within a week or 10 days thereafter the libelant instituted proceedings in rem in the district court of the United States for the Southern district of New York for the limitation of his liability as owner of the steam tug. In that suit the owners of the yacht, as well as other persons having claims arising from the collision, were served with process and appeared, and the question of the responsibility of the tug was litigated; and it was adjudged that the libelant was liable for the collision and the damages and injury arising therefrom to the extent of his interest in the vessel, and the damages sustained by the owner of the yacht and the other claimants were agreed upon between the parties, and the vessel was sold and the proceeds distributed pro rata among those entitled thereto. In this proceeding the libelant employed as his attorneys a law firm who had been accustomed to represent the insurance company in its litigations. They undoubtedly supposed that they were representing its interests as well as those of the libelant in the proceeding. At the termination of the proceeding, however, the insurance company repudiated any connection with the proceeding and all liability for the loss, and on June 3, 1893, proofs of loss were served on the company by- the libelant. In the following month he filed the libel in the present cause to recover the loss insured by the policy. The insurance company alleged as defenses that the master or pilot in command and charge of the tug at the time of the collision was incompetent and unfit to navigate her, and was intoxicated at the time and when she started on the voyage upon which the collision occurred; that the damages and injuries which resulted from the collision arose on the part of the steam tug, her owner, master, or pilot, and the persons in charge of her navigation, from a want of ordinary care; that the policy of insurance provided that all claims thereunder should be void, unless prosecuted within 12 months from the date of the loss, and, the libelant not having prosecuted said
An examination of the record of this appeal discloses a meritorious demand against an insurance company, and defenses by the company which are not creditable to the sense of justice of its officers.
The proofs show that the tug was in command of a duly-licensed master. Her navigation at the time was in charge of the mate, one Walch, who was a duly-licensed pilot. Walch had taken the wheel when the tug started on the voyage, the master being with him at the pilot house at the time. Tie had just come aboard, and was undoubtedly under the Influence of liquor, but not sufficiently to attract the notice of the master. It required skillful management to take the tag out, the exit from her slip being obstructed by a tow of ice barges. After Walch had accomplished this, the master went off duty to sleep. The collision occurred within half an hour later, and was caused bv the gross carelessness of Walch, who by that time was so intoxicated as to be incapable of performing his duties properly. There is no evidence; that either the master or the pilot was incompetent or unddllful in their vocation, or were not in good repute, and none to impute any fault or remissness to the libelant in employing either of them. It is no defense to a contract of insurance that the loss occurred through the negligence of the assured, or of his servants, unless the contract expressly constitutes such negligence a defense. One of the principal objects which the assured has in view in effecting an insurance is protection against casualties accruing from these causes. Ang. Ins. § 125. The policy contains a warranty that the tug “shall at all times be in charge of and commanded by a duly-licensed pilot or captain.” It contains also the following:
"Warranted by the assured tliat the said steam tug, with her tow, shall not go out of the regular and usual channels, and also warranted free from loss, damages, or expense caused hy or arising from so doing, or from ignorance on the part of the master and pilot as to any port or place the steam tug may use, or from want of ordinary care or sldll.”
It is insisted by the insurance company that there was a breach of the warranty against loss arising “from want of ordinary care and skill.” The collision undoubtedly occurred through want of ordinary care or skill, and, if it is the meaning of the policy that the insurance company shall not he liable in any such case, the proofs establish a defense. But this warranty is found in a contract which has no other purpose than to indemnify the assured against the loss which he may sustain through the improper navigation of his own vessel, and, as such a loss cannot arise in any other way or from any other cause than the want of skill or care of those in charge, the contract would he of no value to him, and would be nugatory as to the insurance company, if the warranty is given the effect claimed for it. It was
We have thus considered all the questions which have been presented by the -appeal, except those which relate to the amount of the recovery awarded the libelant. It is unnecessary to discuss these in detail, because, upon the proofs, it satisfactorily appears that the libelant was entitled to a larger recovery than was awarded to him by the decree. The policy provides that “all losses shall be paid in such proportion as the amount insured bears to the value of the said steam tug, as expressed in this- policy.” By the policy the tug was valued at $5,000. The policy also provides that “in all cases of loss $100 shall he deducted therefrom,” and also that the liability of the company “for loss and damage to vessel or vessels is to be limited to the amount of actual repairs rendered necessary in consequence of any disaster insured against.” By the collision the yacht was practically destroyed. Her value at the time was from §3,500 to $4.000. She sank in over 50 feet of water, it cost $-120 to ra-ise her and get her ashore, and the owner sold her to a boat builder for $100. The latter did not attempt to repair her, obviously because she was not worth repairing. The testimony introduced by the insurance company that she could have been repaired for a practically trifling sum is worthless. The damages to the yacht caused by the collision, and for which the tug was liable, were, at a moderate estimate, $3,500. Deducting from Ibis sum $100, as required by the policy, the amount which the libelant was entitled to- demand of the insurance company by the terms of the policy was $1,700. The decree of the court be
Concurrence Opinion
I concur in the conclusion that the decrees in this case and in the case of Rogers v. Home Ins. Co., 95 Fed. 109, should be affirmed. The company contracted to respond only for “such loss or damage as the tug may become legally liable for,” and has stipulated that “the liability of the tug for such loss or damage [shall be] determined by a suit at law, or otherwise, as this company may elect.” The companies in these cases did not elect to reimburse without requiring the assured to stand suit; and I am therefore of the opinion that the “loss” insured against is the sum fixed by such suit at law as the damage for which the tug became liable, — a loss which was not incurred until the amounts payable to the injured parties were finally determined by suit, — and am further of the opinion that, by requiring the assured to have such loss fixed by a suit against him (instead of themselves adjusting it with him as the policies provided that they might elect to do), they have estopped themselves from questioning the amount thus fixed, or the costs in