223 F. 561 | 9th Cir. | 1915
(after stating the facts as above). 1. The policy of insurance upon which the present suit is based is embodied in a printed form, containing blanks which have been filled in by the Insurance Company with words and clauses appropriate and necessary to cover the risks assumed. At the end of the policy and as a part of such printed form there is the following clause:
“It is declared and agreed that com, fish, salt, fruit, flour and seed are warranted free from average unless general or the ship be stranded, sunk or burnt, and that sugar, tobacco, hemp, flax, hides and skins are warranted free from average under five pounds per centum unless general or the ship be stranded, sunk or burnt; and that all other goods, also freight, are warranted free from average under three pounds per centum unless general or the ship be stranded, sunk, or burnt.”
This clause is plainly inapplicable to the risk provided in the present policy, and is superseded by the following clause contained in certain conditions attached as a slip or rider to the margin of the policy:
. “Warranted free from jmrticular average, unless the vessel or craft or the interest Insured, be stranded, sunk or on lire.”
The warranty contained in the body of the printed form of the policy becomes therefore immaterial in the determination of the questions arising on this appeal, except in so far as its phraseology may throw some light upon the true interpretation and construction to be accorded to the special warranty contained in the attached slip above set forth. The warranty is what is known among insurance brokers as an “F. P. A.” (free from particular average),-or, a “particular average” warranty. In the absence of such a warranty a policy of insurance such as that involved in this case would be a particular average policy, and would cover both total and partial loss of cargo. The “E. P. A.” warranty, however, overrides and controls the other terms of the policy, and changes the protection of the policy. By its provisions only a total loss of cargo is insured against, unless one of the excepted events therein enumerated, stranding, sinking, or being on fire, should come to pass. Upon the happening of one of the excepted events the warranty is then deleated, blotted out, or canceled, and the policy is to be construed as if it had never attached, and the insured thereupon becomes entitled to recover from the Insurance Company for any partial loss of cargo suffered by it. In the present: case the loss sustained by the libelant was a partial loss. If, therefore, the Sardhana can be said to have been “on fire” within the meaning of that term as
“Warranted free from average, unless general, or the ship be stranded.”
But later it was found necessary to 'permit the occurrence of other casualties, besides stranding, to annul the exception, and (the English courts having held that “average, unless general” was equivalent to “free of particular average”) the clause consequently took the form, “warranted free from particular average unless the ship be stranded, sunk or burnt,” The clause remained in that condition until 1893, when it came under the consideration of the English courts for the first time in the case of The Glenlivet, 68 L. T. Rep. N. S. 860, 69 L. T. Rep. 706. In that case fires had broken out in the coal bunkers of the vessel on different occasions eand some damage was done to the structure of the vessel — a plate was cracked and some angle irons were burnt — and the question before the court was whether the ship had been “burnt” within the meaning of the word as used in a particular average warranty in a policy of marine insurance. The court held that the ship was not “burnt,” and the rule was there laid down that a ship is not “burnt” within the meaning of the warranty unless the injury by fire be of so substantial a character that the ship as a whole can be said to be. “burnt” in the popular sense of the term. Gow, in his work on Marine Insurance (page 179), referring to the word “burnt” as used in a particular average clause, and commenting upon the above decision, says:
“It is the ship that must be burnt, say a beam scorched, a floor charred, a ceiling burnt. Consequently the destruction of a cabin by Are removes the exception, while a fire in the cargo itself does not. Such was the view acted upon almost universally untii quite lately. But a recent decision of Mr. Justice Barnes [the Glenlivet, 1893] has raised a new point. Fire occurred thrice, once on each of three separate and distinct voyages, in the Glenlivet’s coal bunkers, but did not pass beyond them. As it was decided by Lord Ellen-borough that a mere touching of the ground was not sufficient to make a stranding, so it is now decided in the Glenlivet Case that a mere burning is not sufficient to take the exception out of the memorandum; it must be such a burning as to constitute a substantial burning of the ship as a whole. The judgment in the Glenlivet Case has excited considerable attention, as it takes away on principle what was long granted without question. But indeed it is not easy to see why a fire in a ship’s' bunkers or cabin should be enough to establish a claim for damage, to cargo arising from some other peril barred by the memorandum, when a touch and go graze on a rock, even if actually causing damage is not enough. Since the issue of the decision some ships have had the words ‘on fire’ added to ‘burnt,’ confessedly in the hope and expectation of thus restoring to the assured what has been taken from him by the decision.”
•And this is the condition in which we find the warranty in the present case, with the exception that the word “burnt” has been entirely left out, and the words “o-n fire” substituted therefor. The clause thus worded has never been construed by the courts of either the United States or Great Britain ;■ and in our determination of the question we
“The company cannot justly complain of such a rule. Its attorneys, officers, or agents prepared the policy for the purpose, we shall assume, both of protecting the company against fraud, and df securing the just rights of the assured under a valid contract of insurance. It is its language which the court is invited to interpret, and it is both reasonable and just that its own words should be construed most strongly against itself.”
“About 9:30 p. m. smoke was discovered issuing from tbe after hatch by one of the crew, who immediately notified the master and then gave the alarm. This alarm was responded to by the crews of the ship Jupiter, the steamship Hornelen and the employés of the Pacific Creosoting Company, who brought with them several chemical fire extinguishers. The master went below through the lazarette and saw the reflection of the fire over the top of the-bulkhead between the after ’tween-decks and the lazarette. The after ’tween-decks were still full of cargo. After considerable trouble the fire was extinguished, and it was then discovered that the aforesaid bulkhead, together with the door thereof [the bulkhead was built in the vessel] and the dunnage in the after ’tween-decks were burned, and some 'of the ship’s stores in the lazarette were damaged by water and chemicals. The origin of the fire was-not discovered.”
This entry is supported by testimony in the case to the effect that the fire appeared to be quite stubborn, and a great deal of difficulty was experienced in putting it out, and that the time which elapsed from the time the alarm was given until the fire was out was from one-half to one hour. It is not denied that assistance was rendered by crews of neighboring vessels, and that chemical fire extinguishers furnished by the libelant were used in putting out the fire.
We are of opinion that the testimony of the witnesses, together with the exhibit above referred to, show beyond dispute that the Sardhana was “on fire” within the meaning of the term as used in the warranty. This determination finds support in the comment of Gow above set
In connection with the testimony of the witness Beckett there must also be noted the change of terms in the policy involved in this case. In the body of the policy, and constituting a part of the printed form thereof, corn, fish, salt, fruit, flour, and seed were warranted free from average, unless general, or the ship be “stranded, sunk or burnt,” sugar, tobacco, hemp, flax, hides, and skins were warranted free from average under five pounds per centum, unless general, or the ship be “stranded, sunk or burnt,” and all other goods, including freight, were warranted free from average under three pounds per centum, unless general, or the ship be “stranded, sunk or burnt.” The fact that in the special warranty the term “on fire” was substituted for the word “burnt” conclusively shows, in our judgment, a deliberate intent on the part of the Insurance Company to change the nature of the perils assured against and to- increase the risk assumed by it under the policy.
The conclusion at which we have arrived is based mainly upon the facts as they appear in the present case, and we must not be understood as laying down a rule which would be applicable to all cases which might arise under similar warranties. Each case, as we have stated, must be determined with reference to its own particular facts. The Supreme Court of the United States in construing the word “collision” in a policy of marine insurance laid down a similar rule in the case of Eondon Assurance v. Companhia de Moagens, supra, and the English courts have consistently left to be determined by the facts of each case the vexing questions relating to the word “stranded” in warranties similar to the one now under consideration.
*570 “And the said company promises and agrees that the insurance aforesaid shall commence upon the freight and goods or merchandise aforesaid from the loading of the said goods or merchandise on board the said ship or vessel at as above, and continue until the said goods or merchandise be discharged and safely landed as above.”
Then after enumerating certain perils insured against it was provided :
“And of all other perils, losses and misfortunes that have or shall come to the hurt, detriment or damage of the aforesaid subject-matter of this insurance or any part thereof.”
Turning again to the special warranty contained in the slip attached to the policy of insurance, we find that the insurance there provided ■covers “all risks of craft and boats,” and also— „
“all risks of transshipment and of craft, lighterage and/or any other conveyances, from the warehouse until on board the vessel and from the vessel until safely delivered into warehouse.”
The liability of the Insurance Company for the loss sustained by the capsizing of the lighter or barge on which the creosote had been loaded preparatory to being conveyed from the vessel and delivered into the warehouse could hardly be expressed in plainer language, and these clauses must be deemed to be decisive of the question. The contention of the Insurance Company that under the contract of affreightment it was incumbent upon the libelant to furnish a lighter in all respects seaworthy, and that duty was not performed by it, does not, for many reasons, appear to be available to the Insurance Company as a defense to» the loss here claimed by the libelant. The contract of affreightment is not in the record, and we do not know what the provisions of that contract were. Nor do we know that the libelant furnished the lighters for the landing of the. cargo, or was required so to do. The only evidence upon the subject is that of Capt. David Baird, who was called as a witness on behalf of the Insurance Company. He testified that he was the marine surveyor or superintendent at Seattle for the owners of the vessel; that part of his duty was to see the vessel discharged; that he didn’t know who» furnished the scows, and was unable to state what the conditions of the charter were. In answer to the direct leading question whether the ship was freed from liability after the cargo» left her tackle he answered in the affirmative, and when asked how he knew that he replied it was in the charter party, “that it was the usual clause in every case,” but when asked' if he knew it was in this charter party he said he “would not swear at present that it was.” Capt. Alexander Wallace, the master of the vessel, whose deposition was taken by the Insurance Company, testified that the car-' go was discharged by stevedores under his supervision, but he was not asked and did not state who furnished the lighters for conveying the cargo to the warehouse. How can it be said upon this testimony that it was incumbent upon the libelant to» furnish a lighter in all respects seaworthy? But assuming that it did furnish the lighter, what evidence is there that it was unseaworthy? The presumption of law is that every vessel is seaworthy until the contrary is proven.
The policy of insurance in the present case is an English policy, and any controversy respecting its terms must, of course, he determined by the law of that country. London Assurance v. Companhia de Moagens, 167 U. S. 149, 162, 17 Sup. Ct. 785, 42 L. Ed. 113.
“The English courts have held, and do now hold, that the expression ‘free of particular average unless the vessel be stranded’, meant that if a loss occurred during the adventure, although from a cause not related in any way to the stranding of the ship, the insurers were liable upon the general language of the policy. * * * Although the original language of the memorandum confined the exception to a stranding of the ship, it was afterwards extended so as to read, ‘free of particular average unless the vessel be sunk, burned, stranded or in collision.’ The same rale applies to all, and if the vessel be etcher sunk, burned, stranded or In collision, it is sufficient to render the insurer liable, although the loss does not result therefrom.” London Assurance v. Companhia de Moagens, supra.
The decree of the court below is affirmed.