Virginia-Carolina Chemical Co. v. Chesapeake Lighterage & Towing Co.

279 F. 684 | 2d Cir. | 1922

HOUGH, Circuit Judge

(after stating the facts as above). Whether libelant ever intended to allege any wrong or breach of contract on the part of Chesapeake Company as carrier of the kainit is doubtful; but it is certain that no proof exists of any dereliction by that company in respect of the carriage. Consequently the carrier as such is without negligence, and as no effort was made to charge Chesapeake Company as insurer merely because it carried, the cases from Inman v. Railway Co., 129 U. S. 128, 9 Sup. Ct. 249, 32 L. Ed. 612, through Pennsylvania Co. v. Burr, 130 Fed. 847, 65 C. C. A. 331, and Bradley v. Lehigh, etc., Co., 153 Fed. 350, 82 C. C. A. 426, to Luckenbach v. McCahan, etc., Co., 248 U. S. 139, 39 Sup. Ct 53, 63 L. Ed. 170, 1 A. L. R. 1522, do not apply. It is true that this shipper had the kind of insurance, and pursued the procedure on settlement, followed by the shippers in the cases cited; an insurance and procedure successfully designed to prevent a carrier, liable on his contract of carriage, from escaping liability by a bill of lading agreement whereby such carrier (in effect) obtained tl e benefit of shipper’s insurance. Phoenix Ins. Co. v. Erie, etc., Co., 1 7 U. S. 312, 6 Sup. Ct. 750, 29 L. Ed. 873.

But Chesapeake Company is, by a section of decree below whereof no one complains, exonerated, not only from liability as carrier, but fi om all liability whatever. This suit, like all but a negligible fraction o:' admiralty proceedings on the instance side, must rest on either a marine tort or a maritime contract. Tort is eliminated as above shown; tl erefore the suit as against Chesapeake Company must have proceeded on the theory that said company agreed on due consideration to insure —i. e., procure insurance available to — libelant in respect of the kainit. And acquiescence in discharge of Chesapeake Company, by the lower court must mean that said company (in libelant’s opinion) fulfilled whatever obligation it undertook, by procuring or maintaining the Firerr an’s Fund policy; therefore this suit is by the libelant as one insured by the Fireman’s Company, and on no other ground can it be maintained ir. the admiralty.

The form has been dwelt upon as important, for in substance this li:igation is obviously a sort of case stated by two insurance companies, with a request that the courts decide which of the two has succeeded ir. maneuvering the loss upon the other. Of such an effort it may be said in the recent phrase of Holmes, J., that “neither side would be likely to inspire enthusiasm.”. Oelwerke v. Erlanger, 248 U. S. 521, 39 Sup. Ct. 180, 63 L. Ed. 399, and no court should or can do more than ir quire whether under the pleadings and evidence the libelant has made out a case within the jurisdiction.

[ 1 ] Again libelant must consider that Chesapeake Company fulfilled whatever promise to insure.it ever made; for, if the suit be regarded a; one to recover damages for a failure to insure or procure insurance, admiralty has no jurisdiction; the contract is not maritime. Marquardt v. French (D. C.) 53 Fed. 603, approved United, etc., Co. v. New York & Baltimore, etc., Line, 185 Fed. 386, 390, 107 C. C. A. 412.

[2] Further it must be regarded, in order to establish jurisdiction, that libelant became the insured under the Fireman’s Fund policy the moment the kainit went on Chesapeake Company’s barge (Southern, etc., Co. v. Merchant’s, etc., Co. (D. C.) 179 Fed. 133, 136, and case c ted), and that as such insured libelant can sue in its own name (The Sidney, 23 Fed. 88, 93), even though the Fireman’s Fund policy specific ally provides, “Foss, if any, payable to” Chesapeake Company. On this last point we express no opinion, but assume it for argument’s sake.

[3] Having thus made the assumptions necessary to admiralty jur.sdiction, we arq clear that libelant as the insured under Fireman’s Fund policy cannot recover, for that policy specifically provides that it does not cover “where the assured has insurance which would attach if this policy had not been issued,” and libelant had exactly that kind of insurance under the Federal policy. If, however, the Chesapeake Company be regarded as the insured, and this suit be an effort to get at the Fireman’s Fund over Chesapeake’s shoulder, then (assuming the technical propriety of the attempt) it was wrong to dismiss the libel as against Chesapeake Company.

This hrings us to what we think the crux of the case, and on an appeal which is a new trial, we may inquire whether the evidence warranted finding in substance that Chesapeake Company ever agreed to procure or furnish insurance to libelant. Libelant said the promise was to insure “provided there was no prior insurance,” while Chesapeake Company said it only so agreed if the kainit “were not otherwise insured.” The two statements are far from meaning the same thing. Prior insurance is a technical term, concerning which much fine-spun arguing can be, and lias been made; but “otherwise insured” is a plain expression, and no one can doubt that, when some agreement was made, libelant was otherwise insured. One oath is as good as the other; the probabilities are. all with Chesapeake Company, if its promising employee had the slightest acquaintance with the intricacies of marine insurance. It is certain that by no fair preponderance of evidence did libelant prove the controverted fact that Chesapeake Company agreed to insure by any form of words that would or could enable shipwr’s insurers to transfer their burden to carrier’s insurers.

Where the carrier is guilty of fault, the cases first above cited (and many others) show just how his insurers (if any there are) can be made to hear the burden of that fault; notwithstanding any effort yet exhibited in the reports, on the carrier’s part and embedded in the contract of carriage, to escape the consequences of fault. This is an endeavor to put on a carrier, who committed no fault, a burden assumable only by express contract. Such contract is (1) not proven; but (2) if the Fireman’s policy be the fruit of the contract, libelant can only sue thereon as the assured — a legal position which defeats its occupant.

Decree reversed, without costs, and cause remanded, with directions to dismiss the libel, without costs.