Williams v. New England Ins. Co.

29 F. Cas. 1383 | U.S. Circuit Court for the District of Massachusetts | 1869

CLIFFORD, Circuit Justice.

Three principal defences are set up by the. defendants to the claim of the plaintiff, but tney will be considered in the reverse order from that in which they were presented at the argument. They contend that the plaintiff cannot recover, for the following reasons:

1. Because the ship was lost, not by perils insured against, but by the wrongful act of the insured, or his agents.

2. Because the employment of the steamship in the military service was such a change of risk contemplated by the parties, as to discharge the underwriters from their liability.

3. Because the steamship, when she sailed, was unseaworthy for the intended voyage and was lost by reason of such unseaworthiness.

Marine insurance is a contract whereby one party for a stipulated sum undertakes to indemnify the other for loss arising from certain perils or sea-risks to which ship-merchandise or other interest may be exposed, during a certain voyage or for a certain period of time. Seaworthiness of the ship for the voyage when she sails is a condition precedent to the liability of the underwriter for any loss incurred in the course of the voyage. Repairs may be made while the vessel is in port and during the lading of the cargo, as it would occasion much delay and unnecessary expense to require that she should be completely repaired before she can take on board any part of her cargo, and such a rule, if adopted, would be of no benefit to the insurers, provided the vessel is made seaworthy before she sails. Merchants’ Ins. Co. v. Clapp, 11 Pick. 56. The meaning of that requirement is, that the vessel shall be staunch and strong, that she shall be suitably furnished, and that she be provided with a competent master and with a crew adequate in number and with sufficient experience for the voyage. The Niagara v. Cordes, 21 How. [62 U. S.] 23. Provided the ship is seaworthy and properly commanded, equipped, and manned when she sailed, as the contract requires, the insurers are hable for any loss proximately caused by the perils insured against, although they have been remotely occasioned by the negligence or misconduct, not amounting to barratry, of the master or crew, whether such negligence or misconduct consisted in omitting some act which ought to be done, or in doing some act which ought not to be done, in the course of the navigation. Redman v. Wilson, 14 Mees. & W. 476; Patapsco Co. v. Coulter, 3 Pet. [28 U. S.] 236; Columbia Ins. Co. v. Lawrence, 10 Pet. [35 U. S.] 517; Waters v. Merchants’ Ins. Co., 11 Pet. [36 U. S.] 218; 2 Arn. Ins. 770; 1 Phil. Ins. § 1051.

Underwriters are held to be liable under such circumstances, by the very terms of the policy, as they take upon themselves all losses by the perils therein enumerated without any reference to the fact whether they are attributable to tbe negligence or default of the master or crew, or to mere accident or irresistible force. Doubtless such an exception might be made, but the law will not make it, where there are no words in the policy to signify that such was the intention of the parties, as the owner is not in general in any better condition to guard against a loss by such means than the insurers. Hale v. Washington Ins. Co. [Case No. 5,916]; Copeland v. New England Marine Ins. Co., 2 Metc. [Mass.] 432. But the insurers are not liable for a loss -even by the perils enumerated in the policy, if it was occasioned by the wrongful act of the insured or his agents, for wnose conduct he was directly responsible. 1 Phil. Ins. 1046.

Authorities to prove that persons insured cannot recover for a loss occasioned by their own wrongful acts are hardly necessary, as the proposition involves an elementary principle of universal application. Losses may be recovered by the insured, though remotely occasioned by the negligence or misconduct of the master or crew, if proximately caused by the perils insured against, because such mistakes and negligence are incident to navigation and constitute a part of the perils which those who engage in such adventures are obliged to incur, but it was never supposed that the insured could recover indemnity for a loss occasioned by his own wrongful act or by that of any agent for whose conduct he was responsible. Thompson v. Hopper, 6 El. & Bl. 944; Marsh, Ins. 376; American Ins. Co. v. Ogden, 20 Wend. 305; Bell v. Carstairs, 14 East, 374; Cleveland v. Union Ins. Co., 8 Mass. 308.

Attention will next be called to certain other material facts of the case, as agreed by the parties. They agree that the order from the steam-tug to the steamship to cross the bar was given by direct authority from the commander of the expedition, and that the draught of the steamship was known to the master of the tug who gave the order, and that the draught of water upon that bar was a well-known and notorious fact; that the shoalness of the water there is such that a steamship of the draught of the steamship in question could not reasonably be expected at any stage of the tide to cross that bar in safety; that a vessel of the dratight and build of the steamship was an unfit vessel for a voyage across that bar, because she would, under the most favorable circumstances, strike upon the bar, and, unless taken in tow by a steamer of lighter draught, such striking would naturally if not inevitably result in her loss; that there was a strong wind and a high sea at the time the attempt to cross the bar was made, increasing both the ordinary liability to strike and the danger resulting from it; and they also agree that taking into consideration the state of the tide, sea, and wind at the time, the attempt to cross the bar was an unjustifiable, rash, and hazardous act of navigation which no prudent or skilful navigator would have undertaken; that the master would not have made the attempt except from the compulsory order from the steam-tug, but would have remained at anchor in safety where he was when he received the order off Harteras Inlet. Apart from the other defen-ces, it is quite clear that the facts set forth in the agreed statement applicable to the proposition under consideration show that plaintiff cannot recover.

Obedience to the order from the steam-tug could not be refused, as it emanated from the general commanding the military expedition, who beyond question represented the United States. Orders given by a commanding general under those circumstances must be regarded as of the same effect as if given by the president, as they were not countermanded and have never been disavowed. The Venice, 2 Wall. [69 U. S.] 276. Beyond question the United States were the charterers of the steamship, and as between these parties they must be regarded as the agents of the owners of the steamship. Viewed in that light, the question is, whether the owners, if they had given the order to cross the bar when it was given by the steam-tug, and the steamship had been lost, would have been entitled to recover.