273 F. 55 | 9th Cir. | 1921
Lead Opinion
(after stating the facts as above). One of the questions involved on the writ of error is whether or not the vessel was lost through a peril covered by the policies. The defendants contend that each policy limited the perils insured against to fire and collision, as expressed in the rider which was attached to each. The riders were printed forms, and are identical, but there is^some difference in the marginal indorsements on the policies and in the portions of the bodies of the policies which were deleted. The riders begin thus:
“This policy is to cover only as follows: Loss or damage caused by lire in accordance with the terms and conditions of the regular California standard form of fire policy as issued by the .¿Etna Insurance Company, of Hartford, Conn.”
“Loss or damage done to another ship or vessel through collision in accordance with the terms and conditions of the following collision clause.”
Then follows a printed collision clause, and special provisions therein limiting liability to damage in the amount of $750 or more. On the margin of the TEtna and llie Union Marine policies, impressed by a rubber stamp, are the words:
“It is agreed that clauses on slip attached hereto form part of this policy.”
Also the words:
“Subject to limitations of trade as specified in slip attached to this policy.”
At the foot of each rider is the following:
“The foregoing (‘lauses are to be regarded as substituted for the terms of the policy to which they are attached, the latter being hereby waived.”
In the body of the TEtna policy a collision clatise differing in terms from that contained in the rider was deleted, marked:
“Void. J. A. W.”
_ Other portions of the body of the policy, which were deleted and similarly marked, were a provision in regard to general average and a provision excluding liability for any sum which the assured might
The same construction, we think, should be given to the other two policies, although there are no deletions therein. They each contain in the body of the policy a fire risk and a collision clause. It is the language of the insurance company that we are called upon to construe, “and it is both reasonable and just that its own words should be construed most strongly against itself.” National Bank v. Insurance Co., 95 U. S. 673, 679, 24 E. Ed. 563; Thompson v. Phenix Ins. Co., 136 U. S. 287, 10 Sup. Ct. 1019, 34 L. Ed. 408. Eight is thrown upon the defendant’s own understanding of the contract by the fact that, when notified of the abandonment of the vessel, they made no claim that loss occurred from a cause not insured against, but wrote to the plaintiff that their policies “were rescinded and voided by the unseaworthiness of said vessel which caused her loss.”
“Custom or usage which contradicts the express terms of a policy of insurance is not controlling.” 12 Cyc. 1098, and cases there cited; 17 C. J. 506; Arnould, § 56.
Nor was it error to exclude testimony offered to show that, in applying for insurance, the plaintiff’s agent agreed with the agent of the Union Marine Insurance Company that the only risks intended to be insured against were fire and collision. If the contract failed to express the intention of the contracting parties, the remedy was by a suit to reform the policy. Insurance Co. v. Mowry, 96 U. S. 544, 547, 24 L. Ed. 674.
The defendants rely on New York P. R. S. S. Co. v. Ætna Ins. Co. (D. C.) 192 Fed. 212, where Judge Hand held that the rider superseded the policy. In that case there was a printed rider pasted on the face of the policy immediately below the first general statement of the name of the steamship, the amount of the risk, and the period for which it ran, and it contained “all the provisions of the usual English marine policy.” At the bottom were the words:
“The terms and conditions of this form are to be regarded as substituted for those of the policy to which it is attached, the latter being hereby waived.”
The decision was affirmed in New York & P. R. S. S. Co. v. Ætna Ins. Co., 204 Fed. 255, 122 C. C. A. 523. The difference between that case and this is that in that case the rider contained all the provisions of the usual English marine policy, was dated and signed by the agent of the insurance company, and was attached in such a way as to indicate that it was substituted for everything in the policy except the name of the steaniship, the amount of the risk, and the period thereof. In the present case the rider affected only two provisions of the policy, and the way in which each insurance company dealt with the body of the policy indicated to what extent it was to be affected by the rider, and to whát extent it was intended to remain in force.
The defendants in their answer admitted that the vessel was wrecked, but they alleged that at the time of the wreck the vessel was unseaworthy with the privity of the plaintiff. A witness for the defendants testified that after leaving port, on her voyage from San Francisco to Sacramento, the vessel encountered stormy weather, with a high wind; that it was a “bad storm,” and that an hour later 8 or 10 seams on the starboard side opened for a distance of 20 or 30 feet,
“Claims if any, including ciaim for constructive total loss to be adjusted according to tbe English law and practice.”
By English law and practice the rule is conclusively established that in a time policy a warranty that the vessel is seaworthy will under no circumstances be implied. Amould on Marine Insurance, § 697. Leading cases so holding are Gibson v. Small, 4 H. L. C. 353, and Dudgeon v. Pembroke, 2 App. Cas. 284. If we assume that the defense pleaded in the answer, that at the time of the wreck the vessel was unseaworthy “with the privity of the plaintiff,” and that her unseaworthiness occasioned her loss, is equivalent to the plea which in Thompson v. Hopper, 6 El. & Bl. 937, and Dudgeon v. Pembroke, was sustained as an exception to the rule, a plea alleging that the shipowner himself knowingly and willfully sent the ship to sea in an unseaworthy state and that she was lost in consequence, the fact remains that the defendants here made no offer to prove such knowledge on the part of the plaintiff.
“It is well settled that it is not every loss or damage of which the sea is the immediate cause that is covered by these words. They do not protect, for example, against that natural and inevitable action of the winds and waves which results in what may be described as wear and tpar. There must be some casualty, something which 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 the events which must happen. It was contended that those losses only were losses by perils of the sea which were occasioned by extraordinary violence of the winds or waves, I think that is too narrow a construction of the words, and it is certainly not supported by the authorities or by common understanding.”
In Dudgeon v. Pembroke, Lord Penzance said:
“The real question intended to be raised, therefore, is whether a vessel not strong enough to resist the perils of the sea (in another word, unseawrorthy) can be properly said to be ‘lost by perils of the sea,’ when it is clear that by the force of the winds and waves it went ashore, and finally broke up and went to pieces. The question, therefore, is one of law, and not of fact, and*61 the learned judge was quite justified in entering the verdict as he did without asking the jury any further question as to the loss. * * * It was said by one of the learned judges in the Exchequer Chamber that ‘the unseaworthiness of the ship at the commencement of the voyage, which really causes the loss, is a fact, the consequences of which are imputable to the assured, and were to be borne by him, and not the underwriters.’ But the question, as it seems to me, is not what losses ought in the abstract to be borne by the assured as being ‘imputable’ to him or his agents, on the one hand, or by the underwriters as being caused by the elements, on the other hand, but what losses they have mutually agreed should be borne by the underwriters in return for the premium they have received. These losses are in the contract of insurance, amongst others, declared to be all ‘losses by perils of the sea.’ A long course of decisions in the courts of this country has established that ‘causa próxima et non remota spectatur’ is the maxim by which these contracts of insurance are to be construed, and that any loss caused immediately by the ¡perils of the sea is within the policy, though it would not have occurred but for the concurrent action of some other cause which is not within it.”
In Ajum Goolam Hossen v. Union Mar. Ins. Co., 17 T. L. R. 367, the court held that the assured could recover, although in that case the loss did not appear to be traceable to any violence of wind or wave, and it is the settled doctrine of the English courts that in case of foundering at sea, where there is no proof of the cause thereof, it will be presumed that the loss occurred through the peril of the sea. Amouid, § 813. Rule 7 of the First Schedule of the English Marine Insurance Act of 1906 provides:
“The term ‘perils of the seas’ refers only to fortuitous accidents or casualties of the seas. It does not involve the ordinary action of the winds and waves.”
We reach the conclusion that by the English law and practice a peril of the sea need not be extraordinary, in the sense of being catastrophic or necessarily the result of uncommon causes, and that severe storms, rough seas, and even fogs may be comprised in the perils of the seas.
The judgment is affirmed.
Dissenting Opinion
dissents, on the ground that the question whether the Monarch was lost by a peril of the sea was one of fact, and should have been submitted to the jury.