Home Ins. Co. of New York v. MERCHANTS'TRANSP. CO.
| Decision Date | 29 May 1926 |
| Docket Number | No. 5323.,5323. |
| Citation | 12 F.2d 931 |
| Parties | HOME INS. CO. OF NEW YORK v. MERCHANTS' TRANSP. CO. |
| Court | U.S. District Court — Western District of Washington |
Bogle & Bogle, of Seattle, Wash., for libelant.
Ellis, Fletcher & Evans, of Tacoma, Wash., for respondent.
Respondent cites United Transportation & Lighterage Co. v. New York & Baltimore Transp. Line, 185 F. 386, 389, 391, 107 C. C. A. 442; The Richard Winslow (D. C.) 67 F. 259; Same on appeal, 71 F. 427, 18 C. C. A. 344; Pacific Coast S. S. Co. v. Ferguson, 76 F. 993, 22 C. C. A. 671; Marquardt v. French (D. C.) 53 F. 603; City of Clarksville (D. C.) 94 F. 201; 1 Benedict, Admiralty (5th Ed.) § 62, p. 82; Williams v. Providence Washington Ins. Co. (D. C.) 56 F. 159; Higgins & Co. v. Anglo-Algerian S. S. Co. (D. C.) 242 F. 568-571; The Eclipse, 135 U. S. 599, 10 S. Ct. 873, 34 L. Ed. 269; The Union (D. C.) 20 F. 539; Fox et al. v. Patton (D. C.) 22 F. 746; Doolittle v. Knobeloch (D. C.) 39 F. 40; The Poznan (C. C. A.) 9 F. (2d) 838; Ramsey v. Allegre, 12 Wheat. 611, 6 L. Ed. 746; The New England Marine Ins. Co. v. Dunham, 11 Wall. 1, 20 L. Ed. 90; The Humboldt (D. C.) 86 F. 351; The Thomas P. Beal (D. C.) 298 F. 121; Israel et al. v. Moore, etc. (D. C.) 295 F. 919; Andersen & Co. v. Susquehanna S. S. Co. (D. C.) 275 F. 989; Virginia, etc., v. Chesapeake, etc. (C. C. A.) 279 F. 684; N. P. Ry. Co. v. Department Public Works, 125 Wash. 428, 217 P. 13; O.-W. R. & N. Co. v. W. T. & Rubber Co., 126 Wash. 565, 219 P. 9; Parker v. Lancaster, 84 Me. 512, 24 A. 952; Bend v. Hoyt, 13 Pet. 263, 10 L. Ed. 154; Cavers v. Home Tel. & Tel. Co., 117 Wash. 299, 201 P. 20; New York Life Ins. Co. v. Chittenden, 134 Iowa, 613, 112 N. W. 96, 11 L. R. A. (N. S.) 233, 120 Am. St. Rep. 444, 13 Ann. Cas. 408; Alton v. First National Bank, 157 Mass. 341, 32 N. E. 228, 18 L. R. A. 144, 34 Am. St. Rep. 285; Sears v. Grand Lodge, 163 N. Y. 374, 57 N. E. 618, 50 L. R. A. 204; Meyer v. Pacific Mail S. Co. (D. C.) 58 F. 923; The Ada, 250 F. 194, 162 C. C. A. 330; Aktieselskabet Fido v. Braziliero (C. C. A.) 283 F. 62; The Eclipse, 135 U. S. 599, 10 S. Ct. 873, 34 L. Ed. 269; 1 Cyc. 831; 2 R. C. L. p. 778 to 784.
Libelant cites 1 C. J. 1266, 1267; Insurance Co. v. Dunham, 11 Wall. 1, 20 L. Ed. 90; De Lovio v. Boit, 7 Fed. Cas. 418, No. 3,776; The John Francis (D. C.) 184 F. 746; Allanwilde Trans. Corp. v. Vacuum Oil Co., 248 U. S. 377, 39 S. Ct. 147, 63 L. Ed. 312, 3 A. L. R. 15; International Paper Co. v. The Gracie D. Chambers, 248 U. S. 387, 39 S. Ct. 149, 63 L. Ed. 318; Israel v. Moore (D. C.) 295 F. 919; Furness Shipping, etc., Co. v. Barber (C. C. A.) 6 F. (2d) 779; Distilleries Chemical Supply Co. v. Williams S. S. Co. (D. C.) 272 F. 275; Keyser v. Blue Star S. S. Co., 91 F. 267, 33 C. C. A. 496; Paterson v. Dakin (D. C.) 31 F. 682; Prentice v. United States (D. C.) 58 F. 702; The Volunteer, Fed. Cas. No. 16,991; Church v. Shelton, Fed. Cas. No. 2,714; The Oceano (D. C.) 148 F. 131; The Isle of Mull (C. C. A.) 278 F. 131; U. S. Shipping Board, etc., v. Banque, etc. (C. C. A.) 286 F. 918; Union Fish Co. v. Erickson, 235 F. 385, 148 C. C. A. 647; North Alaska Salmon Co. v. Larsen, 220 F. 93, 135 C. C. A. 661; The Dolphin, Fed. Cas. No. 3,973; 33 C. J. 4, § 710; 38 C. J. 1163, § 482; Phœnix Ins. Co. v. Parsons, 129 N. Y. 86, 29 N. E. 87; Reliance Mar. Ins. Co. v. Herbert, 3 App. Div. 593, 38 N. Y. S. 373; Scottish, etc., Assur. Co. v. Samuel, 1923 1 K. B. 348; The Lewis Luckenbach (C. C. A.) 7 F.(2d) 793, 1926 A. M. C. 28.
Libelant insurance company sues for the recovery of money paid by it to respondent upon two of its policies. The libel is excepted to for want of admiralty jurisdiction. It appears from the libel that one of the policies was upon the hull of a vessel; that the other was for marine risks for disbursements and/or earnings; that during the period covered, and within the limits of the policies, the vessel became a total loss; that incorrect proofs of loss were made, and the amount of the policies paid.
It is alleged that under the first policy there was an implied warranty that if the there was no warranty of seaworthiness, but vessel was sent to sea in an unseaworthy condition, with privity of the assured, the insurer would not be liable for loss attributable to unseaworthiness; that under the second policy there was an implied condition that the vessel would be seaworthy at the commencement of each voyage; that these provisions were breached, and the vessel was, with privity of the assured, sent to sea in an unseaworthy condition and lost; that proofs of loss were submitted to libelant by respondent, in which it was represented that the respondent had complied with all the provisions of the policies; and that libelant, in ignorance of the true facts and in ignorance of the misrepresentations made in the proofs, paid the losses.
There appear no cited cases directly upon the point in question, but it is reasonably clear that, because of the nature of the suit, there is no jurisdiction to try it in a court of admiralty. United Transp. & L. Co. v. New York & Baltimore T. Line, 185 F. 386, 388-390, 107 C. C. A. 442, and cases there cited; Ramsey v. Allegre, 12 Wheat. 611, 6 L. Ed. 746; Israel et al. v. Moore & McCormack Co. (D. C.) 295 F. 919; The Thomas P. Beal (D. C.) 298 F. 121; Meyer et al. v. Pacific Mail S. Co. (D. C.) 58 F. 923; The Ada, 250 F. 194, 162 C. C. A. 330; Fox et al. v. Patton et al. (D. C.) 22 F. 746; Higgins & Co. v. Anglo-Algerian S. S. Co. (D. C.) 242 F. 568-571; Williams v. Providence Washington Ins. Co. (D. C.) 56 F. 159.
The principle involved is the same as that considered by the court in Luckett v. Delpark, 46 S. Ct. 397, 70 L. Ed. ___, decided by the Supreme Court April 12, 1926, involving the question of whether that case arose under the patent laws, wherein the court followed the rule first announced in Wilson v. Sandford, 10 How. 99, 13 L. Ed. 344, and said:
"But when the patentee exercises his choice, and bases his action on the contract, and seeks remedies thereunder, he may not give the case a double aspect, so to speak, and make it a patent case conditioned on his securing equitable relief as to the contract."
So, in the present case, before any question of maritime law can arise or be considered, libelant must first establish that it parted with the money sought to be recovered relying upon misrepresentations made by respondent. This fact ousts the admiralty jurisdiction.
If it be conceded that the decision in Keyser v. Blue Star S. S. Co., 91 F. 267, 33 C. C. A. 496, is at variance with the conclusion reached, it will be noted that the court in that case, not without doubts, arrived at its decision; for the court says:
"The question it presents is not without difficulty, and many of the adjudged cases tend to support the appellant's contention; * * * while exact precedents may not exist which directly support the jurisdiction of this case, it seems to us that the analogies of the better considered of the American cases, and the manifest trend of decisions in this country, do support it."
But it is not clear that this decision is opposed to the conclusion which I have reached in the instant case; for in the Keyser Case the maritime contract involved was a charter party; that is, a contract between the vessel owners and the charterer. The recovery sought in the suit was for an overcharge made by the charterer for advances made by it to the captain in a port foreign to the ship and owners, and which the captain discharged by delivery to charterers of a draft upon the owners at 30 days, and which draft the charterers transferred (apparently before maturity) and...
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