Orient Mut Ins Co v. Adams

• Decision Date: 24 October 1887
• Citation: 123 U.S. 67,8 S.Ct. 68,31 L.Ed. 63
• Parties: ORIENT MUT. INS. CO. v. ADAMS and another
• Court: U.S. Supreme Court

8 S.Ct. 68

123 U.S. 67

31 L.Ed. 63

ORIENT MUT. INS. CO. v. ADAMS and another.

October 24, 1887.

James Lowndes, for plaintiff in error.

D. T. Watson, for defendants in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

This writ of error brings up for review a judgment against the Orient Mutual Insurance Company of New York, upon a policy whereby that company insured the defendants in error in the sum of $5,000 on the steamer Alice, of the agreed valuation of $27,000, against perils 'of the seas, lakes, rivers, canals, fires, and jettisons that should come to the damage of said vessel or any part thereof.' The policy provided, among other things, that the company should be free from all claim for loss or damage 'arising from or caused by * * * barratry, * * * or occasioned by the bursting of boilers, the collapsing of flues, explosion of gunpowder, the derangement or breaking the engine or machinery or any consequence resulting therefrom, unless the same be caused by unavoidable external violence;' that there should be 'no abandonment as for a total loss on account of said vessel grounding or being otherwise detained, or in consequence of any loss or damage, unless the injury sustained be equivalent to fifty per centum of the agreed value in this policy; that the aforesaid vessel is, and shall be at all times during the continuance of this policy, tight and sound, sufficiently found in tackle and appurtenance thereto, competently provided with masters, officers, and crew, and in all things and means for the safe employment thereof;' and that 'in no case whatever shall the assured have the right to abandon until it shall be ascertained that the recovery and repairs of said vessel are impracticable, nor sell the wreck, or any portion thereof, without the consent of the company.' The insured sued as for a total loss arising from one of the perils specified in the policy. The company pleaded non assumpsit and payment, with leave to give in evidence the matters set forth in its affidavit of defense, which was adopted as a special plea. Those matters will sufficiently appear from the facts which will now be stated.

According to the bill of exceptions, there was evidence in behalf of the plaintiffs tending to show that, without willfulness or design on the part of her captain, the vessel was carried, April 28, 1880,—before the expiration of the policy,—over the falls of the Ohio river, at Louisville, Kentucky, and sunk, receiving damage in a sum equal to 50 per cent. of her agreed value; and that on the eighteenth of May, 1880, it being apparently impracticable to float her off and repair her, the vessel was abandoned to the insurers as a total loss, and the sum due under the policy demanded.

The evidence introduced by the company tended to establish these facts: The master of the Alice was C. F. Adams, one of the assured, and a son of the other plaintiff. Before the sailing of the vessel he had the reputation of being a 'drinking' man, and of that fact his father was informed. On her arrival at Louisville, on the morning of April 28, 1880 the master gave the usual signal (which was transmitted to the engineer) that he had no present need of the engines. The joint of the mud-value was out of order, threatening damage to the freight, and making repairs necessary. The steam was thereupon blown off in order to make repairs. The captain, coming on board, saw that repairs were going on, and knew that the mud-valve connected with the boiler needed repairs. The work of repairing made in necessary to blow off steam. The captain subsequently went on deck, and, without making inquiry of the engineer as to the condition of the steam or receiving any notice from him that the steam was ready, tapped his bell at 8:30 A. M. as a signal to let go the boat. At that time there was not sufficient steam to propel the vessel. It is the custom of the river, for the master, before giving the order to let go, to inquire of the engineer as to the condition of the steam, and await his reply that steam is ready before giving the order to let go. At the time of the accident the vessel was in a position to be carried over the falls, if she was let go without steam on. Upon being let go she was carried by the current down the river and over the falls, and, striking a pier, was badly damaged; in consequence of which she sunk soon thereafter below the bridge in about eighteen feet of water. There was also evidence in behalf of the company, tending to show that the vessel was but slightly injured, and, in the spring of 1881, was floated and removed from the place at which she sunk, and put in the condition in which she was before sinking, for a sum little less than $6,000; that when she was raised the plaintiffs refused to pay the expense thereof; that after May 18, 1880, the plaintiffs sold her furniture and apparel without the company's consent, and that on or about the twenty-eighth of April, 1880, they put her into the possession of the Cincinnati Underwriters' Wrecking Company, which thereafter had the right of possession until the vessel was seized by the United States marshal under process, in December, 1880, upon maritime liens. To further maintain the issues on its behalf the defendant—the bill of exceptions states produced in evidence an ex- emplification of the record of a certain cause, entitled 'Cincinnati Underwriters' Company against The Steamer Alice,' etc., in the United States district court for the district of Kentucky, as tending to show that after the eighteenth May, 1880, the claimants, by the answers and petitions in that suit, claimed to be the owners of the vessel, her furniture and apparel; that the Alice was subject to maritime liens, in a considerable sum, existing on the eighteenth of May, 1880; that she was sold under a decree to satisfy the same, the plaintiffs receiving a part of the proceeds of sale; that the plaintiffs admitted that she was slightly damaged, and they had refused, after she was raised, to pay the expense of raising her. Thereupon the plaintiffs offered evidence tending to show that 'it was the custom of the river that the engineer should give notice to the captain before exhausting steam, and that it was not the custom for the captain to have notice from the engineer that steam was ready before giving the order to let go.' The plaintiffs, in further reply, offered to prove by the plaintiff C. F. Adams 'that the steamer, at the time of loss, was insured in seven companies for a total insurance of eighteen thousand dollars, and, after the notice of abandonment, six of them, representing an insurance of $13,000, settled with the insured, and, as part of the settlement, released to the latter all interest in the steamer as she lay; that, after the marshal's sale of the boat, the plaintiffs claimed to own the 13-18 of the proceeds of sale, and that when the claim for the entire proceeds was made it was, as to form, under the advice of counsel; but the plaintiffs did not intend thereby to waive the abandonment theretofore made, or to keep, as against the ...