Compania De Navegacion, Interior v. Fireman Fund Ins Co Same v. Globe Rutgers Fire Ins Co Same v. Northwestern Fire Marine Ins Co Same v. Hartford Fire Ins Co Same v. National Liberty Ins Co Same v. Aetna Ins Co Same v. Western Assur Co Same v. Liverpool London Globe Ins Co Same v. Springfield Fire Marine Ins Co Same v. Franklin Fire Ins Co Same v. Phoenix Ins Co
| Citation | 48 S.Ct. 459,72 L.Ed. 787,1928 A.M.C. 923,277 U.S. 66 |
| Decision Date | 14 May 1928 |
| Docket Number | No. 514,No. 516,No. 515,No. 512,No. 517,No. 510,No. 513,No. 511,No. 519,No. 518,No. 520,510,511,512,513,514,515,516,517,518,519,520 |
| Parties | COMPANIA DE NAVEGACION, INTERIOR, S. A., v. FIREMAN'S FUND INS. CO. SAME v. GLOBE & RUTGERS FIRE INS. CO. SAME v. NORTHWESTERN FIRE & MARINE INS. CO. SAME v. HARTFORD FIRE INS. CO. SAME v. NATIONAL LIBERTY INS. CO. SAME v. AETNA INS. CO. SAME v. WESTERN ASSUR. CO. SAME v. LIVERPOOL & LONDON & GLOBE INS. CO., Limited. SAME v. SPRINGFIELD FIRE & MARINE INS. CO. SAME v. FRANKLIN FIRE INS. CO. SAME v. PHOENIX INS. CO |
| Court | United States Supreme Court |
Mr. John D. Grace, of New Orleans, La., for petitioner.
Mr. T. Catesby Jones, of New York City, for respondents.
[Argument of Counsel from pages 67-69 intentionally omitted] Mr. Chief Justice TAFT delivered the opinion of the Court.
These are eleven libels filed in the District Court of the United States for the Eastern District of Louisiana by a Mexican corporation known as the Compania de Navegacion, against as many different insurance companies, English and American, on eleven separate policies, insuring the tug Wash Gray in favor of the libelant as owner in different sums aggregating $85,000, and covering a voyage of the tug while in tow from Tampico, Mexico, to Galveston, Tex.
The tug was designed for inland waters. She was 87 1/2 feet long, with 19 feet beam, 9 feet depth of hold, and was of 105 tons. She was insured specially for this sea voyage, to be towed, as agreed with the insuring companies, by the Freeport Sulphur No. 1, a vessel engaged in regular trade on the Gulf of Mexico, and measuring 309 feet in length, 45 feet beam, with 22 1/2 feet depth, and of approximately 3,000 tons displacement.
When application was made for insurance, the underwriters required an inspection for seaworthiness, general fitness, and towing arrangements for that voyage. For that purpose two well-known marine surveyors, representing the various underwriters, made a thorough, critical inspection, followed by recommendations for preparations for the voyage, including certain overhauling, particularly of her towing bitts and decking, and for the planking up of doors, ports, and other openings. They reported in writing to the underwriters that the requirements had been complied with, and certified her seaworthiness and her fitness for the particular voyage. Because of the extrahazardous risk involved in the transit of this small inland vessel in tow at sea, the premiums were much increased by the underwriters. They varied, in the different policies, between 1 1/2 to 2 1/8 per cent., or from six to more than eight times the usual rate for a tow of the ordinary size and power to resist the sea. The voyage contemplated was first to Freeport, Tex., a distance of some 420 miles, a trip taking some 45 or 50 hours. From there she was to go to Galveston by another towing vessel, also to be satisfactory to the underwriters. The weather from Tampico was fair, and the sea calm. She followed nicely, handled well, and continued in tow through the first night and through the next day, making some 9 miles per hour with no straining or difficulty. Ordinarily, under her own power, she was good for from 10 to 12 miles per hour. During the second evening came a fresh to strong northwesterly breeze. Later the weather grew squally, until about 8 o'clock the wind reached a velocity of 25 miles an hour, with occasional puffs or gusts. Because of these and a cross current and swell, the sea grew choppy, with waves running up 4 to 5 feet from trough to crest, and sufficient to break over her head. The rough weather and the choppy seas out a strain on the vessel. As required by contract, she had up all steam necessary to work her pumps. The mate was sent below, and in a few minutes reported to the captain that the forward bitts had worked loose, that her seams were opening, and she was taking water rapidly. The pounding and straining continued until she made more water than her pumps could discharge. She was then about 100 miles from Freeport, Tex., and had completed three-fourths of the voyage to that point. The Wash Gray's captain signaled to the towing ship to stop. The water in the tug had rolled forward, thus bringing her head down. The tow lines were then cut. This brought her head up, and she righted herself. The larger vessel stood by. The captain of the Wash Gray notified the towing captain that the tug could stand no more pulling. Shortly thereafter the captain and crew of the tug were taken aboard the ship for safety. The latter then stood by until daylight, when the master sent his engineer, mate, and some six men on board the tug to attempt to save her. They found no water in the boiler for steam. They attempted by a hose to pump it in, but the leaking sea water put out the fire. The vessels then proceeded slowly at one mile per hour until half past 10, when the tug began to sink slowly, and went down at half past 11.
The District Judge found for the owner of the Wash Gray on all the policies. The insurance companies appealed to the Fifth Circuit Court of Appeals, which, without objecting to the facts as found by the District Court, reversed the case, with directions to dismiss the libels. 19 F.(2d) 493, 496.
Counsel for the insurance companies seek to sustain the judgment of the Circuit Court of Appeals on four grounds. They say, first, that the insurance companies were released from liability because there was not disclosed to them before the voyage a contract of towage, a term of which was material to the risk and was concealed, and the policies were thus avoided. The towage contract provided as follows:
All the policies had attached to them by rider and rubber stamp a clause like the following:
'Any agreement, contract or act, past or future, positive or implied, by the insured whereby any right of recovery of the insured against any vessel, person or corporation is released, decreased, transferred or lost, which would, on acceptance of abandonment, or payment of loss by this company, belong to this company but for such agreement, contract or act, shall render this policy null and void as to the amount of any such loss or damage, but the company's right to retain or recover the full premium shall not be affected.'
We do not think that the towing contract has the effect claimed for it by the companies. It did not release the Freeport from any loss or damage to the Wash Gray due to the negligence of the master or crew of the towing vessel; and for a loss thus caused the companies would be subrogated to the claim of the owner of the Wash Gray.
The rule laid down by this court in The Steamer Syracuse, 12 Wall. 167, 171 (20 L. Ed. 382), covers the point. That was a libel by the owner of a canal boat agaisnt the steamer Syracuse for negligence in towing the canal boat and running her into a vesselat anchor in the harbor of New York. The claim was made that there had been a special agreement between the canal boat and the steamboat by which the canal boat was being towed at her own risk. Upon this point the court said:
In view of this state of the law, the towing contract here shown was not a fact material to the risk, a concealment of which from the underwriters would injure them or avoid the policy.
The second objection is that the tug was negligently towed at too great a speed, proximately causing the loss. There is really very little evidence to sustain the claim that there was any negligence on the part of the towing vessel or her master or her crew. The trial court specifically found that the towing was well done, that 9 miles an hour was not too fast a speed to be maintained, but that on the contrary the maintenance of such speed was necessary in order to prevent the towed vessel from turning over or careening, and there is no finding to the contrary by the Court of Appeals.
The third objection is that the tug was not seaworthy, and therefore the risk never attached. The finding by the trial court distinctly negatives any such claim. It said:
...
To continue reading
Request your trial
-
Bisso v. Inland Waterways Corporation
...this Court again, in 1928, considered the effect of a contract claimed to exempt a towboat from its negligence. The Wash Gray, 277 U.S. 66, 48 S.Ct. 459, 460, 72 L.Ed. 787.6 The contract involved provided that the towboat should not be "responsible in any way for loss or damage" to the Wash......
-
Pennsylvania Railroad Co. v. Chesapeake & Ohio R. Co.
...... — as we think we should — that the same principles of statutory construction derived from ... to one who breaks jail when the prison is on fire, for "he is not to be hanged because he would not ...Franklin Fire Ins. Co. v. Chesapeake & Ohio Ry. Co., 6 ...167, 20 L. Ed. 382; and Compania de Navegacion Interior, S. A. v. Fireman's Fund ......
-
Hall-Scott Motor Car Co. v. Universal Ins. Co., 9769.
...by the party of the second part." 3 F.Supp. 268. The judge said that the law had been so firmly established in the Second Circuit that the Navegacion case, Compania de Navegacion v. Phoenix Ins. Co., 277 U.S. 66, 48 S.Ct. 459, 72 L.Ed. 787, should not be held to change the rule. In the Feen......
-
United States v. Norfolk-Berkley Bridge Corporation
...decide which rule should prevail, for it has recently been decided by the Supreme Court in Compania de Navegacion v. Firemen's Fund Ins. Co. (The Wash Gray) 277 U. S. 66, 48 S. Ct. 459, 72 L. Ed. 787, that a towing contract, in all substantial respects similar to that between the parties in......