FB Walker & Sons, Inc. v. Valentine

• Decision Date: 04 September 1970
• Docket Number: No. 27349.,27349.
• Citation: 1970 AMC 2261,431 F.2d 1235
• Parties: F. B. WALKER & SONS, INC., a Corporation, Plaintiff-Appellee, v. Roy Lindley VALENTINE and all Other Underwriters at Lloyd's Subscribing Policy of Insurance No. L 1547 and Andrew Weir Insurance Company Ltd., and all Other Institute of London Underwriters Companies Subscribing Policy of Insurance No. C2253, and the Hartford Insurance Group, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

1970 AMC 2261, 431 F.2d 1235 (1970)

F. B. WALKER & SONS, INC., a Corporation, Plaintiff-Appellee, v. Roy Lindley VALENTINE and all Other Underwriters at Lloyd's Subscribing Policy of Insurance No. L 1547 and Andrew Weir Insurance Company Ltd., and all Other Institute of London Underwriters Companies Subscribing Policy of Insurance No. C2253, and the Hartford Insurance Group, Defendants-Appellants.

No. 27349.

United States Court of Appeals, Fifth Circuit.

September 4, 1970.

E. S. Ned Nelson, Bryan & Gordon, Pascagoula, Miss., Brendan J. Connolly, Mendes & Mount, New York City, for appellants.

Vincent F. Kilborn, Kilborn, Darby & Kilborn, Mobile, Ala., Roland J. Mestayer, Jr., Ward, Mestayer & Knight, Pascagoula, Miss., for appellee.

Before JOHN R. BROWN, Chief Judge, JONES and CARSWELL,^* Circuit Judges.

JOHN R. BROWN, Chief Judge:

Lacking any of the romance of assailing thieves, rovers, pirates, barratry of master and/or crew as claims touching the adventures and perils which the Underwriters were contented to bear and take upon, Saskatchewan Government Insurance Office v. Spot Pack, Inc., 5 Cir., 1957, 242 F.2d 385, 1957 A.M.C. 655; Tropical Marine Products, Inc. v. Birmingham Fire Insurance Company of Pennsylvania, 5 Cir., 1957, 247 F.2d 116. 1957 A.M.C. 1946, and presenting nothing more beguiling than the Inchmaree Clause as the substantive basis of liability, this case covering the loss of the steel tub COBRA turns on the Watchman Clause¹ of American Institute Tug Form (Rev.1959). The District Court on a judge trial held the claim covered under Inchmaree Clause and the Watchman Provision had been complied with. Of the view that under maritime or Mississippi principles or an amphibious mixture of both, the Watchman Clause is valid and as a matter of uncontradicted evidence was not complied with we reverse.

The COBRA, a twin screw diesel powered steel tug sunk at her owner's wharf on the East bank of the East Pascagoula River² sometime between 8 p. m., October 17 and 6 a. m., October 18, 1965 at which time she was discovered sunk by Hudson, the watchman who had not watched her during the night. She was unmanned at the time, all of her threeman crew having left the tug upon making her secure to the wharf. The immediate cause of the sinking was excessive leakage of water through the rudder post stuffing box located in the aft compartment and the two main engine stuffing boxes located in the engine room. There was adequate proof that as a matter of good seamanship the rudder stuffing boxes located above the water line are not loosened during working operations. On the other hand the main engine stuffing boxes which are approximately 2 feet below the normal water line had to be loosened while the tug was operating to prevent the packing from burning out. As a part of this operation it was sketchily³ but adequately proved that it was the part of good seamanship to tighten up the main engine stuffing boxes, when the tug was moored. This was not done. Again although sketchily proved, the Court was entitled to conclude that this direct cause of the sinking was covered under the Inchmaree Clause.⁴

Because we do not make credibility choices by rejecting findings made by the Trial Judge⁵ we set out in some detail the sole testimony on the watchman problem all of which came from the highest responsible spokesman of the Assured. The watchman issue turned factually on the status, function, and responsibility of C. F. Hudson, then 70 years of age and deceased at the time of trial. He had a number of titles including watchman but whether he watched as a watchman or what he watched as a watchman, was something else again.

The Assured's brief characterizes Hudson's role along these lines. Hudson was in full charge of the tugs. He was night superintendent, dispatched and directed the tugs, was general custodian and watchman and timekeeper and "the man in general on the yard" who "directed traffic there." Hudson at the time was around seventy years of age, in good health and an experienced former boat captain and had been with Assured some three years. Hudson would make rounds. While he could sleep in his office he was normally awake all night. He had no clock to punch nor any certain rounds to make, though he had general watching duties and clocked in crews. Hudson did not have particular instructions to go, or not, on any of the vessels in any regular fashion during the night, nor did he have a specific duty of going on various tugs at night since he was "a little old for that" and would not have been expected to go aboard the COBRA unless, of course, there was a fire or something he observed from the outside. There were pumps available in the area where the COBRA was docked, adequate for use on boats sinking, and which Hudson knew how to use had he observed a vessel sinking. Walker could not say of his own knowledge whether Hudson had or had not made periodic checks of this particular vessel or any of the other tugs the night the COBRA sank. Walker knew Hudson had been on tugs but was not specifically required by Assured to go aboard tugs.

Paraphrasing the brief of Underwriters, Hudson's role could be pictured in this way.

The sinking was discovered by Hudson, who was employed by Assured as a night or weekend superintendent, general dispatcher, timekeeper and general custodian, but it was not his duty to go aboard the boats nor to inspect the bilges. Hudson, since deceased, was then 70 years old. He had been employed by Assured for three years and was considered too old to go aboard the vessels. Under Assured's normal procedure the vessels were not checked between the time they were moored at the dock on completion of the day's operation, and 8:00 a. m. the following morning when the next crew came on duty. Supporting this summary the brief pinpoints specific testimony. On direct examination Walker testified that Hudson, since deceased, was the "watchman" or "night superintendent" or "weekend superintendent" or "dispatcher" or "timekeeper" or "man in general" or "general custodian" or "whatever you might want to call him." On cross-examination, Walker testified that Hudson was not "instructed" or "expected" or "required" or "ordered" to go on board the COBRA or any of the vessels at the yard in any regular fashion during the night. Further, Hudson did not make a regular periodic check on the COBRA, or any of the vessels at the yard. Hudson was not given orders to do so. It was not a regular custom of Hudson to make such checks. Walker also reaffirmed his pre-trial deposition testimony that Hudson's duties did not include going on the COBRA or any of the vessels at night because "he was a little too old for that." In response to a direct question asked by the Trial Judge, Walker answered that it was not Hudson's duty to make checks on the function of the stuffing boxes, etc., for these vessels.

No matter how stated, no matter how favorably viewed from the standpoint of Assured in support of the degree, there was no watchman who was given the duty to make careful examination of the tug throughout including inspection of the bilges. Since Assured had not charged the so-called watchman with the duty of making careful examination aboard the vessel throughout her reaches, it is equally plain that no instruction was given with respect to what would or would not be "reasonable intervals". That brings us face to face with the validity, construction and application of the Watchman Clause (note 1, supra) under appropriate legal standards. Before getting to that it bears emphasis that the record — again from the mouth of the highest executive — compels the finding that as an operational, functional fact an inspection of the engine spaces and particularly the bilges would at some stage prior to the sinking have revealed the presence of excess water.⁶

At the outset, we think the efforts of Assured to create ambiguities in the Watchman Clause fails. As a part of a marine insurance policy which characteristically bears the marks of a "palimpsest text", Calmar Steamship Corp. v. Scott, 1953, 345 U.S. 427, 73 S.Ct. 739, 97 L.Ed. 1125, 1953 A.M.C. 952, this clause is stated with remarkable simplicity.

The obligation, whether a warranty, representation, promise, or what, is conditioned, of course, on the vessel's being "tied up or moored". We read this to mean that the watchman is required when the vessel is tied up or moored and the crew (or a significant part of the crew) is not aboard. Perhaps literally the Clause would apply whenever the vessel is simply "tied up or moored" as a physical proposition. But the function of the watchman is stated first in broad terms of one being "in charge of" the vessel. It would be incongruous for underwriters to demand that with Master, engineers and full crew above and below deck on board, the custody and control of the vessel would have to be surrendered for that period of time to a "watchman". There is no trouble about other provisions. At most, depending on the severity of the burden of proof, these present primarily factual questions for evaluation by the trier related to compliance such as instructions, if any, given to the watchman as a clear delineation of his "duty", what constitutes a "careful examination", what is "throughout the vessel", or what are "reasonable intervals", and the like.

In like vein no real problem on whether it is Mississippi or federal maritime law which controls is created under Wilburn Boat Co. v. Fireman's Fund Insurance Co., 1955, 348 U.S. 310, 75 S.Ct. 368, 99 L.Ed. 337, 1955 A.M.C. 467, or our post-remand decision, Fireman's Fund Insurance Co. v. Wilburn Boat Company, 5 Cir., 1962, 300 F.2d 631, 647 note 12, limiting application of State law marine insurance cases to those in which entrenched "federal precedent is lacking". See Purofied Down Products Corp. v. Travelers Fire Insurance Company, 2 Cir., 1960, 278 F.2d 439, 441 note 1; Southern Farm...