Bluefields Fruit & S.S. Co. v. Western Assur. Co. of Toronto

• Decision Date: 12 May 1920
• Docket Number: 3423.
• Citation: 265 F. 221
• Parties: BLUEFIELDS FRUIT & S.S. CO. v. WESTERN ASSUR. CO. OF TORONTO.
• Court: U.S. Court of Appeals — Fifth Circuit

265 F. 221

BLUEFIELDS FRUIT & S.S. CO. v. WESTERN ASSUR. CO. OF TORONTO.

No. 3423.

United States Court of Appeals, Fifth Circuit.

May 12, 1920

Wm. C Dufour, George Janvier, and E. Howard McCaleb, all of New Orleans, La., for appellant.

Barry Wainwright, Thacher & Symmers, of New York City, and Denegre Leovy & Chaffe, of New Orleans, La. (John C. Prizer, of New York City, of counsel), for appellee.

Before WALKER, Circuit Judge, and CALL and HUTCHESON, District Judges.

WALKER Circuit Judge.

This was a libel in personam, filed by the appellant, Bluefields Fruit & Steamship Company, against the appellee, Western Assurance Company of Toronto, on a policy of marine insurance issued by the latter to the former, a copy of which was made an exhibit to the libel. The claim was for the alleged amount, with interest thereon, of the value of a cargo of bananas, charged to have been seriously damaged, with the result that it became a total loss, in the way disclosed by averments to the following effect:

On May 12, 1917, the bananas were on board craft or boats at Providence Landing, Nicaragua, awaiting shipment. On and prior to that date they were intended by the libelant to be loaded on the steamship Lisboa at Providence Landing, and orders to that effect had been given, and the bananas were in due transit by such craft or boats to the steamship mentioned, and would, on or about that date, have been loaded upon that steamship and transported by it thence to New Orleans, but for the breaking of four of the steamship's port propeller blades in consequence of striking a submerged obstruction while the vessel was maneuvering to take up a position for loading the bananas. At the time the accident occurred the craft or boats, with the bananas loaded on them for transshipment into the steamship, were in motion or transit from the station or landing place to the ship's side. By reason of the loss of the propeller blades the steamship was delayed, in that it could not properly and safely transport cargo from Providence Landing to New Orleans without being repaired. The repairs could not be made at Providence Landing, and by reason of the loss of the propeller blades the steamship was compelled to go to Colon, Canal Zone, for repairs, resulting in a delay of about 26 days. No other steamship was available to carry the bananas to destination. As a direct and necessary result of the delay so caused, the bananas were seriously damaged and became a total loss. The court sustained an exception to the libel on the ground that it does not state a cause of action.

The policy sued on was in part printed and in part typewritten; a printed form being used, to which a typewritten rider was attached. The body of the policy, after the formal heading, the first words of which were 'Ocean Cargo Open Policy,' begins as follows (the italics showing the words typewritten in blanks in the printed form):

'To Bluefield Fruit & Steamship Company

'On account of whom it may concern

'In case of loss to be paid to them or order

'Does make insurance, and cause them to be insured, at and from

'As per form attached

'On bananas and/or cocoanuts--

as per form attached.

'Laden or to be laden on board the good steamer or steamers

'Beginning the adventure upon the said goods and merchandise from and immediately following the loading thereof on board of the vessel or conveyance as aforesaid and so shall continue and endure until the said goods and merchandise shall be safely landed as aforesaid. And it shall and may be lawful for the said vessel, in her voyage, to proceed and sail to, touch and stay at, any ports or places, if thereunto obliged by stress of weather or other unavoidable accident, without prejudice to this insurance. The said goods and merchandise, hereby insured, are valued (premium included) at

'As per form attached

'Touching the adventures and perils which the said company is contented to bear and does take upon itself, they are, of the seas, lakes, rivers, canals, railroads, fire, jettisons, barratry. * * * '

The following are the provisions of the typewritten rider made a part of the policy which can have any bearing on the questions raised in the case-- the copied provisions being in the order shown below:

'On bananas and/or cocoanuts per steamer or steamers and connecting conveyances.'

'At and from ports and/or places in Central America to any port or ports in United States, direct or otherwise.'

'Free of particular average unless the vessel be stranded, sunk, burned, or in collision, in any, all or several of which events the insurers are liable for such loss by decay, injury or damage to the fruit as is occasioned thereby, or occurs during, or in consequence of delay resulting therefrom, insurers are also liable for such loss in consequence of delay resulting from any, all or several of the following causes, i.e., breakage of shaft, loss of blades from propeller, derangement or breakage of machinery, derangement or breakage of rudder and/or sternpost whether or not the vessel be stranded, sunk, burned, or in collision provided that in all cases the loss amount to 10 per cent. after deducting 5 per cent. for ordinary loss.

'Including all risk of craft or boats to and from the vessel and from the warehouse or factory, while in transit by railway, or any conveyance and while in warehouse and/or shed, or on wharf, or quay, awaiting shipment or transshipment, or lighterage, and all risk until safely delivered into the consignee's warehouse.'

'Each craft or lighter to be deemed a separate insurance.

'With liberty to tow and assist vessels in all situations and including all risks incidental to steam navigation, especially those arising from accidents to boilers and/or machinery.

'It is especially understood and agreed, however, that notwithstanding the foregoing the risk under this policy only commences at the port of shipment, no lighterage or craft risk from the interior being covered.'

The policy as a whole shows that the intention was to insure against risks to which the fruit mentioned would be exposed in a voyage from Central America to a port or ports of the United States, including specified risks before and after the fruit was on the vessel which carried it. The enterprise of an owner of bananas assembled at a port or place in Central America for shipment to a port or ports of the United States is subject to risks other than those which were insured against by the policy sued on. Among such other risks is that of not having or providing at the proper time and place a vessel ready to receive and carry the bananas. The happening of any one of an indefinite number of contingencies may result in a vessel not being available for the shipment of bananas so assembled in time to get them to a United States port before they are lost by decay. To say the least, nothing in the policy makes it plain that the insurer agreed to indemnify the owner against such risks. From the terms of the policy it is to be implied that it was assumed or presupposed by the parties that a vessel would be present at the proper time and place and ready to take on the bananas and undertake the contemplated carriage, and that there was an absence of any intention to cover risks on that score. Any part of the policy which, considered by itself, might be regarded as indicating that the risk of a happening having the effect of preventing a vessel being available to receive and undertake the carriage of the bananas at the proper time was intended to be insured against is to be considered in the light of the fact that...