Boston Ins. Co. v. City of New York
| Citation | 130 F.2d 156 |
| Decision Date | 08 July 1942 |
| Docket Number | No. 321.,321. |
| Parties | BOSTON INS. CO. v. CITY OF NEW YORK. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
George Seagrave Franklin and William C. Chanler, Corp. Counsel, both of New York City (Martin Faust, of New York City, of counsel), for appellant.
Macklin, Brown, Lenahan & Speer, of New York City (Leo F. Hanan, of New York City, of counsel), for appellee.
Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.
This appeal turns upon whether the libellant proved those allegations of its libel which were in issue. The first of these was its incorporation which the answer denied and which the libellant did not attempt to prove. Although the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, have not yet been extended to admiralty and we cannot therefore invoke Rule 9(a), the practice in admiralty is concededly extremely plastic and always has been so (E. I. Dupont de Nemours & Co. v. Vance, 19 How. 162, 15 L.Ed. 584) and it is legitimate to treat it as not immune to some of the changes in procedure elsewhere. Indeed, although the case did not involve the same facts, our decision in American Transportation Co. v. Swift & Co., 2 Cir., 24 F.2d 310, was as great a departure as is necessary here in order to hold, as we do, that if a respondent wishes to challenge the libellant's incorporation he must do more than merely deny any information about it. Upon that issue the judge was right not to require any proof, especially as the respondent appears not to have challenged the allegation on the trial.
Coming then to the other issues, the respondent expressly conceded that it had been "wholly at fault" for the loss of the barge which lifted the cargo (cargo loss as distinguished from hull damage being the subject matter of the suit at bar). Thus there remained no issues except whether the libellant had insured the loss of the Champion Coal Company and whether it had paid that loss; on which depended its right to sue in subrogation. Not only did the libellant offer only a carbon copy of the policy without attempting to account for its failure to produce the original, but it did not even identify the copy which it produced, or prove that an original had ever been executed. The copy itself was not signed, and the nearest approach to authentication of any of the accompanying papers was a request for insurance on behalf of the Champion Coal Company, purporting to be signed in the name of "E. T. Peterson," on a blank of "Carpinter & Baker's Agency." It nowhere...
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