Carter Tug Service, Inc. v. Home Insurance Company, P-3119.

• Decision Date: 16 June 1971
• Docket Number: No. P-3119.,P-3119.
• Citation: 345 F. Supp. 1193,1972 AMC 498
• Parties: CARTER TUG SERVICE, INC., a Delaware corporation, Plaintiff, v. The HOME INSURANCE COMPANY, a corporation, Defendant.
• Court: U.S. District Court — Southern District of Illinois

345 F. Supp. 1193

1972 AMC 498

CARTER TUG SERVICE, INC., a Delaware corporation, Plaintiff, v. The HOME INSURANCE COMPANY, a corporation, Defendant.

No. P-3119.

United States District Court, S. D. Illinois, N. D.

June 16, 1971.

Robert D. Barnes of McBride, Baker, Wienke & Schlosser, Chicago, Ill., for plaintiff.

William F. Voelker, Jr., of Heyl, Royster, Voelker & Allen, Peoria, Ill., for defendant.

DECISION AND ORDER

ROBERT D. MORGAN, District Judge.

The plaintiff in this suit in admiralty seeks to recover upon a marine hull insurance policy issued by defendant. Plaintiff claims this policy covered damage sustained as a result of the sinking of plaintiff's Motor Vessel "Christine Marie" on February 17, 1969.

The parties have stipulated that in the event of a determination that plaintiff is entitled to recover under the policy that judgment may be entered herein in favor of plaintiff and against the defendant in the sum of $19,000, exclusive of interest and costs, for loss and damage to the Motor Vessel "Christine Marie" (such loss being in the total amount of $21,500, less the deductible average applicable to said vessel under said policy in the amount of $2,500), and that in the event plaintiff is determined to be entitled to prejudgment interest on such sum or any part thereof, interest may be awarded at the rate of six percent (6%) per annum as follows:

1. On the sum of $10,500 for the period from July 1, 1969 to the date on which judgment is entered; and

2. On the additional sum of $8,500 for the period from July 1, 1970 to the date on which judgment is entered.

The issues under the policy are whether the loss to the Motor Vessel "Christine Marie" was occasioned and proximately caused by a peril or perils of the water of the Illinois River between Mile 130 and Mile 170 thereof, or by any one or more of the other perils or risks insured against under the policy, or whether such loss resulted from an unseaworthy condition of said vessel, a breach of any warranty of seaworthiness, or the want of due diligence by her owners or managers.

Trial was held on April 27 and 28, 1971. The court, after considering the pleadings, evidence, exhibits, stipulations, briefs and proposals of the parties, now makes and files herein its findings of fact and conclusions of law, separately stated.

FINDINGS OF FACT

1. At all times material hereto, plaintiff was the owner and operator of the Motor Vessel "Christine Marie," a vessel of the United States, Official Number 502347.

2. At all times material hereto, plaintiff was a corporation incorporated under the laws of the State of Delaware, with its principal place of business in Peoria, Illinois, and was duly authorized to transact business in the State of Illinois.

3. At all times material hereto, defendant, The Home Insurance Company, was a corporation having its principal place of business in the State of New York and an office and place of business in Peoria, Illinois.

4. The Motor Vessel "Christine Marie" was built in the year 1965 and was put into service in 1965. She was a steel diesel towboat having a length of 56 feet.

5. On or about August 22, 1968, defendant, for valuable consideration, issued to plaintiff its hull policy of marine insurance No. MH496443, a copy of which is attached to the complaint as Exhibit "A," and thereby did insure plaintiff upon said vessel "Christine Marie" for the period commencing September 24, 1968, at noon, Central Standard Time, and ending September 24, 1969, at noon, Central Standard Time, in the amount of $75,000, the amount of her agreed value as set forth in said hull policy.

6. In and by said hull policy of marine insurance, defendant agreed to insure plaintiff against loss of or damage to said vessel "Christine Marie," caused by or resulting from perils of the waters of the Illinois River between Mile 130 and Mile 170 thereof, by a "perils" clause, which is as follows:

"Touching the adventures and perils which this Company is contented to bear and take upon itself, they are of the waters named herein, fire, lightening, earthquake, assailing thieves, jettisons, barratry of the master and mariners and all other like perils that shall come to the hurt, detriment or damage of the vessel named herein."

7. The policy also contains the so-called "Inchmaree" clause, which is as follows:

"This insurance also covers loss of or damage to the vessel named herein directly caused by:

Accidents in loading, discharging or handling cargo, or in bunkering;

Accidents in going on or off, or while on drydocks, graving docks, ways, marine railways, gridirons or pontoons Breakdown of motor generators or other electrical machinery and electrical connections thereto, bursting of boilers, breakage of shafts, or any latent defect in the machinery or hull (excluding the cost and expense of replacing or repairing the defective part);

Contact with aircraft, rockets or similar missiles, or with any land conveyance;

Negligence of charterers and/or repairers, provided such charterers and/or repairers are not assured(s) hereunder;

Negligence of master, mariners, engineers or pilots; provided such loss or damage has not resulted from want of due diligence by the assured, the owners or managers of the vessel, or any of them."

8. The vessel "Christine Marie" foundered and sank in the early morning hours on February 17, 1969 at about Mile 152.2 of the waters of the Illinois River.

9. On February 16 and 17, 1969, prior to her sinking, the vessel "Christine Marie" was equipped with at least two electrically operated bilge pumps, one being located in the port bilge in the engine room and the other being located in the starboard bilge in the engine room. A discharge hose of each pump was connected to a steel elbow affixed to each side, respectively, of the "Christine Marie" so as to discharge water through openings in her hull. The "Christine Marie" was also equipped with a portable electrical transfer pump which was smaller in size than her bilge pumps and which was used primarily for the transfer of fuel but which on occasion was used by the crew in pumping and discharging water from the bilges.

10. Check valves were first installed in the bilge discharge systems of the "Christine Marie" in the spring of 1968.

11. During the period from January 1, 1966 through February of 1968, the "Christine Marie" was operated and navigated on the waters of the Illinois River on or during a total of over 550 different days without check valves in her bilge discharge systems. During this period she was operated and navigated to and from the points and places on the Illinois River and performed the towage and other services set forth in her daily logs for such period, which were all received in evidence.

12. The function of the check valves used at times thereafter on the "Christine Marie" was to permit water to be discharged through the bilge discharge hoses and lines and the bilge discharge openings in the hull of the vessel but to prevent water from entering the vessel through such openings, lines and hoses.

13. In February of 1969, the normal freeboard of the "Christine Marie," fully loaded, was about twenty-four inches. When her freeboard was about twenty-four inches, the bilge discharge opening in her hull of her port bilge discharge system was approximately seven (7) inches above the water level of the river.

14. The M/V "Christine Marie" was taken out of service on or about January 18, 1969, and was out of service until approximately 9:30 p. m. on February 13, 1969. During this period of time she was in drydock of The Ohio River Company, at Kingston Mines, Illinois.

15. Before the M/V "Christine Marie" was put back into service on February 13, 1969, she was checked by plaintiff's president, Mr. William R. Martyn, for the purpose of determining that she was in good operating condition. Mr. Martyn did not make any inspection of the bilge discharge lines of the M/V "Christine Marie" at this time and he testified that he did not think he was in the engine room of the "Christine Marie" at any time during this inspection.

16. The "Christine Marie" was returned to service at about 9:30 p. m. on February 13, 1969, and thereafter, prior to her sinking on February 17, 1969, was based in Pekin, Illinois.

17. From about 9:30 p. m. on Thursday, February 13, 1969 until about 9:00 a. m. on Friday, February 14, 1969, the M/V "Christine Marie" was operated and navigated to and from points and places on the Illinois River in the vicinity of Pekin, Illinois, and used to perform towage and other services which involved at least seven different normal tasks. During this period her crew consisted of Philip S. Knowles (pilot) and Larry D. Petit (deckhand).

18. From about 9:00 a. m. on Friday, February 14, 1969 until about 9:00 p. m. on Friday, February 14, 1969, the M/V "Christine Marie" was operated and navigated to and from points and places on the Illinois River in the vicinity of Pekin, Illinois, and used to perform towage and other services which involved several different normal operations. During this period her crew consisted of Paul Vaughn (pilot) and Donald L. Greenhalgh (deckhand).

19. From about 9:00 p. m. on Friday, February 14, 1969 until about 9:20 a. m. on Saturday, February 15, 1969, the M/V "Christine Marie" was operated and navigated to and from points and places on the Illinois River in the vicinity of Pekin, Illinois, and used to perform towage and other services which involved several different normal operations. During this period her crew consisted of Philip S. Knowles (pilot) and Larry D. Petit (deckhand).

20. From about 9:20 a. m. on Saturday, February 15, 1969 until about 9:00 p. m. on Saturday, February 15, 1969, the M/V "Christine Marie" was operated and navigated to and from points and places on the Illinois River in the vicinity of Pekin, Illinois, and used to perform towage and other services which involved several different normal...