Charles Clarke & Co. v. Mannheim Ins. Co.

• Decision Date: 02 April 1919
• Docket Number: (No. 2583.)
• Citation: 210 S.W. 528
• Parties: CHARLES CLARKE & CO. v. MANNHEIM INS. CO.
• Court: Texas Supreme Court

210 S.W. 528

CHARLES CLARKE & CO. v. MANNHEIM INS. CO.

(No. 2583.)

Commission of Appeals of Texas, Section B.

April 2, 1919.

Error to Court of Civil Appeals of First Supreme Judicial District.

Action by Charles Clarke, doing business under the name of Charles Clarke & Co., against the Mannheim Insurance Company. Judgment was rendered for plaintiff, which was reversed and rendered for defendant by the Court of Appeals, 157 S. W. 291, and the plaintiff brings error. Judgment of the Court of Civil Appeals reversed, and judgment of the trial court affirmed.

James B. & Charles J. Stubbs, of Galveston, for plaintiff in error.

Wm. B. Lockhart and W. T. Armstrong, both of Galveston, for defendant in error.

McCLENDON, J.

The plaintiff, Charles Clarke, doing business under the name of Charles Clarke & Co., brought this suit against the defendant, Mannheim Insurance Company, upon a policy of marine insurance assuring the plaintiff against all damage, etc., during the life of the policy, occasioned to "the good tug called Seminole," while in "the Gulf waters of the United States between Key West, Florida, and the mouth of the Rio Grande Del Norto, both inclusive," "against the adventures and perils of the harbors, bays, sounds, seas, rivers and other waters as above named." The plaintiff recovered in the trial court, but this judgment was reversed and rendered by a majority of the Court of Civil Appeals (157 S. W. 291), that court holding that the damages sought to be recovered were not within the risk covered by the policy, in that they were not occasioned by "adventures and perils of the harbors, bays, sounds, seas, rivers and other waters." The main question for our determination and the one upon which writ of error was granted, is the correctness of this holding of the Court of Civil Appeals.

The theory upon which plaintiff sought recovery and upon which the jury were warranted, under the charge of the court, in returning a verdict for plaintiff, was that the loss to the vessel was occasioned in the following manner: The tug Seminole was engaged generally in towing barges loaded with ties between various Gulf ports. At the time of the accident complained of she was lightering lumber from Morgan City, La., which is a port situated 18 miles north of the mouth of the Atchafalaya river, to a schooner anchored in the Gulf some 40 miles distant from Morgan City. About 10:30 p. m. on the night of January 13, 1910, the tug arrived at Morgan City and tied up for the night alongside another boat, the Alarm. The latter was a stern wheeler, some 97 feet in length, and was moored against Market wharf, headed up stream. The Seminole was moored against the Alarm, headed down stream; its port side towards the port side of the Alarm. It was made fast to the Alarm by three ties or ropes.

While the evidence is not free from conflict, it is sufficient, we think, to warrant the conclusion that the free board of the Alarm was lower than the free board of the Seminole at the points of contact between the two vessels so that the deck or guard rail of the latter projected over the deck of the former. The Seminole was due to leave the port at 3 o'clock the following morning. The Seminole had originally been a coal burner, its bunkers being located on each side of the vessel, but later the vessel was converted into an oil burner, and these bunkers were converted into fresh water tanks for the purpose of supplying the boiler of the engine. These tanks were each about 18 feet long, with a mean width of 4½ feet, and extended from the bottom of the vessel up to the under side of the deck. The hull of the vessel formed the outer side of each tank. The height of the tanks was approximately 7 feet. These tanks were filled by means of a sea cock extending through the bottom of the tug, with cut-offs so arranged that either or both of the tanks could be filled by a gravity flow from the outside. About 11:30 p. m. on the night in question orders were given to fill the port tank. It was the custom to fill this tank first, on account of the fact that the machinery of the vessel was so placed that more weight was thrown to starboard. It was also in evidence that the starboard tank already had some water in it, but the port tank was empty. The orders were to fill the port tank to the same capacity as that of the starboard, and then to cut off the water entirely. At 12 o'clock midnight all the crew retired except one Taylor, who was left on duty as watchman, and who was instructed to close the sea cock when enough water had been admitted to the port tank. Shortly after 12 o'clock Taylor lay down with his head on a steam pipe, smoking a cigarette, and soon went to sleep. Later he waked up, lighted another cigarette, and again went to sleep. About 2 o'clock a. m. the crew were awakened by a sudden list of the Seminole to port, and upon awaking they found the water was rushing into the hold of the vessel over the port guard rail. The crew had barely sufficient time to get off of the Seminole onto the Alarm before the vessel sank, stern first, in 60 feet of water. The vessel was afterwards raised, and the damage claimed is the cost of raising and repair.

Plaintiff's theory was that the flow of the water into the port tank caused the vessel to list until its port guard rail rested and became hung on the deck of the Alarm; that the water continued to flow into the port tank until the weight on the port side became so great that the list of both vessels caused the Seminole to slide off of the Alarm with a sudden plunge, the momentum of which submerged the port guard rail and caused the water to flow over the port side of the vessel and thereby sink it. The evidence, we think, is sufficient to sustain this contention. The majority of the Court of Civil Appeals held that under this state of facts the injury to the vessel was not caused by an adventure or peril of the sea, but from the negligence of the watchman in going to sleep with the sea cock open admitting the water into the port tank.

The question here presented, namely, whether the loss occasioned to the tug came within the meaning of the terms of the policy, as being from a peril of the sea, is not free from difficulty. The courts of America and England have frequently had to consider what is a peril of the sea, as that term is used both in policies of marine insurance and in bills of lading and charter parties. But to quote from a well-considered note in Annotated Cases:

"Compared with the large number of cases in which the question has arisen whether a particular loss was caused by a peril of the sea, within the meaning of a policy of marine insurance, but few attempts have been made to define the term `perils of the sea' as used in this connection. It is undoubtedly true that the purpose of the policy of insurance against the perils of the sea is protection against contingencies and against possible dangers, and such a policy does not cover a loss for injury which must inevitably take place in the ordinary course of things." Ann. Cas. 1912D, 1038.

Without presuming to lay down any general definition of the term "peril of the sea," as applied to all circumstances that may arise, we think the following general principles may be deduced from the various decisions upon the subject: Any loss or injury is occasioned by a peril of the sea which has for its proximate cause the fortuitous action of the sea, operating either singly or in conjunction with other elements or causes, or is peculiar to transportation by vessels supported by the sea or its buoyancy, subject to the following well-defined limitations:

(1) Loss or damage occasioned by natural deterioration or decay, or by ordinary wear and tear of the vessel, are not within the term "perils of the sea."

(2) Whether expressed in the contract of insurance or carriage or not, there is an implied warranty that the vessel is seaworthy; that is, that she is so constructed, manned, supplied, equipped, and in such condition of repair as to be able reasonably to perform the service in which she is engaged; from which it follows that any loss proximately caused by unseaworthiness of the vessel at the time of leaving port is not a loss by peril of the sea.

(3) As a corollary to the general statement above, where the loss or damage is from causes independent of the sea or its action, or is not peculiar to navigation, it is not by a peril of the sea; in other words the peril must be one "of the sea" and not merely one occurring "on the sea."

(4) The co-operation of other causes will not prevent the loss or damage from being one by perils of the sea; and this is true even where the contributing causes are acts or omissions of the owner or his agent amounting to negligence, but not amounting to fraud or design.

These general principles are applied without distinction both to policies of marine insurance and to contracts of carriage, with the exception that a common carrier by water, equally with other common carriers, cannot, at least under the American decisions, contract against liability for its own or its agent's negligence, and when such negligence is a contributing cause of the loss or damage, liability is not defeated even though a peril of the sea is also a contributing cause. On the other hand, protection of marine insurance embraces, in the absence of a contrary stipulation, losses arising from such negligence, if contributed to by a peril insured against. Our investigation discloses that when the loss may be fairly attributable to a peril of the sea as one of its contributing causes, the authorities are uniform that negligence of the owner or his agent is not a proper subject of inquiry.

In the leading case of Waters v. Insurance Co., 11 Pet. 213, 9 L. Ed. 691, which was decided by the Supreme Court of the United States in 1837, Judge Story, speaking for the court, quotes from Lord Tentorden in Walker v. Maitland, 5 Barn. & Ald. 174:

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