Chicago Ins. Co. v. Graham & Morton Transp. Co.

• Decision Date: 23 April 1901
• Docket Number: 691
• Citation: 108 F. 271
• Parties: CHICAGO INS. CO. v. GRAHAM & MORTON TRANSP. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

108 F. 271

CHICAGO INS. CO. v. GRAHAM & MORTON TRANSP. CO.

No. 691

United States Court of Appeals, Seventh Circuit.

April 23, 1901

The Graham & Morton Transportation Company filed its libel in personam in the court below to recover a sum of money claimed to be due on a policy of marine insurance issued to it by the Chicago Insurance Company. The assured was engaged in the business of transporting and carrying by water, for hire passengers and freight between different ports and places on the Great Lakes and waters emptying into the seas, and on the 9th of December, 1897, took from the Chicago Insurance Company an open policy for the sum of $5,000, and a like policy for a like amount in another insurance company covering property shipped on the steamer City of Duluth, of which the libelant was the charterer. The policy was in the usual form, containing the ordinary 'sue and labor' clause, and provided, 'but no damage to be paid unless amounting to five per cent.' There was attached to the policy a rider as follows: 'by this policy of insurance on account of the Graham & Morton Transportation Company loss, if any, payable to assured. Do make and cause five thousand dollars ($5,000) to be insured from noon, December 9th, 1897, to noon of April 1st. 1898, on all grain, flour general merchandise etc., chipped on board the propeller of Duluth. * * * Warranted free from particular average under 5% each kind of goods and each bill of lading interest subject to separate average. Warranted to navigate Lake Michigan, principally between Milwaukee or Chicago and St. Joseph or Benton Harbor, during the life of this policy. * * * It is stipulated and agreed that, if any loss, shall occur under the policy, same shall be reduced by the amount of said loss, unless the amount of loss shall at once be reinstated, and premium paid thereon at the pro rata rate of 6 1/2% for the unexpired term of the policy. ' On January 26, 1898, the steamer City of Duluth departed the port of Chicago, bound for the port of St. Joseph, Mich., laden with a cargo of 29,000 bushels of corn, 2,000 sacks of flour, and general merchandise, consigned to ports on the eastern shore of Lake Michigan. On the evening of that day the vessel, in attempting to enter the port of St. Joseph, without fault of her own, stranded upon a bar at the mouth of the harbor, spring a leak, filled with water, and became a total loss, damaging a large part of the cargo, much of which, however, was saved in a damaged condition by the assistance of tugs, lighters, and additional aid. Two adjustments of loss were made, each party procuring one. There is an apparent discrepancy in the two adjustments with respect to the value of the corn,-- one stating it as $8,700; the other at $7,830. The value of the flour was $5,142.86; and of the miscellaneous cargo of merchandise, $4,344.29. The corn was a total loss. The flour was damaged in excess of 5 percent., and the damage to general merchandise was less than 5 per cent. The adjuster of the libelant made the total claim $12,219.48, to be paid one-half by each insurance company. The other adjuster made the total claim $10,467.34, and apportioned $3,022.25 to each insurance company, and $4,422.84 to owners uninsured. The different result in the two adjustments arises chiefly from the different theories upon which they are made,-- the one, that the insurance was in gross of an entire cargo; the other, that it was enumerated and distributed insurance on species. At the hearing the district court adopted the latter theory, and pronounced accordingly. A motion is made here to dismiss the appeal for the reason that an assignment of errors was not filed in the court below until the next stated term after the appeal was allowed, and that the order allowing the filing of the assignment of errors nunc pro tunc as of the date of the allowance of the appeal was unauthorized and void.

Charles E. Kremer, for appellant.

Robert Rae, for appellee.

Before WOODS, JENKINS, and GROSSCUP, circuit Judges.

JENKINS Circuit Judge, after the foregoing statement of the case, .

The motion to dismiss presents the question whether in an admiralty cause an assignment of errors is essential for the purpose of an appeal. It may not be denied that, prior to the organization of the circuit courts of appeals, upon appeal in an admiralty cause from the district to the circuit court no assignment of errors was necessary. The cause was there to be tried anew, as if no decree had been rendered; the appeal superseding and vacating the decree from which it was taken. The cause in the circuit court could be heard on new pleadings and further evidence. Yeaton v. U.S., 5 Cranch, 281, 3 L.Ed. 101; The Lucille, 19 Wall. 73, 22 L.Ed. 64; The Hesper, 122 U.S. 256, 7 Sup.Ct. 1177, 30 L.Ed 1175. A decree was entered in the circuit court, and enforced by that court without remand of the cause to the district court. The Louisville, 154 U.S. 659, 14 Sup.Ct. 1190, 25 L.Ed. 771. Indeed, rule 52 in admiralty expressly provided that 'no reason of appeal shall be filed or inserted in the transcript. ' Under the act creating the circuit courts of appeals, it has seemed to the writer that appeals in admiralty now come to this court, as formerly they went to the circuit court, to be heard here as formerly heard there, and, it may be, upon new pleadings and upon new evidence. Such he understands to be the ruling of this court in Gilchrist v. Insurance Co. (C.C.A.) 104 F. 566. He is, however, of opinion that, under section 10 of the act creating these appellate courts (31 C.C.A. xxxiii., 90 F. xxxiii.), it was not contemplated that an original decree should be entered here, but that the cause should be remanded to the district court for sentence and execution. The question, however, is one of practice only, and it is more desirable that the practice should be settled and uniform than that it should conform to any previous practice; and as my Brethren are of opinion that an assignment of errors is desirable, and to conform the practice to that circuit which has most to do with the admiralty, we hold that rule 11 (31 C.C.A. cxlvi., 90 F. cxlvi.) applies to admiralty as to all other cases, and that an assignment of errors is essential, and should be returned with the record, and that paragraph 6 of rule 14 (31 C.C.A. clviii., 90 F. clviii.) so far as by reference to rule 52 in admiralty it seems to be in conflict, must be disregarded. This, however, does not prevent the court from permitting new pleadings or new evidence in proper cases. We are also of opinion that no new decree should be entered here, but that, as in other appeals, the cause should be remanded to the court below. We understand this practice to be in substantial conformity with the rules of the Second circuit, adopted July 1, 1892, as amended October 5, 1892. Rule 10 (1 U.S.App. 717, 40 C.C.A. vi., 100 F. vi.). Our rule 11 reserves to the court the right to 'notice a plain error not assigned,' and in view of the doubt heretofore existing in this circuit with respect to the correct practice, we are not inclined in this case to disregard any...