Fairgrieve v. Marine Ins. Co. of London, 1,144.

• Decision Date: 10 April 1899
• Docket Number: 1,144.
• Parties: FAIRGRIEVE et al. v. MARINE INS. CO. OF LONDON.
• Court: U.S. Court of Appeals — Eighth Circuit

94 F. 686

FAIRGRIEVE et al. v. MARINE INS. CO. OF LONDON.

No. 1,144.

United States Court of Appeals, Eighth Circuit.

April 10, 1899

Where a marine insurance company has paid the full value of an injury to a vessel by collision caused by the fault of another vessel, so that there are no other claimants entitled to sue for the tort, it is subrogated to the right of action of the insured, and may maintain a suit against the offending vessel in its own name; but, when the value of the property destroyed exceeds the insurance money paid, the suit must be brought in the name of the insured, who may recover for the entire loss, as trustee for the insurance company as to the amount it has paid, and in his own right as to the remainder.

The Marine Insurance Company, Limited, of London, England, the appellee, libeled the Canadian steamer Arabian, in the Fifth division of the United States district court for the district of Minnesota. The libel alleged, in substance, that the insurance company issued a policy of insurance on the Canadian schooner barge Minnedosa; that, as the Minnedosa was going down the Welland Canal, the Arabian was going up the canal, was was so negligently managed that she inflicted on the Minnedosa damages to the extent of $15,000 and more; that the policy contained a clause by the terms of which, in the event of loss or damage paid by the insurance company to the owners, the claim of the insured against any third party liable for the damage was assigned, to the extent of the amount paid, to the insurance company; and that, of the $15,000 and upwards of damage, the libelant had paid to the owners $8,051.20, and so by the terms of the policy, and because of such payment, became subrogated and entitled to sue in its own name for that part of the damages which libelant had paid. Before answering the libel, the claimants J. B. and Hugh Fairgrieve, the appellants, citizens of the dominion of Canada, made protest and application to the district court to decline to entertain jurisdiction, because all the parties were British subjects; the subject-matter the locality of the tort, and the parties being foreign to this country, and all citizens of the same foreign jurisdiction in which the tort occurred and the property belonged. The Arabian being within the jurisdiction of the court, this application was denied, and thereupon the appellants filed their claim and answer. Article 10 of the libel reads: 'Tenth. That, under the terms of said policy of insurance, and because of the payment of said sum of $8,051.20 to the said Montreal Transportation Company on account of said loss, the libelant became subrogated to the rights and claim of said Montreal Transportation Company against said steamer Arabian, and became thereby authorized and empowered to file this libel against the said steamer. ' The answer to this article of the libel is as follows '(9) Your respondents deny the allegations of article tenth of the libel, and expressly deny the right, either by the terms of the contract or otherwise, of the libellant to file said libel in its own name against the said steamer Arabian. (10) Your respondents deny that by reason of the premises, by reason of the allegations in the libel, or for any reason, the libelant is entitled to recover and receive of the said steamer Arabian the sum of eight thousand fifty-one and 20/100 dollars, with interest, or any sum whatever, or to prosecute this action therefor in the manner and form as it attempts to do, and admits that the respondents have refused, and do refuse, to pay that sum or any part thereof.'

Harvey D. Goulder (Searle & Spencer, on the brief), for appellants.

C. E. Kremer, for appellee.

Before CALDWELL, SANBORN and THAYER, Circuit Judges.

CALDWELL Circuit Judge (after stating the facts as...