Feinberg v. Insurance Company of North America
| Decision Date | 04 November 1958 |
| Docket Number | No. 5387.,5387. |
| Citation | 260 F.2d 523 |
| Parties | Morris FEINBERG, Treasurer, et al., Plaintiffs, Appellants, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant, Appellee, |
| Court | U.S. Court of Appeals — First Circuit |
Morris Michelson, Boston, Mass., for appellants.
William T. Conlan, Boston, Mass., with whom Norman B. Silk and Ely, Bartlett & Brown, Boston, Mass., on brief, for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
This appeal is from a judgment dismissing a complaint in an action brought in the court below under its diversity jurisdiction to recover under a policy of marine insurance for damage to the yacht Mariposa and its equipment. Trial was by the court without a jury.
The Mariposa was a luxurious twinscrew Chris-Craft cabin cruiser, 42 feet long with a beam of 13 feet and a draft of 3 feet. On the evening of June 6, 1957, she was left securely moored at the main dock of a marina in the Neponset River in Dorchester, Massachusetts. Where she lay she was in the range of a flood light mounted on a building of the marina and she was left at that particular place to discourage marauders from boarding her, there being no night watchman in attendance. An employee of the marina testified that he observed the yacht at her mooring, apparently undisturbed, about 10:30 that night when he drove by in his automobile.
At about 7:30 on the following morning the Mariposa was discovered some 90 feet away tied up in a different way at another float of the marina out of the range of the flood light and in a sinking condition with some 4 feet of water in her hull. Employees of the marina at once went to work, some with mechanical pumps and others with buckets, and when some of the water had been removed it was discovered that the sea cock or drain plug located in the bottom of the hull near the bow had been unscrewed and removed. In spite of diligent search, the plug has never been found. At the same time it was also discovered that, although there was no evidence of a forced entrance into the yacht, several items of personal property, such as cases of liquor, fishing tackle, guns and ammunition and a TV set had been removed. Smudges, finger marks and scuff marks on the river side of the hull indicated that this property had probably been carried away in a small boat positioned alongside.
The District Court found that during the night strangers moved the Mariposa from the float where she was left moored to the float in darkness some 90 feet away "solely to facilitate the removal of bulky personal property," that they entered by unlocking the cabin door with a skeleton key and removed the personal property in a small boat stationed alongside, and that afterward they removed and carried away the drain plug. The Court said that it did not believe scuttling the yacht was a mere afterthought, but that "contemplation of scuttling was part of the original plan" conceived by the strangers who during the night moved the boat, boarded her and took the items of personal property out of her.
The question as posed by the court below and presented to us on this appeal is whether moving the yacht to another dock 90 feet away in order to steal personal property on board and with the intention of scuttling her thereafter, the subsequent entry and larceny and the ultimate scuttling, come within the coverage of the insurance policy sued upon.
It is not contended that the policy covers scuttling, or vandalism, or larceny of personal property from the yacht, as such. Nor is it urged here, although it was in the court below, that the damage to the boat resulted from a "peril of the sea." It is not contended that the loss was caused by "assailing thieves," and certainly there is nothing to indicate barratry of the master and mariners. Of course, there is no suggestion of jettisons or of fire or lightning. Thus for present purposes the critical clause of the policy reads: "Touching the adventures and perils which this Company is content to bear, and does take upon itself, they are * * * theft of the entire Yacht * * and of all other like perils, losses and misfortunes, that have or shall come to the hurt, detriment or damage of said Yacht or any part thereof." The question therefore narrows to whether on the facts found there was a "theft of the entire Yacht" or whether she suffered a "like" peril, loss or misfortune within the meaning of the clause of the policy of insurance quoted above.
The District Court ruled, we think correctly, that the policy covered damage to part of the vessel and loss of its equipment only if caused by a peril specified in the policy. Thus, since the peril of theft is expressly limited to theft of the entire vessel, it follows that the theft of the personal property on board, and clearly likewise the damage to its hull, tackle, apparel, machinery, furniture etc. caused by the flooding of the hull, is not covered unless on the facts found there had been either a "theft" of the entire vessel as that word has been defined by the Supreme Judicial Court of the Commonwealth of Massachusetts or else that the yacht suffered a "like" peril, loss or misfortune.
We turn now to the Massachusetts decisions. Perhaps the Massachusetts case closest in point on its facts is Bloom v. Ohio Farmers' Ins. Co., 1926, 255 Mass. 528, 152 N.E. 345, on which the court below principally relied. The evidence in that case was that some unauthorized person took an automobile in Boston, drove it to Quincy, removed and carried away its spare tire, and then tried to dispose of the car by impelling it into an abandoned quarry in which there was sixty feet of water. The attempt at disposal, however, was not successful for the automobile came to rest on a rocky ledge at the water's edge from which it was recovered. On these facts the court held that the owner of the car was entitled to recover on a policy covering the "theft" of his car. The court said that the above facts "* * * would justify a finding of deliberate theft, a taking with the intent to deprive the owner permanently of his property for the pecuniary benefit of the taker." And then the court added: "It is none the less theft that...
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