Henjes v. Aetna Ins. Co., 73.

• Decision Date: 04 January 1943
• Docket Number: No. 73.,73.
• Citation: 132 F.2d 715
• Parties: HENJES v. ?TNA INS. CO. et al.
• Court: U.S. Court of Appeals — Second Circuit

132 F.2d 715 (1943)

HENJES v. ?TNA INS. CO. et al.

No. 73.

Circuit Court of Appeals, Second Circuit.

January 4, 1943.

Robert F. Donoghue, of New York City (Frank C. Mason and Benjamin Lewis, both of New York City, of counsel), for appellant.

Bigham, Englar, Jones & Houston, of New York City (John M. Aherne, of New York City, of counsel), for appellees.

Before L. HAND, CHASE, and FRANK, Circuit Judges.

CHASE, Circuit Judge.

This action was originally brought against the defendant insurance companies on a policy of marine insurance in the Supreme Court, County of Kings, New York. It was duly removed to the District Court for the Eastern District of New York and tried there to a jury. At the close of all the evidence the court directed a verdict for the defendants on the ground that the breach by the plaintiff of a promissory warranty in the policy had been proved and was a complete defense to the suit. This appeal is from the judgment entered on that verdict.

In March 1940, the defendants issued a time marine insurance policy to the plaintiff covering for one year his vessels named in an attached schedule against perils mentioned which included perils of the sea. During the next month the coverage of the policy was extended by an indorsement to include damage to the plaintiff up to the limit, and for the time, stated for the loss, destruction or injury to his tugboat "Edwin Duke" from the perils the original policy covered. The policy so issued contained a promissory warranty which applied to the "Edwin Duke" that confined her use and navigation to New York Harbor and nearby waters named but "* * * with privilege to operate in Great South Bay via Fire Island Inlet, including operation in the inlet subject to obtaining fair weather reports prior to clearing New York Harbor and warranted not in excess of one vessel in tow: * * *"

During the policy period the "Edwin Duke" sank under circumstances to be related and became a total loss; the plaintiff duly filed proof of claim; the defendants refused to recognize any liability under the policy and this suit was brought with the result above noted.

The "Edwin Duke" was a steel tugboat sixty-nine feet long having two hundred horse power from a Diesel engine. She was lost in the following way: After getting the required fair weather report she left New York Harbor on the evening of December 3, 1940, with one barge loaded with rock in tow for Fire Island Inlet. After passing the fairway buoy off Rockaway Point she became part of a tow made up of the five hundred horse power tug "Gerd Henjes," also owned by the plaintiff, which had been towing two rock laden barges and the plaintiff's two hundred and forty horse power tug "Helen Barbara" which had been towing another barge also loaded with rock. This combined tow with the "Gerd Henjes" in the lead followed in tandem by her barges, the "Edwin Duke" with its barge, and the "Helen Barbara" with its barge, proceeded without trouble to Fire Island Inlet where the barges were left. About a quarter past one in the afternoon of the next day, December 4, 1940, the three tugs left the Inlet bound west for the Coney Island seawall. They then were in a tow made up in tandem in charge of the captain of the "Gerd Henjes" which consisted of the "Edwin Duke" in the lead with a hawser to the bow of the "Helen Barbara" that had in turn a hawser from her stern to the bow of the "Gerd Henjes" which had four empty barges hanging in tandem on a hawser from her stern. When the tow left Fire Island Inlet the weather was clear and the sea calm. After it had gone westward at full speed for about three hours the weather changed. The wind came up from the southwest to reach a velocity around thirty miles an hour about five o'clock and the sea came up with it until by half past six the waves were running about twenty-five feet high. The flotilla kept on very slowly after this change in the weather.

Between six and seven o'clock the captain of the "Gerd Henjes" reported to the captain of the "Edwin Duke" by radio telephone that his hawser to the barges had parted and directed the "Edwin Duke" to cast off and come back to help pick up the barges. The "Duke" did so but before it could help, the "Henjes" had succeeded in making fast to the barges again and the "Duke" resumed its position at the head of the tow. The same thing occurred with the same result about half past seven. And then at about a quarter past eight more serious trouble occurred. The men on the barges then began flashing lights to the "Gerd Henjes" and its captain ordered the "Edwin Duke" to cast off and go back to help them. The "Duke" complied and found that the last three barges had broken away from the first and were rapidly drifting toward the shore. After considerable difficulty the "Duke" succeeded in heaving a line to the first of the three barges and getting a hawser fast to its center bitt, the forward bitts having been broken. When the "Duke" attempted to break the drift of the barges, however, it proved to be unequal to the task and was pulled with them toward the shore until it touched bottom. After some pounding on the bottom for twenty minutes or so the captain of the "Duke" decided that he could not save the barges and cut loose in an attempt to take his vessel to safety. He reported to the captain of the "Gerd Henjes" by radio telephone asking him to try to get help from the Coast Guard and telling him that the "Duke" would try to make Coney Island. About half past nine that night after the tug had suffered severely in the wind and waves and its radio had stopped working, its captain saw a light about five miles out to sea on his port hand and sent out distress signals which were answered by signals showing that it was a Coast Guard boat. It proved to be the Coast Guard cutter "Pontchatrain" which came up and took the captain and crew off the tug, then so low in the water that attempts to tow her were futile. The tug soon sank and was a total loss.

It is clear that when the "Edwin Duke" was lost she was not towing in violation of the warranty in the policy. It is also clear that both on her eastbound voyage to Fire Island Inlet and at the beginning of her westbound voyage from there she was towing in excess of one vessel. It has been argued that she was a helper tug in the westbound tow acting under the orders of the captain of the "Gerd Henjes" so that what she did was not contrary to the warranty limiting her tow to not more than one vessel in these waters. It does not, however, change her status under the policy to call her a helper tug. She was in fact one of three tugs which were all pulling four barges in one tow. All the tugs were towing in a common venture and each was helping the others as three in line and on lines would ordinarily do in the joint effort to tow barges hanging to a line from the last of them. The "Edwin Duke" was towing, therefore, more than one vessel when the storm came up which created the subsequent conditions that caused her to sink. See Shipowners' & Merchants Tugboat Co. v. Hammond Lumber Co., 9 Cir., 218 F. 161; The Bordentown, D.C., 40 F. 682; The Geo. W. Pratt, 2 Cir., 76 F.2d 902.

Had she been lost while actually engaged in that towage the non-coverage of the policy would have been clear enough and so the problem of decision on this appeal is narrowed to the questions (1) was she freed from her obligations to her tow, which while present prevented her from towing within the policy coverage, before she was...