Independent Transp. Co. v. Canton Ins. Office
| Decision Date | 16 October 1909 |
| Docket Number | 3,849. |
| Citation | 173 F. 564 |
| Court | U.S. District Court — Western District of Washington |
| Parties | INDEPENDENT TRANSP. CO. v. CANTON INS. OFFICE, Limited. |
Ira A Campbell, for libelant.
William H. Gorham, for respondent.
These several suits are founded upon policies insuring the steamer Vashon. The policies were issued at Seattle. They contain the usual restrictions in the San Francisco form of marine policies, and the following special warranty clause:
The first exception is on the ground of alleged insufficiency of the libels in the failure to allege compliance on the part of the insured with the requirements of express warranties in the policies; the contention being that the libelant should assume the burden of alleging and proving that there was no breach of the warranties. This is contrary to the fundamental principle that courts do not presume that a contract has been broken, nor require a litigant to prove a negative. Therefore, notwithstanding the authorities, the court holds that a breach of warranty should be pleaded as a special defense in order to present that issue in the best form for adjudication. The first exception is overruled.
The respondents have introduced, and made part of the record in the case, the notice of abandonment of the vessel and proof of loss, whereby it appears that the Vashon, at the time of the disaster which occasioned the loss, was out of commission and moored in the Duwamish river; and it is contended that as she was not then employed in the general passenger and freighting business on Puget Sound, there was a breach of the special warranty, which avoided liability under the terms of the policies. The respondents contend for the principle that insurers are entitled to insist upon strict and literal compliance with special warranties, and deny the right of the libelant to introduce parol evidence to explain or vary the terms of the warranty clauses. This argument recoils, for application of a rigorous rule defeats the purpose for which it has been invoked in these cases. Unless the rules of grammar shall be disregarded, or the phraseology of the warranty changed by a somewhat liberal construction, there is no apparent breach. It is not pretended that the record shows that the Vashon was not employed in the general passenger and freighting business on Puget Sound when the policy was issued. The word 'employed' is a verb of the past or present tense, and cannot be accurately used...
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...the defense of laches by exceptions or exceptive allegations. Such procedure was specifically sanctioned in Independent Transp. Co. v. Canton Ins. Office (D. C.) 173 F. 564, 566, in which the court "The fourth exception is for alleged waiver of the right to abandon, by excessive delay witho......
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