International Marine Ins. Co. v. Winsmore

• Decision Date: 28 January 1889
• Docket Number: 50
• Parties: INTERN'L MARINE INS. CO. v. THOS. WINSMORE
• Court: Pennsylvania Supreme Court

16 A. 516

124 Pa. 61

INTERN'L MARINE INS. CO. v. THOS. WINSMORE

No. 50

Supreme Court of Pennsylvania

January 28, 1889

Argued January 16, 1889

ERROR TO THE COURT OF COMMON PLEAS NO. 2 OF PHILADELPHIA COUNTY.

No. 50 July Term 1888, Sup. Ct.; court below, No. 361 December Term 1887, C.P. No. 2.

On January 23, 1888, Thomas Winsmore brought assumpsit against the International Marine Insurance Company, Limited, and the same day filed a statement from which the following facts appeared as the ground of action:

The Schooner, Francis L. Cooper, of which Thomas Winsmore, the plaintiff, was part owner to the extent of an eighth interest, was an American vessel hailing from Philadelphia and on March 27, 1887, set out from her home port with a cargo of general merchandise purchased on the joint account of the owners and bound for San Andreas, Old Providence and other islands in the Caribbean sea, where the cargo was to be sold for cash and cocoanuts, a cargo of cocoanuts to be carried on her return voyage to Philadelphia, there to be sold, also for joint account of the owners. At the date of the schooner's departure, the plaintiff, at the request of the other owners, had advanced for store and chandlery bills the sum of $1,600.39, and between that date and June 1 1887, he had made further advances on account of wages and insurance on cargo, amounting to $250.50.

On June 25, 1887, while the schooner was at sea, the defendant company signed and delivered to the plaintiff a contract of insurance, of which the following was the material part:

"This is to certify that we have insured for Thomas Winsmore subject to the conditions of special cargo policy, now in use by the insurers, the sum of one thousand dollars, on advances and disbursements, valued at sum insured, by the schooner Francis L. Cooper, at and from San Andreas and Old Providence to Philadelphia. Loss, if any, payable at the office of the company in Philadelphia, to the order of Thomas Winsmore on presentation of this certificate, and said loss to be adjusted with the holder hereof, in conformity with the conditions of the said policy."

The schooner reached Aspinwall on June 28, 1887, and on June 30th sailed for San Andreas, where she arrived on July 3d. A cargo of cocoanuts was procured and placed on board, but before sailing from San Andreas she was destroyed by fire with her entire cargo, on August 10th. On September 5th and 8th, 1887 the plaintiff paid for wages of the crew and master from March 23d, the sum of $1,397.74.

The foregoing facts were undisputed by the affidavit of defence, filed on February 6, 1888, but recovery by the plaintiff was resisted upon grounds sufficiently appearing in the opinion of this court.

On April 9, 1888, the court, HARE, P.J., made absolute a rule for judgment for want of a sufficient affidavit of defence; exception. The damages were then assessed in favor of the plaintiff at $1,030, and judgment entered, when the defendant company took this writ, assigning as error the order making absolute the rule for judgment.

Judgment affirmed.

Mr. Alfred Driver (with him Mr. J. Warren Coulston), for the plaintiff in error:

1. A lien for advances for store and chandlery bills for a domestic vessel in her home port, is given by § 2, act of June 13, 1836, P.L. 616, which continues till the time when the vessel shall proceed on her next voyage and no longer. Supplies, etc., furnished to a vessel at her home port do not create a lien against the vessel under the general maritime law: The General Smith, 4 Wheat. 438; The Lottawanna, 21 Wall. 558; Insurance Co. v. Baring, 20 Wall. 159, 163. Being without a lien upon the vessel, the plaintiff was without an insurable interest, and his demand for such advances falls: Insurance Co. v. Baring, 20 Wall. 159, 163; 1 Phillips on Insurance, § 204; The Lottawanna, 21 Wall. 559. The same principle will apply to the other items of plaintiff's claim advanced before the certificate of insurance was made.

2. The defendant insured advancements and disbursements made and to be made, "at and from San Andreas and Old Providence to Philadelphia." It is not shown what proportion of the wages of crew and master became due after July 3, 1887, when the insurance attached. Moreover, the schooner was destroyed August 10, 1887, and these wages were paid up to September 5th. And in addition, it is well settled by the American law that the master has no lien upon the vessel for his wages: The Orleans v. The Phoebus, 11 Pet. 175; The Imogene McTerry, 19 F. 463; Fisher v. Willing, 8 S. & R. 118. The maritime lien for the wages of seamen is a personal one, and cannot be assigned so as to be enforceable as a lien by the assignee: Henry's Admiralty, 133.

Mr. Henry R. Edmunds (with him Mr. James M. West), for the defendant in error:

1. While the owners were tenants in common of the vessel, yet as to this particular venture they were partners, and the part owner making advancements and disbursements on account thereof has a lien in rem therefor against the vessel, cargo and earnings: Story on Partnership, 56, 97, 441, 444; Abbott on Shipping, 77, 79, 94; De Colyar on Partnership, 794; 1 Parsons, Mar. Law, 95, 101; Holderness v. Shackels, 3 B. & C. 612, 618; Doddington v. Hallet, 1 Ves. Sr. 497.

2. Right of property is not essential to an insurable interest; injury from its destruction, or benefit from its preservation, may be sufficient: whatever furnishes a reasonable expectation of pecuniary benefit from the continued existence of the subject of insurance, is usually a valid insurable interest: Hancox v. Insurance Co., 3 Sumn. 142; Bucks v. Hedrick, 1 Pet. 163; Miltenberger v. Beacom, 9 Pa. 198; Marshall on Insurance, 105; Dixon, General Average, 144; Baring v. Insurance Co., 20 Wall. 163; Pedrick v. Fisher, 1 Sprague 565; Patapsco Ins. Co. v. Coulter, 3 Pet. 222; Fenn v. Insurance Co., 53 Ga. 378; Putnam v. Insurance Co., 5 Met. 386; Lucena v. Robinson, 2 Bos. & P. 75.

3. The insured is under no obligation to disclose everything to the underwriters; silence is no imputation of bad faith Grevemeyer v. Insurance Co., 62 Pa. 340. A consignee who has made advances on the faith of the consignment may insure them in his own name: Parks v. Insurance Co....