Mellon v. Federal Ins. Co.

• Citation: 14 F.2d 997
• Parties: MELLON, Director General of Railroads, v. FEDERAL INS. CO.
• Decision Date: 14 September 1926
• Court: U.S. District Court — Southern District of New York

14 F.2d 997 (1926)

MELLON, Director General of Railroads, v. FEDERAL INS. CO.

District Court, S. D. New York.

September 14, 1926.

Burlingham, Veeder, Masten & Fearey, of New York City (Van Vechten Veeder and A. H. Neely, both of New York City, of counsel), for libelant.

Bigham, Englar & Jones, of New York City (D. Roger Englar, of New York City, of counsel), for respondent.

AUGUSTUS N. HAND, District Judge.

This suit is to recover upon two insurance policies (one covering from January 1, 1918, to December 31, 1918, and the other from January 1, 1919, to December 31, 1919) for injuries to two boilers on the steamship El Mundo The port boiler burst when subjected to the annual hydrostatic test required by law. Shortly thereafter the starboard boiler, though it passed the test satisfactorily, developed leaks, and, upon further examination, was found to have cracks in the shell and to be in a serious condition. The cost of repairing the port boiler was $69,305.38, and the starboard boiler $72,210.37

The insurance policies contained the following provisions:

"Touching the adventures and perils which we, the said assurers, are contented to bear and take upon us, they are of the seas, men of war, fire, enemies, pirates, rovers, thieves, jettisons, letters of mart and countermart, surprisals, takings at sea, arrests, restraints and detainments of all kings, princes and peoples, of what nation, condition or quality soever, barratry of the master and mariners, explosions, riots, or other causes of whatsoever nature arising, either on shore or otherwise, causing loss of or injury to the property hereby insured, and of all other perils, losses, and misfortunes that have or shall come to the hurt, detriment, or damage of the said ship, etc., or any part thereof. * * *

"This insurance also specially to cover (subject to the $2,500 D/A warranty) loss of or damage to hull or machinery, through the negligence of master, charterers, mariners, engineers, or pilots, or through explosions, bursting of boilers, breakage of shafts, or through any latent defect in the machinery or hull, provided such loss or damage has not resulted from want of due diligence by the owners of the ship, or any of them, or by the manager, masters, mates, engineers, pilots, or crew not to be considered as part owners within the meaning of this clause should they hold shares in the steamer."

The three boilers of the El Mundo were subjected to a hydrostatic test on August 1, 1918, which was conducted by government inspectors in accordance with the rules and regulations. The boilers were allowed a pressure when in service of 200 pounds, the hydrostatic pressure sought to be applied in making the test was 300 pounds, and their theoretical strength was sufficient to resist a pressure of 1,000 pounds. During the test, and after the pressure had gradually been brought up to 275 pounds, the port boiler burst with a loud noise. No injury was done to the center boiler, which was next to it. On August 3, 1918, the starboard boiler was given the usual interior examination by the inspectors, and was also successfully subjected to a hydrostatic test of 300 pounds, and was apparently uninjured. All three boilers were connected, so that the pressure of the test was applied to each. While the examination and test of the starboard boiler disclosed no defects, it was impossible to discern small cracks, had such existed, by an inspection of the interior, for some parts of the inner surface of the boiler were hidden by tubes, and fine hair cracks might not be discovered by such an examination, because they would be too small. It remains a significant fact, however, that no defects were discovered after the usual careful test made at this time.

The El Mundo received a permit to operate with two boilers after the port boiler burst, and she proceeded on her regular trips from New York to Galveston and return, and continued them for about eight months. During that period some small leaks developed in the starboard boiler, which were from time to time repaired. But in March, 1919, a leak appeared in one of the circumferential butt straps, and water was seen coming from the outside of this butt strap. (Minutes, pp. 38, 39.) Hebble testified (at page 90 of the Minutes):

"We had to lay the ship up to repair the port boiler; and if my memory serves me right, when she came in, that trip, when we discovered the leak in the butt strap, we concluded to lay her up immediately."

It is interesting to note that no record proof is available showing in detail the pressure to which the boilers were subjected while the vessel was making her trips during the eight months when only two boilers were in use, nor were any data furnished to show the length of time taken in firing. Such information might throw important light on the cause of the leaks in the starboard boiler, and the origin of her fractures. It is a notorious fact that there was a shortage of vessels during the great war. In such circumstances there was a great temptation to relax prudence in aid of expedition, and to overcome the loss of one boiler by working the remaining two harder than usual. This could only be done by increasing the steam pressure on the long trips from New York to Galveston. The boilers were regularly inspected by an internal examination every three weeks after August 1, 1918, as they were before; but nothing is shown to have developed during the eight months of her subsequent operation, except small leaks and cracks about rivet holes, until the leak appeared around the outside of the butt strap in March, 1919, just before the vessel ceased her trips and was laid up for boiler repairs. When she was taken to dry dock, the lagging and sheet iron covering which enveloped the starboard boiler were removed. It was then that the following condition was described:

"The inboard sheet of the forward course of shell through the rivet holes where it joins the heads was fractured. The after head through the rivet holes had one diagonal fracture extending from the edge of the plate for a distance of 33 inches. Four shell butt straps were cracked. The lower course of the forward head was cracked practically all around through the rivet holes. The forward tube sheet was cracked through the rivet holes where it joined the lower course. Both plates in the center course of the shell plate cracked through the rivet holes. Four butt straps for the center course of shell plate cracked. Two of the shell plates were cracked through the rivet holes at the forward end where they joined the center course of plating." (Minutes, pp. 39, 40.)

The cracks in both the port and starboard boilers had straight even edges, without reduction of area or elongation in the metal. Libelant's chief witness, Hebble, said that this showed that there must have been defects or flaws in the metal of both boilers. Both Hebble, the superintending engineer of the libelant, and Gray, the chief engineer of the El Mundo, as well as libelant's witness, Frank S. Martin, expressed the belief that the test on August 1, 1918, resulting in the bursting of the port boiler, caused the cracks in the starboard boiler, which were further opened by the subsequent pressure on the boiler when in operation. Their theory was that the sudden release of the pressure, due to the bursting of the port boiler, strained the starboard boiler in the weak places where the flaws existed, and opened fissures.

Three witnesses were called for the respondent in answer to this contention. They said that the bursting of the port boiler could have had no connection, or, at least, no substantial connection, with the damaged condition of the starboard boiler. Mr. Jordan said: "I cannot conceive that it would have anything to do with it." (Minutes, p. 95.) Mr. MacNaught said: "I can see no connection between the damage caused to the starboard boiler by the fracturing of the port boiler." (Minutes, p. 98.) Mr. Haight testified that it was "not a material factor in my opinion," though he added: "If the starboard boiler were bad for some cause, nearly at the breaking point, when the port boiler failed, I would say that the failure of the port boiler might have some effect on the starboard boiler." (Minutes, p. 100.)

Now it seems strange, if the bursting of the port boiler was the cause of all the trouble, that the vessel should have been able to run for eight months with only some trivial repairs to leaks in the starboard boiler. One would suppose that, if the bursting of the port boiler had fractured the starboard boiler, a large leak would have started immediately, sufficient to make its way through the lagging. Certainly prior to March, 1919, no such leak developed, and no interior cracks were discovered in spite of an immediate examination. Moreover, a strain sufficient to crack the starboard boiler ought to have affected the center boiler more readily than the starboard boiler, for the center boiler was 8 or 10 feet nearer to the port boiler than the starboard boiler was. But the center boiler remained intact, and the men in the engine room of the starboard boiler were uninjured by any concussion which occurred. Moreover, the unanimous testimony that none of the fractured edges in either boiler showed any pitting or corrosion makes it difficult to believe that cracks, if caused in the starboard boiler by the bursting of the port boiler on August 1, 1918, would have had an uncorroded appearance nine months afterwards, when the starboard boiler was stripped and the cracks were first seen.

I think the evidence insufficient to show that the damage to the starboard boiler was "through * * * bursting" of the port boiler, so as to come within the terms of the policy, if that instrument be taken to impose liability only for damage to other machinery "through bursting of boilers." The testimony of Hebble was to the effect that both boilers gave way because of latent defects, but I am...