New York & P.R.S.S. Co. v. Aetna Ins. Co.
| Citation | 192 F. 212 |
| Parties | NEW YORK & P.R.S.S. CO. v. AETNA INS. CO. |
| Decision Date | 21 November 1911 |
| Court | U.S. District Court — Southern District of New York |
This is a libel in personam by the owners of the steamship Santurce against underwriters to recover a proportion of a sum of money assessed against the steamship in general average upon a salvage of the steamship and her cargo. The Santurce left New York on a voyage around the island of Porto Rico and back, December 11, 1904. On December 16, 1904, for some reason not ascertained, she broke off two flukes five feet long, of her fourbladed propeller about half the distance between the rim of the boss and the end of the blade. She arrived at San Juan on the 17th, where she discharged a part of her top cargo, and arrived the next day at Jobos, in the island. From there she went to Ponce and Mayaguez, where, on the 21st, she learned of the damage to her propeller blades which has been mentioned. From there she proceeded to Guanica, where she arrived on the 23d, and where she was 'tipped' for the purpose of taking off her old propeller and shipping another which she carried. This was not done, but on the 24th she went back to Jobos in order to load a sufficient quantity of cargo to put her well down by the stern. From there she went to San Juan, having shipped 2,400 bags of sugar, and left San Juan on the 21st for New York. For some reason not certainly ascertained she stripped off the two remaining blades of her propeller at a point about 14 inches from the rim of the boss. Being thus in this helpless condition, she called to her assistance the steamship Rosewood and was towed to Nassau, where she shipped her new propeller and proceeded to New York without further mishap. Subsequently the Rosewood libeled the Santurce for salvage and recovered. The recovery was adjusted by general average, and the amount awarded against the steamship, which she had paid, was apportioned among the various underwriters. The sum being awarded against the respondent is the proper proportion of the total amount adjusted in general average. Several surveys took place, one at Jobos, one at Guanica, at which it was recommended that she proceed to Jobos and there load with 6,000 bags of sugar to put her in trim and prevent her propeller racing in the heavy sea, and that from there she might safely proceed at slow speed to New York.
The policy in question was a common form of American time policy containing a warranty of seaworthiness and a two-year limitation. To it was attached a printed rider, pasted on the face of the policy, immediately below the first general statement of the name of the steamship, the amount of the risk, and the period for which it ran. It contained all the provisions of the usual English marine policy and at the bottom were the words: 'The terms and conditions of this form are to be regarded as substituted for those of the policy to which it is attached, the latter being hereby waived. ' This was dated and signed by the agent, but had not at the bottom the usual fac simile printed signatures of the president and secretary of the company, which were contained only in the policy. It was conceded that the libel was filed more than two years after the final adjustment in general average, which was the last step taken by the vessel to ascertain the loss.
The underwriter relies on two defenses: First, that the proceeding was begun too late; and, secondly, that the ship was unseaworthy, and that it was negligent for the master to proceed from San Juan upon the voyage.
Everett Masten, for libelant.
John F Foley, for respondent.
HAND District Judge (after stating the facts as above).
The first question is to determine what are the provisions of the policy. The respondent asserts that the policy is in force in so far as its provisions do not conflict with the provisions of the rider, and that therefore the limitation and warranty contained in the policy is effective. To this I do not agree. If so, the words at the...
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