New Zealand Ins. Co. v. Earnmoor S.S. Co.

• Decision Date: 08 February 1897
• Parties: NEW ZEALAND INS. CO. v. EARNMOOR S. S. CO., Limited.
• Court: U.S. Court of Appeals — Ninth Circuit

79 F. 368

NEW ZEALAND INS. CO. v. EARNMOOR S. S. CO., Limited.

United States Court of Appeals, Ninth Circuit.

February 8, 1897

Andros & Frank, for appellant.

Chas Page, for appellee.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

ROSS Circuit Judge.

The appellant, New Zealand Insurance Company, was respondent in the court below to a libel brought by the appellee, the Earnmoor Steamship Company, Limited, upon a policy of marine insurance, by which the insurance company insured the appellee against any loss on its steamship Earnmoor which might be caused by any one of the perils usually set forth in a policy of marine insurance. Both companies were incorporated under the laws of the United Kingdom of Great Britain and Ireland; the steamship company having an office for the transaction of its business at Newcastle, England and the insurance company having an office for the transaction of business in the city and county of San Francisco, state of California, in which city and county the policy sued on was issued. On or about January 10, 1889, and during the life of the policy, the ship, bound on a voyage from Philadelphia to St. Thomas, while proceeding down the Delaware river met with a serious disaster, requiring salvage services and subsequent repairs, which gave rise to a claim in general and particular average against the appellant as underwriter upon the hull and appurtenances of the vessel. In due time an average adjustment was made by adjusters, which shows a loss by the shipowner in particular and general average of a certain amount. Of this amount the appellant was called on to pay a share proportionate to the amount insured by it. The average statement was presented to the appellant July 23, 1889. It charged in particular average, $43,344.70 and in general average, $41,598.44. In the settlement based upon this statement the appellant was charged, as its proportion of those amounts, $997.41. The appellant declined to admit its liability for the amount so claimed as loss, upon the ground that certain items in the adjustment were improperly considered and admitted by the adjusters. These items were specifically pointed out by the appellant, and a restatement made by it, omitting the items objected to, and stating what it conceded to be the proper amounts in particular and general average, as follows: In particular average, $41,502.36; in general average, $35,480.36. It is true that in the statement so presented by the appellant the amount of the appellant's proportion of the particular and general average was not stated, but its ascertainment upon the basis presented was a mere matter of mathematics, to which the maxim, 'Id certum est, quod certum reddi potest,' may be properly applied. No tender, however, of any amount under the policy was made by the appellant. On the 22d day of January, 1892, the appellee filed its libel in the court below to recover the proportion of the entire particular and general average loss suffered by the shipowner shown to be due by the adjuster's statement, and amounting to the sum of $997.41. To the libel thus brought the appellant appeared, and contested the amount properly due from it was a less sum, and only its proportion of the amounts given in its statement heretofore referred to. No tender of such proportion, however, was made by the appellant. The litigation thus commenced continued for several years, during which time a great deal of testimony was taken in different parts of the country. Upon the final hearing the court below decided that, except in two particulars, the adjustment made by the adjusters, and upon which the original demand of the appellee was made upon the appellant, was correct. 73 F. 867. All other objections to that adjustment were, at the hearing in the court below, overruled, with the consent of the appellant; and by agreement of the parties the adjustment was returned to the adjusters, to be made to conform to the opinion of the court in the particulars referred to. The actual difference between the amount claimed to be due under the original adjustment and that found to be due by the court below was $43.60. The question which constitutes the ground of the present appeal then arose in the court below; that is to say, the question as to whether the appellant should be required to pay interest on the amount found to be due upon the policy. The court below held that the amount found due should bear interest at the rate of 7 per cent. per annum from July 23, 1889,-- the date the average statement was presented to the appellant,-- and so adjudged. It is from that portion of the decree allowing such interest that the present appeal is taken.

It is urged on the part of the appellant that under the statute of the state of California the appellant is not chargeable with interest. In support of that position, sections 2152 and 1917 of the Civil Code of California are cited. Those sections are as follows:

'Sec. 2152. The

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