Northwest Transp. Co. v. Boston Marine Ins. Co.

• Decision Date: 20 February 1890
• Citation: 41 F. 793
• Parties: NORTHWEST TRANSP. CO. v. BOSTON MARINE INS. CO.
• Court: U.S. District Court — Eastern District of Michigan

41 F. 793

NORTHWEST TRANSP. CO. v. BOSTON MARINE INS. CO.

United States Circuit Court, E.D. Michigan.

February 20, 1890

JACKSON J.

The material facts of this case, on which the questions of law arise and the rights of the parties depend, are the following:

The steam-propeller Ontario, owned by the libelant and valued at $55,000, was in May, 1883, insured against total loss and general average, only to the limit of $49,500, in fire insurance companies, one of said fire companies being the respondent, whose policy was for the sum of $17,500 insurance upon the body, tackle, apparel, and other furniture of said propeller. In the body of the policy the adventures and perils which the respondent undertook to bear and take upon itself were those 'of the lakes, rivers, canals, fires jettisons, ' that should come to the damage of said vessel or any part thereof. It also contained the following exception to the general liability of the respondent or insurer: 'Excepting all perils, losses, misfortunes, or expenses consequent upon, or arising from, or caused by, the following or other legally excepted causes: Damages that may be done by the vessel hereby insured to any other vessel or property; incompetency of the master or insufficiency of the crew, or want of ordinary care and skill in navigating said vessel, and in loading, stowing, and securing the cargo of said vessel; rottenness, inherent defects, unloading, and all other unseaworthiness; theft, barratry, or robbery. ' Indorsed upon the policy was the following: 'This policy is free from any loss caused by or in consequence of fire and covers against total loss and general average only. ' On October 11, 1883, while said policy was in full force, the propeller, laden with a large cargo of miscellaneous merchandise, left the port of Sarnia, Ontario, bound for Duluth. She was in all respects properly officered, manned and equipped. She had an amply sufficient crew, with competent, experienced, and skillful master and mate, who were familiar with the route. Her cargo was properly loaded, stowed, and secured, and the vessel was entirely seaworthy, and free from rottenness or other inherent defects. Her cargo was insured by several companies other than respondent. The Ontario reached the port of Kincardine at noon of October 12th, and left there about 1 p.m. of that day, the weather being fine, the lake smooth and calm, with only a slight wind from the southward. The course after leaving Kincardine is N.E. by N. to Point Douglass. From there to the 'Dummy,' the entrance of Southampton harbor, the course is N.E. half E., which takes the vessel clear of the shoal at or near Nine-Mile Point on the east shore of Lake Huron. This portion of the route from Kincardine to Southampton is usually run on time, and the course of vessels is maintained from Kincardine until Point Douglass is passed; then it is changed by porting for Southampton. The master of the Ontario went off watch, and the mate took charge of the vessel's navigation, soon after leaving Kincardine. The propeller was running on time, upon the usual course, and at her ordinary speed of about 10 miles per hour. About 2 o'clock p.m. 'a very wet, dense, heavy fog' came up, which shut out from view all landmarks and natural objects. The propeller continued on her course at her ordinary speed of 9 or 10 miles per hour. When she had run out his time, the mate called the master, who at once came on deck, took his position in front of the pilot-house, and sent the mate to the mast-head to ascertain if anything could be seen over the fog. The master, supposing that the propeller had cleared the point, as she had run out her time, ported the vessel so as to change her course for Southampton, but finding from the vessel's movements almost immediately afterwards that she was getting into shallow water he at once starboarded her wheel and checked down. The propeller, however, stranded upon the outer edge of Nine-Mile Point, eight or nine miles from the harbor of Southampton. If she had run one or two minutes more on her original course, or if she had run 100 feet further to the north and east before porting her wheel, the point would have been cleared, and the stranding would not have occurred. When he came upon deck, at the call of the mate, the master did not examine his compass to ascertain the exact course of the vessel. The stranding was caused by his porting a minute too soon, and occurred about 2:30 P.M., while the dense fog was still prevailing and obscuring all landmarks. After stranding, efforts were made to back her off, but without success. Then her anchor was put out, and the attempt made to work her bow out into the lake by the use of the windlass. While these efforts were being made the clerk of the boat was sent ashore to telegraph to Sarnia for the assistance of a tug to pull the vessel off. She could have been readily and easily pulled off by a good tug, without lightering her, as she was only aground at or on her heel. In her efforts to release herself, the Ontario broke her wheel and shoe. This was the only damage she sustained directly from the stranding and the efforts to get her off. The cargo was in no respect injured or damaged by the stranding, or the attempts to release the vessel. While the vessel was being gradually worked off by the use of her anchor and windlass, and about four hours after the stranding, the wind, which had been from the southward and light when she grounded, changed to the northwest, commenced blowing hard, and the sea began to rise, indicating the approach of a severe storm. The heavy sea presented all further efforts to get the vessel off by means of the anchor and windlass. The storm continued to increase in force and violence, and became so severe that the lady passengers and children were put ashore in the early part of the night. About 10 o'clock at night, the storm continuing to increase in violence, and the wind coming from the lake, the vessel commenced pounding, and was in imminent danger of being driven onto the shore and becoming a total wreck. To avoid this threatened and impending danger, the master, after consulting with his officers, opened the sea cocks, and scuttled the propeller. As the result of this scuttling portions of the cargo were greatly damaged, but the vessel herself and the remainder of the cargo were saved. The storm continued throughout the night of the 12th of October, and at daylight on the 13th (Sunday) it was still so severe and threatening that all the passengers were landed. It continued during Sunday. Sunday night it blew so hard that the officers and crew abandoned the vessel, expecting she would become a total wreck before morning; but on Monday morning, the storm having abated somewhat, the officers and crew returned to the boat. The storm was so violent, and the sea so heavy, that the wrecking tugs with steam pumps could not reach the Ontario until Monday afternoon. Agents of all or most of the underwriters except respondent came with the tugs, and took charge of the operations of getting the propeller off, which was accomplished on Tuesday, the 15th of October, and done without special difficulty after she was pumped out. She was towed with her cargo to Sarnia, where the underwriters in charge unloaded and disposed of the damaged portions of the cargo, and where the vessel was repaired. The matter of adjusting the loss was referred to a skilled adjuster of Toronto, most of the underwriters expressly consenting to the appointment and selection of said adjuster. Respondent's general agents were informed of his appointment, knew that he was proceeding to make the adjustment on the basis of general average contribution, and when the adjustment was completed were notified of the result thereof, and made no objection to the proceeding or to the award. All the underwriters on the vessel, except respondent, paid their respective proportions of the general average loss charged against the Ontario under and according to the adjustment.

The respondent refusing to recognize its liability for any portion of the loss sustained by the Ontario, under the general average insured against, in, and by its said policy the libelant filed its libel to recover of respondent its proper proportion of said general average loss. Several defenses to the suit are set up by respondent in its answer; the one ultimately mainly relied on, however, being that there was a want of ordinary care and skill in the navigation of the Ontario at the time the stranding occurred, and that such stranding was the direct or chief cause of the loss, thereby exempting respondent from all liability therefor under the exception contained in the policy. On the first submission of the case the learned district judge adjudged and decreed that libelant was entitled to recover its damages for the loss set forth in the libel, and for the purpose of ascertaining the amount thereof a reference was made to a commissioner to take proofs and report the sum due libelant for such damage. When the commissioner's report, which found the amount due libelant from respondent to be $3,074.22, with interest from August 27, 1887, the date of filing the libel, after disallowing the item $376.28 for new wheel and shoe for the propeller, and other items for telegraphing, wages and board of crew, use and damage to hawser, and services of tugs and lighters in pulling off the Ontario, came before the court for final action thereon, both sides having reserved general exceptions thereto, the respondent asked a reconsideration of the question of its liability under the terms of provisions of its policy. Such reconsideration was had, and the court reached the conclusion that the master was guilty of gross negligence in...