Pennsylvania R. Co. v. Burr
Decision Date | 05 April 1904 |
Docket Number | 164. |
Citation | 130 F. 847 |
Parties | PENNSYLVANIA R. CO. v. BURR et al. |
Court | U.S. Court of Appeals — Second Circuit |
Henry G. Wood, for plaintiff in error.
Wilhelmus Mynderse, for defendants in error.
Before LACOMBE, and TOWNSEND, Circuit Judges.
The bill of lading contains the usual clause that in case of loss, either partial or total, damage shall be ascertained and adjusted on the basis of the cash value of the goods at the original port of shipment at the time of shipment, and the further clause:
'In case of loss or damage of any of the goods named in this bill of lading for which the (company) may be liable it is agreed and understood that it may have the benefit of any insurance effected by or on account of the said goods.'
It was held in Phoenix Ins. Co. v. Erie Transportation Company, 117 U.S. 312, 6 Sup.Ct. 750, 29 L.Ed. 873, that such a clause is valid, and limits the right by way of subrogation of the insurer, upon paying to the assured the amount of a loss occasioned by the carrier's negligence to recover over against the carrier.
The cash value at port of shipment was $9,569.30; the damaged value at New York was $4,820.44; verdict was directed for the difference, $4,748.86, with interest; and there is no dispute as to the correctness of the verdict, except that defendant claims the benefit of certain insurance. The sound value of the goods at New York was #11,537.20, and they were insured for that amount with the British & Foreign Marine Insurance Company. The amount due from the insurers to the insured was the difference between sound value and damaged value at New York, $6,716.76, and the sole question in the case is as to the effect of a certain clause in the policy, which reads as follows:
'In case any agreement be made or accepted by the assured with any carrier by which it is stipulated that such or any carrier shall have, in case of any loss for which he may be liable, the benefit of this insurance, or exemption in any manner from responsibility grounded on the fact of this insurance, then and in that event the insurers shall be discharged of any liability for such loss, hereunder, but this policy in these and all cases of loss or damage by perils insured against shall be liable and owe actual payment for (only) what cannot be collected from carrier * * * but also shall be chargeable with the direct pecuniary consequence to the assured temporarily arising from delay in collection from said carrier * * * and the advancing for this purpose only of funds to the assured for his protection pending such delay shall in no case be considered as affecting the question of the final liability of this insurance, and as soon as collection is made from the carrier the title of the insurance, and as soon as collection is made from the carrier the title of the insured to hold the funds so advanced by the insurer shall discontinue, and a portion thereof equal to the sum collected from the carrier shall be repaid to the insurer; but in case of final failure to collect from carrier, a portion of the sums advanced by the insurers equal to the sum short collected from the carrier may be retained and applied in settlement of the actual liability of this insurance thereby established (provided always the loss shall constitute in other respects a claim under this insurance).'.
A somewhat similar clause was before the court in Inman v South Carolina Ry. Co., 129 U.S. 128, 9 Sup.Ct. 249, 32 L.Ed. 612. The court said:
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