Plummer v. Ins. Co. of N. America

• Decision Date: 08 November 1915
• Citation: 95 A. 605
• Parties: PLUMMER v. INSURANCE CO. OF NORTH AMERICA.
• Court: Maine Supreme Court

95 A. 605

PLUMMER

v. INSURANCE CO. OF NORTH AMERICA.

Supreme Judicial Court of Maine.

Nov. 8, 1915.

Report from Supreme Judicial Court, Cumberland County, at Law.

Assumpsit by Charles A. Plummer against the Insurance Company of North America. Heard on report. Judgment for defendant.

Argued before SAVAGE, C. J., and SPEAR, CORNISH, KING, BIRD, and PHILBROOK, JJ.

Guy H. Sturgis, Gurney, Sturgis & Chaplin, and Connellan & Connellan, all of Portland, for plaintiff. Blodgett, Jones, Burnham & Bingham, of Boston, Mass., and Benjamin Thompson, of Portland, for defendant.

BIRD, J. This action of assumpsit is brought upon a policy of marine insurance, whereby the steam yacht Navis of plaintiff was insured by defendant for the period of one year from the date of the policy, for the recovery of the loss or damage suffered by plaintiff by reason of the yacht filling with water while moored in the harbor of Portland, on the 19th day of June, 1009. The policy was issued by defendant on the 20th day of October, 1908. On this day the plaintiff was sole owner of the yacht which was then lying in the port of Portland and continued to be its sole owner until after the filling of the yacht on the day stated. To the policy was attached a rider at the end of which it is provided that:

"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."

The case is reported to this court upon evidence and admissions, so far as the same are competent and admissible, such judgment to be rendered as law and justice require; the damages, if judgment be for plaintiff, to be assessed by a referee.

It is agreed or admitted— "that the above policy was in full force and effect at the time said yacht filled, as set out in the plaintiff's writ and declaration; and for the better understanding of the contract, the original policy may be produced at the argument by either party.

"The premium provided for in said policy was duly paid by the plaintiff to the defendant, and said yacht was at all times confined to the waters stipulated therein; and from November, 1908, to May 1, 1909, she was laid up and out of commission.

"In the fall of 1908, when said yacht went out of commission, she was put on a cradle and hauled up into the yard of Joseph T. Davidson, a yacht builder, on the South Portland side of Portland Harbor, and then certain of her furnishings were removed, and the yacht was covered up for the winter; and she so remained until some time early in June, 1909, when the plaintiff gave said Davidson orders to do certain work upon the yacht, and then launch her and tow her to the plaintiff's mooring, which was located nearly abreast of Union wharf on the South Portland side of Portland Harbor, which is the inner or upper part of Portland Harbor, and the general location for the anchorage of yachts and small boats.

"The yacht was launched by Davidson in the evening of June 16th, and towed to the plaintiff's mooring, where she remained until the morning of June 10th, when she was observed to be partially full of water.

"The weather between the time of the launching on the evening of June 16th and the morning of June 19th was ordinary summer weather, and the water at the place where the yacht was moored was smooth; and during that time the yacht's machinery, and piping, were not connected up, but remained just as they were on the evening of June 16th, when she was launched. The yacht while lying at the plaintiff's mooring, did not have any one on board, and she did not have any pump aboard that could be used in pumping her out; and no efforts were made to pump her out after she was placed at the mooring until the morning of June 19th, when she was pumped out by the steam tug Startle.

"In consequence of the filling, the plaintiff suffered damage far in excess of the sum of $25 mentioned in the policy, and he gave prompt notice to the defendant company of the filling of said yacht, and the damages thereby occasioned, but the defendant immediately denied all liability for the loss and damage thus sustained."

The terms and conditions of the contract of the parties must be drawn from the rider which, by the terms of the latter, was substituted for the policy. The rider and it alone became the contract. New York, etc., Co. v. Ætna Ins. Co., 204 Fed. 255, 257, 122 C. C. A. 523, and cases cited.

Ordinarily seaworthiness at the inception of a risk is presumed, but where a vessel without being subjected to any stress of weather, or to any unusual buffeting of the seas or other extraordinary peril, founders, the burden of showing seaworthiness is cast upon the assured. Treat v. Un. Ins. Co., 56 Me. 231, 96 Am. Dec. 447; Dodge v. Ins. Co., 85 Me. 215, 27 Atl. 105; Hutchins v. Ford, 82 Me. 363, 370, 19 Atl. 832; Starbuck v. Ins. Co., 34 App. Div. 293, 54 N. Y. Supp. 293. It is, however, unnecesary to consider in this case where the burden lies, or whether the plaintiff has met the burden, since it is apparent that there is no serious question between the parties that the taking of water by the yacht while at her moorings and in smooth water followed a failure to close a sea cock or sea cocks, the inboard and outboard ends of which were below the water line, and which had been opened when the vessel was laid up the preceding fall, when the plaintiff and Davidson entered into the verbal arrangement for the hauling out of the yacht in the fall and her launching in the following spring.

It is undoubtedly the law of England that in time policies of marine insurance there is no implied warranty whatever of seaworthiness. Gilson v. Small, 4 H. E. G. (1853) 353; Thompson v. Hopper, 6 El. & Bl. (1856) 172, 177; Fawcus v. Sarafield, 6 El. & Bl. (1856) 192; Dudgeon v. Pembroke, App. Cases, 1876-77, 284. In the United States the great weight of authority is to the effect that, except in cases when at the inception of the risk the vessel is at sea, there is an implied warranty of seaworthiness in time policies. Capen v. Washington Mut. Ins. Co., 12 Cush. (Mass.) 517 (1853); Rouse v. Ins. Co., 3 Wall. Jr. 367 (1862); Fed. Cas. No. 12,089; Hoxie v. Home Ins. Co. (1864) 32 Conn. 21, 85 Am. Dec. 240; American Ins. Co. v. Ogden (1838) 20 Wend. (N. Y.) 287. See, also, Pope v. Swiss Lloyd Ins. Co., 4 Fed. 153, 154. See, however, Merchants' Ins. Co. v. Morrison, 62 Ill. 242, 14 Am. Rep. 93.

The technical warranty of seaworthiness is satisfied as a condition precedent if at the inception of the risk the vessel be staunch, strong, tight, and properly equipped, and provided to meet the ordinary perils of the adventure in contemplation. The Edwin I. Morrison, 153 U. S. 199, 210, 14 Sup. Ct. 823, 38 L. Ed. 688; The Caledonia, 157 U. S. 124, 134, 15 Sup. Ct. 537, 39 L. Ed. 644; The Irrawaddy, 171 U. S. 187, 190, 18 Sup. Ct. 831 43 L. Ed. 130; The Southwark, 191 U. S. 1, 5-6, 24 Sup. Ct. 1, 48 L. Ed. 65; Hoxie v. Pac. Mut. Ins. Co., 7 Allen, 211, 224; The Silvia, 171 U. S. 462, 464, 19 Sup. Ct. 7, 43 L. Ed. 241.

Speaking of the implied warranty of seaworthiness, it is said in The Caledonia, 157 U. S. 124, 134, 15 Sup. Ct 537, 541 (39 L. Ed. 644):

"As the same warranty implied in respect of policies of insurance exists in respect of contracts of affreightment, that warranty is necessarily as absolute in the one instance as in the other.

"In Putnam v. Wood, 3 Mass. 481, 485 , the Supreme Judicial Court of Massachusetts, speaking through Parker, J., said: 'It is the duty of the owner of a ship, when he charters her or puts her up for freight, to see that she is in a suitable condition to transport her cargo in safety; and he is to keep her in that condition, unless prevented by perils of the sea or unavoidable accident. If the goods are lost by reason of any defect in the vessel, whether latent or visible, known or unknown, the owner is answerable to the freighter, upon the principle that he tacitly contracts that his vessel shall be fit for the use for which he thus employs her. This principle governs, not only in charter parties and in policies of insurance, but it is equally applicable in contracts of affreightment.' "

And upon the same subject, Mr. Phillips declares:

"Whether a policy is for a voyage or period of time, the construction of this warranty is the same as to compliance being a condition precedent at the outset, and as to noncompliance at intermediate stages of the risk." 1 Phil. Ins. (4th Ed.) § 729.

See, also, Dixon v. Sadler, 5 M. & W. (1839) 405, 415; Sadler v. Dixon, 8 Id. (1841) 894, 898; Copeland v. N. E. Mar. Ins. Co., 2 Mete. (Mass.) 438, 444. 2 Arn. Ins. (11th Ed.) § 695.

"After the policy has once attached, a compliance with this warranty ceases to be a condition precedent to the liability of the insurers for any loss." 1 Phil. Ins. § 730.

"The obligation still rests upon the assured to keep the vessel seaworthy if it be practicable, so far as it depends on himself." Id. § 731.

See, also, Morse v. Ins. Co. (C. C.) 122 Fed. 748, 749. And it is laid down by Emerigon:

"It is then certain that the insurers never answer for damages and losses which happen directly through the act or fault of the assured himself. It would be, in fact, intolerable that the assured should be indemnified by others for a loss of which he is the author. This rule is grounded upon first principles. It is applied to the contract of insurance by the Guidon, and is respected in all our books. 'Si casus evenit culpa assecurati, non tenentur assecuratores.'" Emer. Ins. (Meredith, Am. Ed.) 290.

It has been held by this court that if the owner himself was not guilty of carelessness, the negliegnce of his servants will not deprive him of the benefit of his insurance. Hagar v. N. E. M. M. Ins. Co., 59 Me. 460, 463. This was an action upon a time policy, under which the loss occurred some months after the policy must have attached. The loss was claimed to have occurred through the...