Richelieu Nav Co v. Boston Marine Ins Co

• Decision Date: 19 May 1890
• Parties: RICHELIEU & O. NAV. CO. v. BOSTON MARINE INS. CO
• Court: U.S. Supreme Court

136 U.S. 408

10 S.Ct. 934

34 L.Ed. 398

RICHELIEU & O. NAV. CO. v. BOSTON MARINE INS. CO.

May 19, 1890.

This is an action upon a policy of insurance, bearing date May 1,1 883, insuring the steamer Spartan, a Canadian vessel of 678 tons burden, from April 1 to November 30, 1883. The plaintiff in error, a Canadian cor- poration, chartered the Spartan in the spring of 1883 to the Owen Sound Steam-Ship Company, also a Canadian corporation or association, and she was being run by that company on the route between Owen Sound on Georgian bay, Ont., to Fort William, Ont., on the north shore of Lake Superior, when the loss occurred. The perils insured against are thus stated in the policy: 'Touching the adventures and perils which the said insurance company is content to bear and take upon itself by this policy, they are of the lakes, rivers, canals, fires, jettisons, that shall come to the damage of the said vessel, or any part thereof, excepting all perils, losses, misfortunes, or expenses consequent upon and arising from or caused by the following or other legally excluded causes, viz.: Damage 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, overloading, and all other unseaworthiness; theft, barratry, or robbery.'

The steamer was valued at $50,000, and was insured in all to the amount of $40,000. Her crew consisted of the master, two mates, two engineers, two wheelsmen, four firemen, a full complement in the cabin, and four or five deck-hands. She had made three trips from the opening of the season of navigation; and on the 18th of June, 1883, left Fort William, on her return trip to Owen Sound, and stopped en route at Silver island, on the north shore of Lake Superior, leaving that port at 12:45 P. M., and was stranded on the southwest point of Caribou island, in Lake Superior, at about 2 o'clock in the morning of June 19th. The evidence tended to show that on this occasion, for the first time, she laid her course from Silver island for Passage island; thence direct for White Fish point, on the south shore of Lake Superior. Between Silver island and Passage island a thick fog arose, which continued until after the stranding. She passed Passage island at 2:30 P.M.; thence the chart course laid S. E. by E. 1/2 E. to White Fish point, passing about eight miles to the southward of Car- ibou island, 132 miles from Passage island. About 8 o'clock in the evening of June 18th, the master retired to his stateroom, leaving the second mate on watch, and gave him the following written instructions: 'Monday Evening. Mr. Harbottle: If it continues thick at 10 o'clock P. M., keep her S. E. by E. until 3 A. M.; then keep her S. E. by E. 1/2 E. small. If it clears, continue on your course S. E. by E. 1/4 E.' The fog continued dense during Harbottle's watch, and he made the course prescribed until he came off watch, about 1 o'clock A. M. on the 19th, running the steamer at full speed, which was 12 or 12 1/2 miles per hour, the master testifying that his instructions 'were based on the steamer's running on time.' At 20 minutes past 1 in the morning, Wagner, the first mate, relieved Harbottle, and took charge, navigating the vessel under the same orders; the fog being so dense he says, 'that you could not see anything.' There was no lookout forward; no one else on deck during either watch, beside the mate and the wheelsman; no soundings were taken; and the steamer was kept running at her full rate of speed, carrying her regular steam of 45 pounds, her maximum pressure being 47 pounds. She struck on the south-west point of Caribou island, in Canadian waters, though she should have passed seventeen miles to the southward of that island. Upon the ordinary course from Passage island to White Fish point, she would have passed about 8 miles south, but the testimony tended to show that she took a course somewhat southerly of the most direct course between the two points, which should have carried her some 17 miles south.

Notice of the disaster and request for assistance was sn t by the master to the insurer's agents, who received it, June 22d, and sent to the aid of the Spartan a tug and wrecking expedition, under command of Capt. Swain, which left Detroit June 23d and arrived at Caribou island, June 25th. June 26th, plaintiff sent a telegram to the insurance agent at Toronto, who was the broker who negotiated this insurance, through defend- ants' agents at Buffalo, as follows: 'Spartan ashore on Caribou island, and this company beg to inform you that they abandon the boat, and claim a total loss. Please inform the underwriters.'

The steamer was brought to Detroit, as alleged on the one side, by the order of her master, and there docked and repaired under his instructions, which is denied on the other. That the cost of rescuing the steamer and towing her to Detroit was $7,455.13, which was paid by the underwriters. It is in dispute as to who ordered the repairs, or claimed or exercised control over them or the steamer, or directed where she should be brought, but it is not shown that either plaintiff or defendant did. The repairs were made by the Detroit Dry-Dock Company, and completed in September, at a cost of from $23,000 to $24,000. In November, plaintiff served on the insurers proofs of loss, verified November 3, 1883, in which it is stated: 'That the said vessel, in the prosecution of a voyage from Fort William, on the north shore of Lake Superior, in the province of Ontario, to Owen Sound, on Georgian Bay, in said Province of Ontario, at about 2 o'clock on the morning of the 19th of June last, in a fog, ran ashore on the south-west shore of Caribou island, and became a wreck and total loss, and was duly abandoned by her owners to her insurers, as will appear by certified copy of the protest of her master and mariners, heretofore served upon you; in consequence of which the said Richelieu and Ontario Navigation Company suffered damage, sustained loss or damage, within the perils insured against under the said policy No. 1,965, to the amount of ten thousand dollars, as will further appear by particular statement herewith.'

The agents of the insurers knew nothing of the facts attending the stranding, except what the protest showed, until after March, 1884. Up to that time plaintiff and the underwriters had been negotiating for a settlement of the loss, but could not agree upon the liability for duties upon the repairs, but after discovery of the facts the defendant and the other insurers refused to pay. Upon the trial the jury found a verdict for the defendant, on which judgment was entered.

The opinion of Judge BROWN, the district judge, on the motion for a new trial, will be found in 26 Fed. Rep. 596. The cause was brought to this court by writ of error, and errors were assigned as follows: That the circuit court erred (1) in ruling that no authority was shown on the part of Capt. Gibson to bind the defendant in respect to the repairs made upon the steamer Spartan. (2) In striking out all the testimony respecting the acts and statements of Gibson. (3) In excluding this question put by plaintiff's counsel to the witness Patterson: 'Question. What is the custom of Canadian vessels about carrying a lookout forward?' In refusing to instruct the jury according to the requests made by plaintiff's counsel, as follows: '(4) First. If the jury find that the Spartan, while navigating Lake Superior on June 19, 1883, and while a dense fog prevailed, was stranded on Caribou island, and that the insurers were promptly notified of the disaster, and that proper proofs of loss were furnished to the insurers, then the plaintiff has made a case which prima facie entitles it to a verdict in this case. (5) Second. The stranding of the Spartan on Caribou island, while a dense fog was prevailing, was an accident which is prima facie covered by the policy, and for which the insurers are prima facie liable. (6) Third. If the jury find that the fog contributed proximately to the stranding of the Spartan, then the insurers are liable for the loss caused by sc h stranding. (7) Fourth. There is no evidence in the case which even tends to prove the unsea worthiness of the Spartan, except in regard to her compass; and if the jury find that the compass had not varied more than vessels' compasses ordinarily do, that the steamer had been navigated by the same compass without trouble from the time she left Lachine, on the St. Lawrence river, up to the time of the disaster, and that the officers of the steamer at the time she started upon the voyage on which the stranding took place believed the compass to be reliable, and had reason for so believing, then the insurers would not be relieved from liability on account of any supposed defect in the compass. (8) Fifth. If the jury find that the insurers received the notice of aband onment which has been offered in evidence, and that without notice to the owners of the steamer they sent Captain Swain with a wrecking expedition to her rescue, and that Captain Swain brought her to Detroit for repairs, and was paid for so doing by the insurers; that the steamer was subsequently surveyed for repairs by the insurers, and repaired, and that the owners never interfered with the making of the repairs,—then the jury may consider these facts as evidence of an acceptance of the abandonment.

(9) Sixth. If the jury find that the insurers, upon receiving notice of the abandonment from the owners, sent a rescuing expedition for the purpose of rescuing the Spartan and taking her to a place of repair, and that the Spartan was gotten off by the wreckers and brought to Detroit for repairs and was there repaired without any notice whatever to the plaintiff, and that the plaintiff never...