Rosa v. Insurance Company of State of Pennsylvania, 24442.

• Decision Date: 21 January 1970
• Docket Number: No. 24442.,24442.
• Citation: 421 F.2d 390
• Parties: Manuel G. ROSA, Managing Owner, Circle L Investment Corporation, Antonia Garcia Da Rose, John H. Avila, Manuel Pestana, Victorino Garvia Da Rosa, Manuel De Souza, Jose Da Graca, Jose Enginio Da Graca, Edward J. Correia, Plaintiffs-Appellees, v. The INSURANCE COMPANY OF the STATE OF PENNSYLVANIA, a corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

421 F.2d 390 (1970)

Manuel G. ROSA, Managing Owner, Circle L Investment Corporation, Antonia Garcia Da Rose, John H. Avila, Manuel Pestana, Victorino Garvia Da Rosa, Manuel De Souza, Jose Da Graca, Jose Enginio Da Graca, Edward J. Correia, Plaintiffs-Appellees, v. The INSURANCE COMPANY OF the STATE OF PENNSYLVANIA, a corporation, Defendant-Appellant.

No. 24442.

United States Court of Appeals Ninth Circuit.

January 21, 1970.

William James Zumwalt, San Diego, Cal., for defendant-appellant.

Robert O. Curran (argued), of Curran, Golden, McDevitt & Martin, San Diego, Cal., for plaintiffs-appellees.

Before MERRILL and ELY, Circuit Judges, and CROCKER,^* District Judge.

MERRILL, Circuit Judge.

This is a suit on two marine insurance policies: one covering the hull and skiff of the fishing vessel, Belle of Portugal; the other covering the cargo.

The Belle of Portugal, sailing out of San Diego, was lost at sea off the coast of South America on December 19, 1966. Cause of the loss was an electrical fire. The crew abandoned ship, took to the power skiff and were picked up by a British freighter, the Port Adelaide. The crew of the Port Adelaide attempted to hoist the skiff aboard but was unsuccessful and the skiff sank and was lost. The deck log of the Belle of Portugal evidenced the extent of the ship's cargo of tuna at the time of sinking. The District Court rendered judgment against the insurer in the sums of $215,000 for the loss of the vessel, $9,000 for loss of the skiff, and $99,140 for loss of cargo, plus interest on the amount due for loss of vessel and skiff dating from the insurer's written denial of liability. The insurance company appeals as to each item of damages.

1. Loss of the Vessel

The "California Fishing Vessels (1959)" attachment to the policy is standard in form and contains a common perils clause which states in part: "* * touching the adventures and perils which we, the assurers, are contented to bear and take upon us, they are of the sea, men-of-war, fire * * *." The policy also provided: "Warranted to be subject to English law and usage as to liability for and settlement of any and all claims."

Appellant contends that the fire was due to the negligence of a shoreside electrician. It offered proof of this fact; that offer was rejected by the District Court as irrelevant. This is assigned as error. Appellant contends that a fire so caused is not a peril of the sea.

Fire, however, is specified as an insured peril in itself. Under English law the fact that cause of the fire can be traced to negligence of captain, crew or agents of the ship owner will not defeat recovery. As a British court has stated in an analogous situation:

"In this case, however, the loss is occasioned by fire, against which the assured is protected by the terms of the policy; and, in our law at least, there is no authority which says that the underwriters are not liable for a loss, the proximate cause of which is one of the enumerated risks, but the remote cause of which may be traced to the misconduct of the master and mariners * * *" Busk v. Royal Exchange Co., 2 Barnewall & Alderson 73, 80, 106 Eng.Rep. 294 (1818); see 2 Arnould Marine Insurance, § 818 at 774.

We find no error with respect to this portion of the judgment.

2. Loss of the Skiff

Appellant contends that the loss of the skiff was due to the negligence of the Port Adelaide crew; that since such negligence was not insured against in the policy, the insurance company is not liable.

There is no proof of negligence (other than the testimony of the captain of the Belle of Portugal who stated that he was told that the operation of hoisting the skiff was not properly done). Even if there were evidence of negligence, however, the "Inchmaree" clause of the insurance policy covers losses due to the negligence of "mariners."¹

We find no error with this portion of the judgment.

3. Loss of Cargo

Cargo was covered by a separate policy to which the law of California applied. That policy provided in part: "Insurance to attach when vessel(s) advise Carl and Carl Insurance, Inc. of the amount of fish on board. Vessel is permitted to report at various times throughout the voyage. No insurance to attach hereunder unless message is received and confirmed in San Diego that the vessel had taken on a load of not less than one-fourth of her carrying capacity."

Prior to the loss the only report received was to the effect that 70 tons of fish (less than one-fourth capacity) were aboard. Shortly after loss the full cargo was reported. Appellant contends that insurance had not attached at the time of loss.

This contention was rejected by the District Court on two grounds. First the court found the policy ambiguous and resolved that ambiguity against the insurance company on the authority of California law. Preferring the second ground, we need not and do not reach the issue so presented.

The District Court also held that under the policy terms the failure to report promptly was excused. The policy provided: "This policy shall not be prejudiced by any unintentional delay or omission in the reporting hereunder." (emphasis added) The court found that the near capacity cargo claimed by plaintiffs was substantiated by the deck log, and continued:

"While there was some question regarding the reporting of the fish aboard,² the evidence

...