Shamrock Towing Co. v. American Ins. Co.
| Decision Date | 11 May 1925 |
| Docket Number | No. 312.,312. |
| Citation | 9 F.2d 57 |
| Parties | SHAMROCK TOWING CO. v. AMERICAN INS. CO. et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Alexander & Ash, of New York City (Mark Ash and Edward Ash, both of New York City, of counsel), for appellant.
Foley & Martin, of New York City (James A. Martin and George V. A. McCloskey, both of New York City, of counsel), for appellees.
Before ROGERS, HOUGH, and MANTON, Circuit Judges.
ROGERS, Circuit Judge (after stating the facts as above).
This libel was filed to recover on a marine policy of insurance. The libelant has brought the case into this court, appealing "from each and every part" of the decree. The decree was entered on June 25, 1923. It dismissed the libel, with costs taxed at the sum of $84.88. The sole reason which the District Judge gave for dismissing the libel was that the libelant had not complied with the warranty.
The uncontradicted evidence shows that the scow was in good condition and seaworthy. The evidence shows that the berth at which the boat was tied up, and where she sank, had boulders and cobblestones on the bottom. She was berthed at high water, and on that account her lines were made tight. The captain of the boat testified that he left the boat about 5 o'clock in the afternoon, and was absent on shore for perhaps three hours, having gone ashore to get provisions; that when he got back he slacked his lines, then cooked his food, and turned in, but before turning in he sounded his boat and found no water in her. The following is an excerpt from his testimony:
On essential points he was flatly contradicted by other and disinterested witnesses. A disinterested witness working at the place where the boat was tied up testified as follows:
Another witness who had charge of the unloading of manure from the boats at the pier testified as follows:
The president of the Shamrock Company testified the "captain" or bargeman advised his office of what had taken place between 9 and 10 o'clock in the forenoon of the day after the accident.
The District Judge, who heard and saw the witnesses, thought incredible the testimony of the captain that he was on the boat the night the accident occurred. We think he was quite justified in disbelieving his testimony. In our opinion, the man was absent from the boat, and the boat sank because she was tied up tight to hold her fast on the rising tide, and no one was present to loosen her lines when the tide ran out. There was no one on her to give assistance when she began to sink.
This brings us to consider the policy of marine insurance on which this libel was filed. In the body of the policy the warranty read that "she the vessel shall at all times have a competent watchman on board, and that, whenever said vessel shall lie at anchor in the nighttime, she shall show one or more lights in a conspicuous place, so as to warn and give notice to approaching vessels." Attached to and forming part of the policy, which contained a number of warranties, was the following: "Warranted that, when this vessel is actually laid up without cargo, it shall be in charge of a competent watchman." No part of the first of the warranties, above quoted, and which provided that the vessel "shall at all times have a competent watchman on board," was deleted, but on the margin of the attached sheet was stamped in red ink the last warranty above set forth. We do not think that the last of these two warranties was intended wholly to supersede the first.
The law is well settled that, where the clauses in the policy can be construed together, they are to be so construed, but where the repugnance is complete one provision excludes the other. We have no doubt that in the pending case the provisions in the warranty clauses are not repugnant, and each may prevail within its own scope. The warranty that the vessel shall "at all times have a competent...
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