Standard Marine Ins. Co., Ltd., of Liverpool, England, v. Nome Beach Lighterage & Transp. Co.

• Decision Date: 07 November 1904
• Docket Number: 979.
• Citation: 133 F. 636
• Parties: STANDARD MARINE INS. CO., Limited, OF LIVERPOOL, ENGLAND, v. NOME BEACH LIGHTERAGE & TRANSPORTATION CO.
• Court: U.S. Court of Appeals — Ninth Circuit

133 F. 636

STANDARD MARINE INS. CO., Limited, OF LIVERPOOL, ENGLAND, v. NOME BEACH LIGHTERAGE & TRANSPORTATION CO.

No. 979.

United States Court of Appeals, Ninth Circuit.

November 7, 1904

Van Ness & Redman, for plaintiff in error.

Nathan H. Frank, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

ROSS Circuit Judge.

This writ of error brings up for review a judgment against the Standard Marine Insurance Company, Limited, based upon a policy covering certain articles laden on the barkentine Catherine Sudden for a voyage from the port of San Francisco to Nome, Alaska, whereby the insurance company insured certain merchandise of the defendant in error, laden below deck, in the sum of $5,250, and a lighterage plant, also belonging to the defendant in error, laden on deck, in the sum of $3,000, against--

'Perils of the seas, pirates, assailing thieves, jettisons, barratry of the master or mariners, and all other losses and misfortunes that have or shall come to the hurt, damage, or detriment of the said property, or to which insurers are liable by the rules and customs of insurance in San Francisco, excepting such losses and misfortunes as are excluded by this policy.' The policy provided that the risk thereunder should 'cease at ship's tackle or thirty days after arrival at destination'; and, in accepting it, the defendant in error engaged for itself, its factors, servants, and assigns--

'To sue, labor, and travel, and use all reasonable and proper means for the security, preservation, relief, and recovery of the property insured, or any part thereof, and also to use all proper and legal means to recover, through general average or otherwise, from the parties interested in vessel freight, or cargo, either or all, any sums due the property insured or its owners, on account of sacrifices, losses, or expenses incurred for the general safety or the common good to the charges whereof this company will contribute in proportion as the sum insured is to the whole sum at risk.'

None of the articles in question were covered by the memorandum clause of the policy, which provided that all articles not excepted under that clause were--

'Warranted by the insured free from particular average and partial loss unless occasioned by standing, sinking, fire, collision, or other extraordinary peril hereby insured against, and amounting to fifty per cent. or more on the sound value of the whole shipment at the port of delivery, and all such loss shall be settled on the principles of salvage loss, with benefit of salvage to the insurers.'

The policy contained the further stipulation--

'That the provisions of the Civil Code of California shall be conclusive and binding, as regarding the warranty of seaworthiness, liability of insurers in case of prior, subsequent, or simultaneous insurance, and such other questions as are therein legislated upon and not otherwise provided for in this policy.'

The complaint alleges that while the vessel was proceeding upon her voyage the whole of the insured merchandise and lighterage plant were lost by perils of the sea, to the damage of the defendant in error in the full sum insured.

Among the defenses interposed by the insurance company were the following: That the Sudden, with its cargo, including the articles here involved, sailed from San Francisco for Nome April 28, 1900, and on or about the 28th day of May, 1900, in passing through and out of Unimak Pass into Behring Sea, met drift ice, and within 24 hours thereafter met with large fields of ice; and within 48 hours thereafter ran into and was surrounded with heavy ice, and thereafter, and on or about the 3d day of June, 1900, was struck by ice on her port bow, which was thereby stove in; that by reason of the injury the vessel was so crippled that she was compelled to seek and obtain assistance from other vessels then in the vicinity. That the property insured by the defendant to the action, and then on board the Sudden, consisted of miscellaneous merchandise stowed below deck, and a lighterage plant, consisting of a launch, scow, and surf boat or boats, loaded upon her deck. That in the vicinity of the Sudden at the time were the sailing vessels Pitcairn and Rube Richardson and the steamer Corwin. That considerable portions of the merchandise so insured by the defendant to the action were taken from the Sudden by the Pitcairn, Rube Richardson, and Corwin. That the plaintiff to the action then and there arranged with the captain of the Corwin to tow the Sudden and the launch, scow, and surf boat or boats to Nome, Alaska, agreeing to pay as salvage for towing the launch, scow, and surf boat or boats the sum of $2,500; and that in pursuance of that agreement the Corwin did tow the launch, scow, and surf boat or boats and the Sudden, with so much of the insured cargo thereon as had not been taken from her by the Corwin, Pitcairn, and Rube Richardson, to Nome. That the plaintiff to the action sailed the Sudden into the ice, knowing full well that so to do endangered the safety of that vessel, and that so to do was not consistent with good seamanship, or with due and proper care; but that plaintiff, when ice was encountered, in the exercise of due and proper care, should have changed the course of the vessel, and have sought open water or a port of safety until the danger from ice had passed. That upon the arrival of the Sudden and the launch, scow, and surf boat or boats at Nome in tow of the Corwin, the launch, scow, and surf boat or boats were delivered to the plaintiff to the action, and upon the suggestion of its agent at Nome a survey was held upon the vessel and cargo, resulting in the condemnation of both vessel and cargo, and a recommendation that they be sold; whereupon the vessel and cargo were sold at public auction. That the sale of the cargo was by manifest lots, without inspection or opportunity to inspect by the purchasers thereof. That at the sale of the merchandise here in question was sold for $530, which was at the time of a value greatly in excess of that amount. That with the lighterage plant the insured merchandise could have been landed at Nome. That the plaintiff to the action did not in any way seek to arrange with the Corwin, or with any of its officers, agents, or servants, for the landing or delivery to the plaintiff of the insured merchandise, or any part thereof, nor to secure from the Corwin, or any of its officers, agents, or servants, nor from the Pitcairn or Rube Richardson, the return or delivery to the plaintiff of any of the merchandise taken from the Sudden, nor any compensation therefor, and did not in any way seek, and has not in any way sought, to arrange or agree with the Corwin, or with any of its officers, agents, or servants, for the amount to be allowed or paid to it by way of salvage for the insured merchandise in question, and did not in any way seek, by the purchase of such merchandise, or otherwise to reduce the loss to the plaintiff or to the defendant to the action. That had the plaintiff sought to secure the delivery to it of the insured merchandise, or had bid in the same at the auction sale, it could and would have greatly lessened the loss to plaintiff on such merchandise. That upon the arrival of the Sudden at Nome the weather was calm, and that the insured merchandise could have been safely landed and delivered to the plaintiff, and would have been so delivered if plaintiff had sought to secure the delivery thereof.

It appears from the record that the Sudden left San Francisco in command of Capt. John L. Panno, on the 28th day of April 1900, and proceeded on her voyage, sailing through the Unimak Pass into Behring Sea about the 1st of June. We extract from the testimony of Capt. Panno: 'We sailed from San Francisco on the 28th day of April. The vessel was not down in the water more than usual. She was properly loaded. As a mariner I considered it a late date to start for Nome Beach. Vessels had gone ahead of us; the Thrasher and the Pitcairn, and several others. I cannot remember the names. Most all the steam vessels had gone ahead of us. The Thrasher was a steamer, and the Pitcairn was a sailing vessel. The Rube Richardson was a sailing vessel. The Pitcairn left some time in January or February. We overtook her on the way up. She had two or three months the start of us. I found her in the ice. The Unimak Pass is located at the entrance to the Behring Sea. We passed through Unimak Pass into Behring Sea. We went through the pass about the 1st of June. We did not come in sight of ice until after we got to Unimak Island. I think that was about two and a half or three days from Unimak Pass. The ice was about five miles away when I first sighted it. It was about 5 o'clock in the afternoon then. It was on the lea beam. It was to the left of us. The ice was in small pieces, as big as this room and bigger. They were floating pieces, broken ice. Some of them were about level with the water, and some of them eight or ten feet high. It is generally understood that the largest part of a chunk of ice is that below the surface of the water. I had no idea how far below it extended. Some of these small chunks that I noticed floating about were a quarter of a mile, a mile, and five miles apart. They were not very numerous. I sailed right on, and did not turn around and go back. My object was to get through it. When I got to the ice itself I found leads once in a while. Perhaps tonight I would be all inclosed with ice-- ice all round us, so we could not move any way; but during the night that ice would move, and perhaps in the morning at 8 or 9 o'clock we would have a lead of four or five miles that we could sail through. But around these leads, on each side and...