Taber v. China Mutual Insurance Company

• Decision Date: 30 June 1881
• Citation: 131 Mass. 239
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Edward T. Taber & another v. China Mutual Insurance Company. Same v. Commercial Marine Insurance Company. Same v. Orient Insurance Company. Richard S. Howland v. India Mutual Insurance Company

131 Mass. 239

Edward T. Taber & another v. China Mutual Insurance Company.

Same v. Commercial Marine Insurance Company.

Same v. Orient Insurance Company.

Richard S. Howland v. India Mutual Insurance Company

Supreme Court of Massachusetts

June 30, 1881

Argued February 23, 1881; October 24, 1878 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Bristol. Actions of contract on four policies of insurance, the first for $ 4500, and each of the others for $ 2250, upon the barque Joseph Maxwell and whaling outfits, on each interest in proportion as valued, "wherever she may go on a whaling voyage;" three of the policies at and from New Bedford, January 13, 1872, until her return to New Bedford if on or before January 13, 1876, and the policy of the Orient Company at and from San Francisco on December 11, 1872, until her return to New Bedford if on or before January 16, 1876. In the margin of each policy, the vessel was valued at $ 11,000 and the outfits at $ 25,000. Each policy contained the usual clause that the insurers should not be liable for any partial loss on goods, or on the vessel or freight, unless it amounted to five per cent.

The policies of the China and India Companies were made at Boston, and were expressed to be "subject to the same risks, conditions, liabilities and restrictions as are taken by the New Bedford insurance companies on whaling risks." The policy of the Orient Company was made at New York, and that of the Commercial Company at New Bedford, and each of these two policies contained the following printed clause: "It is understood and agreed that catchings shipped home during the voyage shall be at the risk of the insured, without diminution of the value of outfits at the time, and that one fourth of all other catchings shall replace the outfits consumed."

In the policy of the Commercial Company it was agreed that, "in case of loss, such loss shall be paid in sixty days after proof and adjustment thereof, the amount of the premium note, if unpaid, and all sums due to the company from the insured when such loss becomes due, being first deducted, and all sums coming due being first paid or secured to the satisfaction of the said president and directors, they discounting interest for anticipating payment." "It is also agreed that the insured shall not have the right to abandon the vessel, for the amount of damage merely, unless the amount which the insurers would be liable to pay under an adjustment, as of a partial loss, shall exceed half the amount insured."

The four cases were together referred to an auditor, who, at the request of all the counsel, made the following report:

"1. The barque Joseph Maxwell sailed in January, 1872, from New Bedford, which was her home port and the intended terminus of the voyage, and was at Honolulu in April, 1874. On April 25 1874, she sailed thence for the Arctic whaling season, which lasts from about June to or into October, when the whalers leave the Arctic Ocean and go to Honolulu or San Francisco to recruit. She reached Honolulu on December 1, 1874, damaged by sea peril as follows: Before August 11, the ship had been engaged in whaling among ice, and had lost some of her copper by contact with the ice. On August 11 she went on a shoal, about three miles off Point Barrow in the Arctic Ocean, at 5 P. M. and got off about 2 A. M. following; whether she was injured at this time was in dispute. After this she continued whaling until September 25, during which time she had severe gales, nearly one gale all the time; the wind would lull for a few hours and then come on again; there were head gales during five days and frequent cross seas, and the ship labored heavily. On September 25 a leak of one thousand strokes in twenty-four hours appeared. On September 27 this leak had increased to twelve hundred strokes. In passing Cape Lisburne, on October 14, she had to carry sail in a gale to keep off of a lee shore. During this time the leak increased to four thousand and six thousand strokes; cross seas made the ship labor very heavily here; she was struck aback many times by sudden shifts of wind; ice was forming on her all the time; it was two to three feet thick forward and five of six feet outside. On October 21 she reached Plover Bay, where she anchored in smooth water, and remained nine days, engaged in boiling and stowing down cargo; while at anchor there, she had a heavy gale from the south which lasted in full force two days, during which time injury resulted to the windlass knees, windlass bitts and one hawse-pipe, and the leak was three thousand strokes. On October 30 she left Plover Bay, and when six hours out she encountered another gale and had to carry sail heavy to keep off the land; this gale lasted two days. From the 7th to the 14th of November she was running the Fox Island Passage, in which time there was a cyclone and the leak increased to nine thousand strokes; there were gales, changes of wind and frequent cross seas; the ship was knocked on her beam ends, the leak increased and seas broke over the ship several feet deep; life lines were stretched along the deck and men were lashed to the pumps; by these seas two boats were lost, one boat stove, overhead house was crushed the galley carried away, and some sails and some spars were injured. During the gales in the Arctic Ocean, a working of the beams of the ship appeared, also injury to the rigging, cracks in the foremast and bowsprit, and injuries to other parts. This working and these effects increased in the gales after leaving Plover Bay. The weakening condition of the ship from gale to gale contributed to the injury from subsequent gales. It appeared that, if she had been repaired at Honolulu, the main items of expense would have been re-treenailing, rebolting and putting in additional knees, stripping, calking and coppering. From the beginning of the said peril or perils there was no port of repair short of Honolulu. Plover Bay and all the coasts which she passed were uninhabited, and furnished no opportunity for repair.

"The defendants conceded that losses of the ship had occurred from the foregoing peril or perils insured against, which in the whole, after all due allowances, exceeded fifty per cent of the valuation of the ship. After the plaintiffs had closed their evidence, the defendants admitted that the ship had suffered damage by the perils insured against, sufficient to justify an abandonment of the ship; but contended that said facts proved that this damage had been caused by several sea perils distinct in character, time, place of occurrence and effects, but failed to prove that any one of them had caused damage sufficient to justify an abandonment.

"I reserve this question for the court. If the court should be of opinion that it is necessary for the plaintiffs to prove that damage to that extent had been caused by any one of such perils, the parties agree that the case is to be recommitted to the auditor, with liberty for either party to produce further evidence upon this point; otherwise the parties agree to judgment for the plaintiffs in each case for total loss of ship and outfits, unless a different result shall be required by the decision of the other questions of law herein.

"2. The plaintiffs contended that a total loss on whaling outfits had occurred because they followed the loss of the ship; and that, if there was a constructive total loss of the ship at or beyond Honolulu, the outfits also were constructively totally lost if duly abandoned.

"Honolulu is a whaling port of about ten thousand inhabitants, where whaling outfits can be bought and sold.

"The only other evidence on this point, except that relating to the loss of the ship and the breaking up of the voyage, was that of William H. Taylor of New Bedford, who testified, against the defendants' objection, that he had been forty years in the insurance business at New Bedford, and had for many years followed the business of an adjuster of marine insurance losses on whaling risks at New Bedford; and that, when a constructive total loss of a whale-ship occurred abroad in the prosecution of her voyage, the outfits had been deemed to follow the ship and to be constructively totally lost also, and the adventure was broken up, and that losses on outfits had always been so adjusted.

"The defendants contended that proof of damage to the ship sufficient to make a constructive total loss of ship, and proof of abandonment of ship and outfits, did not show a total loss of outfits, either constructive or absolute; and that the contract could not be controlled by the proof of usage contained in the testimony of Taylor, or of usage if proved.

"The auditor finds that Taylor's evidence, if competent, is to be taken to be true in point of fact, and on his evidence that the usage is as stated; and refers the admissibility and effect thereof to the court, and also the question of law as to the loss of outfits.

"3. The only statement of loss or adjustment presented to the Commercial Insurance Company prior to the suit against it was a statement of total loss of ship and outfits, with proper statement of salvage and the charges, and a statement of the amounts due on each policy and against each office, and was in proper form as a total loss or constructive total loss statement; but it did not purport to be a statement of a partial loss. It was proved that the Commercial Insurance Company never called on the plaintiffs for any further specification, information or detail as to the loss or abandonment, or even prior to the suit intimated to them any alleged deficiency therein, or in any papers or preliminaries, or ever offered to pay...