The Livingstone
| Decision Date | 08 October 1900 |
| Docket Number | 3,664. |
| Citation | 104 F. 918 |
| Parties | THE LIVINGSTONE. |
| Court | U.S. District Court — Western District of New York |
Harvey D. Goulder, for libelants.
William B. Cady, for interveners.
C. E Kremer, F> H> Canfield, and Harvey L. Brown, for respondents.
This is a cause of collision between the steamer Grand Traverse owned by the Lackawanna Transportation Company, and the steamer Livingstone, owned by the Michigan Navigation Company. Both steamers were found in equal fault, and an interlocutory decree was rendered on January 3, 1899, that the loss and damage accruing to the steamers Livingstone and Grand Traverse, respectively, be apportioned between them in equal moieties. The Livingstone, 87 F. 769. The libel was filed by the Lackawanna Transportation Company, owner of the Grand Traverse, and by the Delaware, Lackawanna & Western Railroad Company as owner of 679 gross tons of nut coal and as bailee in divers other merchandise shipped upon the said propeller Grand Traverse. The Grand Traverse was chartered by the Delaware, Lackawanna & Western Railroad Company for the season of navigation on the Great Lakes for 1896. The libel upon which the suit is based was filed in the joint names of the Lackawanna Transportation Company and Delaware Lackawanna & Western Railroad Company, and a joint right of recovery is averred therein. The Livingstone was seized under this libel, and was bonded by the Fidelity & Deposit Company of Maryland as surety. The bond runs to the libelants above named jointly and severally in the sum of $75,250, to be paid to the said libelants, their and each of their successors or assigns, and conditioned that, if the claimant of the Livingstone shall well and truly abide and answer the decree of the court in said cause of libel without fraud or other delay, then the obligation to be void. The answer of the Livingstone to the libel denies fault on her part, and avers that the collision was caused wholly on account of the fault negligence, and improper navigation of the Grand Traverse. The answer also alleges that the Livingstone suffered damages to the extent of $6,850, which constitutes an enforceable lien against the Grand Traverse, and prays that the libel in the cause may be dismissed, and that such other and further order may be made as will protect the just rights of the respondent. After issue was joined, the Indemnity Mutual Marine Assurance Company, Limited, of London, England, filed its petition setting forth that it was the insurer of 679 gross tons of nut coal shipped by the Delaware, Lackawanna & Western Railroad Company, and consigned to said Delaware, Lackawanna & Western Railroad Company; that the insurance on coal was against all perils that should come to the damage of said property; that the coal was totally lost, and was abandoned to the petitioner, the insurance company, and the amount insured thereon was paid by the insurance company to the consignee, the Delaware, Lackawanna & Western Railroad Company, and it thereby 'became subrogated to the rights of the libelant the Delaware, Lackawanna & Western Railroad Company, as owner of the coal, against any vessel or person whomsoever on account of the injury and damage resulting to said coal by reason of the collision. ' The petitioner prays that it be allowed to intervene and prosecute its claim against the Livingstone and the sureties upon the bond or stipulation filed in the cause, and the court is asked by the petition to 'decree that the claimant of the Livingstone and the sureties upon its bond pay to your petitioner the loss and damage sustained, with interest. ' An order was accordingly made permitting the petitioner to intervene, and in due time the Livingstone, as required by the order, made answer to the petition, denying, among other things, that she was in fault for the collision, and denying that the Indemnity Mutual Marine Assurance Company has a claim against the owner of the propeller Livingstone and the sureties on the bond and stipulation filed in the cause. After the entry of the interlocutory decree finding both steamers in fault, the Union Marine Insurance Company, Limited, of Liverpool, England, also petitioned to be allowed to intervene as insurers of certain cargo of the steamer Grand Traverse, shipped via the Lackawanna Transportation Company, and consigned to Johannes Bros., of Green Bay, Wis. It alleges that said last-mentioned merchandise was insured in the sum of $813, and that said merchandise was at the time of the collision of the two steamers lost and destroyed; that on payment of the insurance the merchandise was abandoned to the last-named insurance company by the shippers and consignee, and that by the terms and conditions of the policy it became subrogated to the rights of said shippers and consignee against any vessel or person whomsoever on account of the injury and damage resulting to said merchandise by reason of said collision. To this petition the claimants of the Livingstone also made answer denying liability. The interlocutory decree, after finding that both steamers were at fault in bringing about the collision between the said steamers, respectively, and that the loss and damage occurring to said steamers be apportioned between them in equal moieties, decreed further that the question of the amount of damages sustained by said vessels on account of the collision, as well as to the cargo of the steamer Grand Traverse, be referred to a commissioner to take proof respecting said damage, and ascertain and report the amount thereof, together with such proofs, to the court; and that all questions as to the liability of said steamers for the loss and damage resulting from said collision to the cargo of the steamer Grand Traverse be reserved by the court for further consideration until the coming in of the report of the commissioner and the entry of the final decree in the case. Pursuant to the decretal order, the commissioner reported to the court that the parties to the cause entered into a stipulation authorizing and directing him, as such commissioner, to report the damage to libelants by reason of the loss of the Grand Traverse at $37,500, and he does so report accordingly, with interest from the date of the collision, October 19, 1896, amounting to $45,316.17. As to the claim made by the owners of the Livingstone for the loss and damage sustained by that vessel, the commissioner found from a written admission signed by proctors for libelants and for respondent, and from the evidence before him in regard to certain disputed items, that the damage sustained by the Livingstone, with interest, amounts to $7,815.16. As to the claim made by the intervening underwriters on cargo of the Grand Traverse, based on the stipulation of proctors for libelants and for respondents, he finds the damages sustained by them to be as follows: The Indemnity Mutual Marine Assurance Company, Limited, of London, England, the insurer of the coal, with interest, $4,284.60; the Union Marine Insurance Company, Limited, of Liverpool, England, the insurers of merchandise consigned to Johannes Bros., with interest, $955.41. As to the claim for personal effects of the master and crew of the steamer Grand Traverse he finds that their recovery against the Livingstone is limited to one-half of the value in each case of personal effects lost, amounting to $402.99, including interest. In each case interest is computed from the date of the collision at 6 per cent., except as to the claims of the interveners, in whose behalf the computation of interest is from the time of payment by the interveners of the cargo damages. The claimant of the Livingstone, the Michigan Navigation Company, excepts to the report of the commissioner, and the question now to be considered arises upon the exceptions to the commissioner's report.
It is insisted: First, That the claims for the cargo should be disallowed, because the libel upon which the suit is based was filed in the joint names of the Lackawanna Transportation Company and the Delaware, Lackawanna & Western Railroad Company, and, a joint right of recovery being averred therein, and no new bond having been filed to answer the interveners' claim, the surety cannot be held liable on the bond in the case, as it simply runs to the joint libelants; that the bond obligates the surety company to answer to any claim which the libelants, to whom the bond was given, may establish in this suit, and does not obligate the surety company to answer to the claim of any other person or company. Second. If the underwriters have a right to intervene in the cause, that then they are entitled to recover only one-half of the value of the cargo. Third. If the respondent the Michigan Navigation Company or its surety is liable on account of the cargo loss, it is entitled to recoup one-half the amount over whatever may be allowed to libelants as owners of the Grand Traverse. I cannot accept the interpretation of the office of a bond or stipulation given in admiralty suits insisted on by the respondent. The bond runs to the Lackawanna Transportation Company and the Delaware, Lackawanna & Western Railroad Company, and to each of their successors or assigns. The purpose of the bond was to release the Livingstone from arrest, and the condition of the bond is that the claimant of the ship arrested shall well and truly abide and answer the decree of the court in the cause, without fraud or other delay. The bond was given not only to the libelants in behalf of themselves, but was given to the Lackawanna Transportation Company, as owner of the Grand Traverse, and the Delaware, Lackawanna & Western Railroad Company, cargo owners, or as trustee or bailee, for the owners of portions of the cargo with which the Grand Traverse...
To continue reading
Request your trial
-
Globe & Rutgers Fire Ins. Co. v. Hines
...... general rule is that the underwriter stands in no better. position than the insured, and can have no recovery against. third persons, except such as could have been had by the. insured. Simson v. Thompson, 3 App.Cas. 279, 3. Aspin. 567; The Catskill (D.C.) 95 F. 700; The Livingstone. (D.C.) 104 F. 918. In Joyce on Insurance, vol. 5, Sec. 3538,. p. 5883, the rule is correctly stated as follows:. . . . 'The. insurer stands in no relation of contract or of privity. with such persons. His title arises out of the contract of. insurance, and is derived from the ......
-
THE SHREVEPORT
......The Oregon, 158 U. S. 186, 15 S. Ct. 804, 39 L. Ed. 943; The Beaconsfield, 158 U. S. 303, 15 S. Ct. 860, 39 L. Ed. 993; The T. W. Snook (D. C.) 51 F. 244; The Livingstone (D. C.) 104 F. 918; Mason v. Marine Insurance Co. (C. C. A.) 110 F. 452, 54 L. R. A. 700. . But these same cases recognize that, where a claim is simply for a part of the fund, it is not a new cause of action and the intervention should be permitted. The condition 42 F.2d 537 of ......
- Sullivan's Estate, In re
-
Phoenix Ins. Co. v. United States
......Ed. 594; Wager v. Providence Insurance Co., 150 U. S. 99, at pages 107, 108, 14 S. Ct. 55, 37 L. Ed. 1013; The Potomac, 105 U. S. 630, 26 L. Ed. 1194; Liverpool & Great Western Steam Co. v. Phenix Insurance Co., 129 U. S. 397, 9 S. Ct. 469, 32 L. Ed. 788; The Livingstone (D. C.) 104 F. 918. See also United States v. Middleton (C. C. A.) 3 F.(2d) 384. If Congress had intended to limit the application of the amendment to the then owners of existing causes of action, it could easily have found language adapted to that purpose. Its failure to do so is ......