Watson v. Providence Washington Ins. Co.

• Decision Date: 09 August 1952
• Docket Number: Civ. No. 317.
• Citation: 106 F. Supp. 244
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: WATSON v. PROVIDENCE WASHINGTON INS. CO.

106 F. Supp. 244

WATSON v. PROVIDENCE WASHINGTON INS. CO.

Civ. No. 317.

United States District Court E. D. North Carolina, New Bern Division.

August 9, 1952.

H. P. Whitehurst, R. E. Whitehurst, New Bern, J. F. Duncan, Beaufort, for plaintiff.

Joyner & Howison, Raleigh, for defendant.

GILLIAM, District Judge.

The suit is for recovery for loss of plaintiff's vessel, the Bertie Kay. Upon close of plaintiff's evidence, defendant moved for dismissal under Rule 41(b), 28 U.S.C.A. and decision was reserved. At the close of all the evidence the motion was renewed.

The Bertie Kay was a Government LCM, constructed of steel in 1945, designed for use by the Navy in landing troops and equipment on beaches; she was 50 feet in length and 13 feet in width. The vessel was purchased by plaintiff in the spring of 1949, and was immediately pulled out on a railway, where the bottom was checked and painted. The vessel was then equipped for hauling seafood by adding a pilot house, a mast with rigging on each side to hold up the mast, and a derrick. The plaintiff later sealed the landing ramp by welding, as such facility would not be needed. Later, and before insurance was obtained, the Bertie Kay, was hauled and certain repairs made, including repairs to stop a leak in the stern below the water line. This was the last time any one saw the exterior hull below the water line. The Bertie Kay was used by plaintiff during the shrimp and oyster seasons of 1949, and during the shrimp season of 1950 from about June 15 until it was lost.

On the 30th of June, 1950, plaintiff insured the vessel with defendant in the amount of $10,000 for a period of one year. On September 14, 1950, it sank in Pamlico Sound in fair weather and on calm water, when about three hours out, six or seven miles from land. The evidence discloses that the vessel was dry when it left the dock and no untoward incident occurred between that time and the sinking, and so the cause of the sinking is unknown. The master, who was alone on the vessel, testified: "One of the motors cut off; I raised the hatch and saw the water was up to the height where you pour water in the motors, close to three feet from the bottom of the boat * * * I started the pump, but it wouldn't work; then the other motor cut off; there was nothing to do but wait * * * The vessel stayed up thirty-five to forty minutes after I first discovered the water; I do not know how long before that there was water in the engine compartment and I do not know what caused it to get in it." Efforts to raise the Bertie Kay failed, and the hull has not been inspected since the occurrence. The parties agree that the value of the vessel was $15,000.

While the evidence with respect to the seaworthiness at the inception of the risk on June 30, 1950, is not impressive, it is sufficient to justify a finding of seaworthiness on that date. It is refuted only by the fact that the vessel sprang a leak and sank on calm water and in fair weather in the absence of any incident on its last voyage to which the happening may be reasonably attributed.

The policy insures against loss resulting from "perils * * * of the seas * * *" and "all other like perils, losses and misfortunes that have or shall come to the hurt, detriment or damage of said vessel;" and it further insures against "loss of or damage to hull or machinery directly caused by * * * any latent defect in the machinery or hull".

First, as to coverage of perils of the sea and "all other perils, losses, and misfortunes". The quoted words do not convert the policy into an "all risks" policy. As stated in Union Marine Insurance Co. v. Stone & Co., 7 Cir., 15 F.2d 937, 939: "The words `all other perils, losses, and misfortunes' cannot enlarge the perils insured against. Used as they are, they cover only risks which are of like kind to those previously enumerated and none other."

The burden, unquestionably, in a case like this, rests upon the insured to show that loss was caused by a peril insured against. "The burden of proof * * * is upon the libelant to show that the loss occurred by perils of the seas * * *." Kelly, Weber & Co. v. Franklin Fire Insurance Co., D.C., 43 F.2d 361, 363. In the opinion in this case the Court also states: "From this wording it is clear that the policy does not cover all perils which may overtake the venture on the seas, but only those which are the direct result of actual perils of the seas."

So, what are "perils of the sea" within the meaning of the policy? In Hazard, Admr. v. New England Marine Insurance Co., 8 Pet. 557, 8 L.Ed. 1043, the Supreme Court said: "In an enlarged sense, all losses which occur from marine adventures may be said to arise from perils of the sea, but the underwriters are not bound to this extent. They insure against losses from extraordinary occurrences only, such as stress of weather, winds and waves, lightning, tempests, rocks, etc. These are understood to be the `perils of the seas' referred to in the policy, and not those ordinary perils which every vessel must encounter." There are many other cases to the same effect.

Even if it be true that the Bertie Kay was seaworthy at the inception of the risk, the plaintiff cannot recover unless the sinking resulted from a peril insured against. If the cause was inherent weakness, or resulted from wear and tear, or general unseaworthiness, the loss may not be attributed to a peril insured against. Appleman, Insurance Law and Practice, Vol. 4, Sec. 2689.

In my opinion, according to the preponderance of authorities, the insured ordinarily is not entitled to recover under a marine insurance policy when the insured vessel sinks in calm water and fair weather without explanation.

Klein v. Globe & Rutgers Fire Insurance Co., 3 Cir., 2 F.2d 137, 140: "`Even though a vessel is shown to be seaworthy immediately prior to sinking, no presumption exists that the...