WESTERN ASSUR. COMPANY v. Shaw, 3425.

• Decision Date: 27 February 1926
• Docket Number: No. 3425.,3425.
• Citation: 11 F.2d 495
• Parties: WESTERN ASSUR. COMPANY OF TORONTO, CANADA, v. SHAW.
• Court: U.S. Court of Appeals — Third Circuit

11 F.2d 495 (1926)

WESTERN ASSUR. COMPANY OF TORONTO, CANADA, v. SHAW.

No. 3425.

Circuit Court of Appeals, Third Circuit.

February 27, 1926.

Everett H. Brown, Jr., of Philadelphia, Pa., for appellant.

Willard M. Harris, of Philadelphia, Pa., for appellee.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

DAVIS, Circuit Judge.

This was an action to recover on a contract of maritime insurance against the Western Assurance Company for the total loss of the barge Holly, while moored at a wharf in Chester, Pa. She was insured "against the adventures and perils of the harbors, bays, sounds, seas, rivers," etc. She was loaded with three large boilers, weighing 60 tons each, which she was to take to Norfolk, Va. They were lying in the middle of the barge, lengthwise and end to end. On the night of December 18, 1919, she listed to the starboard and sank early the next morning. When she listed, the boilers rolled to starboard and caused or hastened her sinking.

The learned trial judge found that "the final plunge was due to the swell of a steamer breaking over the part of the deck, which served as a washboard and filling her," that this was a peril against which she was insured, and so decreed that the respondent pay for the loss sustained. The case is here on appeal.

The insurance company urged, as a defense in the District Court and here, that the libelant did not establish a loss by "perils of the seas" against which the company insured, and that the proximate cause of the loss was the unseaworthiness of the boat.

In order to recover, it is necessary for the libelant to bring his claim for loss within the provisions of the policy and establish that the loss was caused by one of the perils against which the barge was insured. Swan v. Union Insurance Company, 16 U. S. (3 Wheat.) 168, 4 L. Ed. 361; Soelberg v. Western Assurance Co., 119 F. 23, 55 C. C. A. 601. It is difficult to give a definition which will neither be too narrow nor too broad, of the phrase, "perils of the sea." In defining it, courts have used various expressions which cannot be easily reconciled. The learned trial judge defined a "peril of the sea" as "any threatening danger from the sea," the "operative cause," "the efficient cause," "the causa causans." In an enlarged sense all losses from maritime adventures arise from perils of the sea, but such losses do not come under this phrase within the meaning of maritime insurance policies. "Perils of the sea" against which underwriters insure are confined to extraordinary occurrences, such as stress of weather, winds and waves, lightning, tempests, rocks, etc. Hazard v. Insurance Co., 33 U. S. (8 Pet.) 557, 584, 8 L. Ed. 1043. If a loss arises from the ordinary circumstances or wear and tear of a voyage, the insurer is not liable because a seaworthy vessel is supposed to endure usual and customary occurrences. The words are therefore used to describe abnormal causes and extraordinary circumstances. Coles v. Insurance Company, 6 Fed. Cas. No. 2988, page 65; Moores v. Louisville Underwriters (C. C.) 14 F. 226; Nord-Deutscher Lloyd v. President, etc., of North America, 110 F. 420, 49 C. C. A. 1.

The testimony by which libelant sought to establish that a steamer in fact passed which might have produced a swell is very unsatisfactory. By leading questions, Nicholein A. Delegeorgen, captain of the barge, was led to say that waves from a passing steamer caused the barge to roll. But, on the contrary, he said again and again that he did not see any boat or anything on the river at that time.

Assuming, however, that the swell from a passing steamer did cause the barge to roll, the further question arises: Was it a "peril of the sea," within the meaning of the policy? Was it an extraordinary, abnormal occurrence against which the insured could not protect...