Wong v. Utah Home Fire Insurance Company

• Decision Date: 03 November 1958
• Docket Number: Civ. No. 1571.
• Citation: 167 F. Supp. 230
• Parties: William P. WONG, Plaintiff, v. UTAH HOME FIRE INSURANCE COMPANY and Julian R. Yates, Defendants.
• Court: U.S. District Court — District of Hawaii

167 F. Supp. 230

William P. WONG, Plaintiff, v. UTAH HOME FIRE INSURANCE COMPANY and Julian R. Yates, Defendants.

Civ. No. 1571.

United States District Court D. Hawaii.

November 3, 1958.

Masanori Kushi, Hilo, Hawaii, for plaintiff.

Allen M. Stack, Honolulu, Hawaii, for defendant Utah Home Fire Ins. Co.

Eugene H. Beebe, Honolulu, Hawaii, for defendant Julian R. Yates.

HALL, District Judge.

The within action was commenced in the Circuit Court of the Territory of Hawaii as an action in personam against the defendant Utah Home Fire Insurance Company. On Motion of Utah, it was removed to the United States District Court under 28 U.S.C. § 1441. The grounds asserted for removal were that jurisdiction existed on account of diversity of citizenship between plaintiff and defendant Utah, and the case was one in admiralty.

After answer, plaintiff moved to join as a defendant an individual, Julian R. Yates, concerning whom there was no diversity of citizenship. In the Brief in support of its objection to the addition of Yates as a party, by amendment of the Complaint, defendant Utah did not touch upon the point that the court had jurisdiction of admiralty, but argued against such amendment solely on the ground that the lack of diversity divested the court of jurisdiction.

The court, after hearing arguments of parties, made an order granting leave to amend the Complaint joining Yates, after which the Complaint was amended, Yates was served, and a Motion to remand, or in the alternative, to dismiss, as to defendant Yates, was made, which was denied by the court.

The Order of the court permitting the joinder of Yates, and denying the Motion to remand is the law of the case, and it must be accepted as such. The Order was made by another Judge of this court, and I should add in passing, that I concur in his conclusions in respect to both matters.

The material facts, either as admitted by stipulation or as shown by a preponderance of the whole evidence, are: that the plaintiff was at all material times lawfully in occupancy and possession of certain private property known as the Hoakimau Fish pond in the City of Hilo, Hawaii; the pond is partially fed by a fresh water spring, is separated from the Waiola river by an uncemented stone wall about four feet thick, and the water in the pond ebbs and flows with the tide; the property consists of about two and one-half acres of land, and the fish pond covers about two acres, and at all material times is and was used by plaintiff for growing mullet and aholeko, and harvesting them for market; the fish are stocked and are not spawned in the pond; the fishing vessel Kamaka was owned by defendant Julian R. Yates on and before March 9, 1957; on that date a tidal wave struck the Island of Hawaii in the port of Hilo in the Waiola river which is adjacent to the fish pond; as a result of the tidal wave, the vessel Kamaka, which was then tied up at the public pier approximately one-half mile from plaintiff's premises, was torn loose from its moorings, and was finally lodged in plaintiff's fish pond where it has since remained; no written claim of loss was made by Yates to Utah, but oral claim of loss was made on March 10, 1957, immediately after the tidal wave, to the broker who had placed the policy, and on that basis, defendant Utah, between March 10 and March 12, 1957, appointed a Marine surveyor, pursuant to the oral notice of loss, who on March 12, 1957, surveyed the wreck and reported to Utah on March 18, 1957, that the Kamaka was a constructive total loss; on the basis of that report, defendant Utah, on March 19, 1957, under the terms of its Marine Hull Policy No. 8367 and Renewal Policy No. 8221 in the principal sum of $10,000, paid to defendant Yates the full amount of $10,000 as called for in the policy, at which time defendant Yates executed a receipt providing, among other things, as follows:

"In consideration of the payment of $10,000 by the Utah Home Fire Insurance Company, it is hereby agreed and accepted that the full limit of Policy No. 8367 has been paid as a result of the Tidal Wave of March 9, 1957, and further that any salvage on said vessel is due to Utah Home Fire Insurance Company.";

on April 25, 1957, defendant Yates filed an affidavit to the effect that at the time of the loss of the Kamaka on March 9, 1957, he was then the sole owner of the Kamaka, and the only insurance in effect at the time of the loss was the above-mentioned policy with Utah Home Fire Insurance Company; on or about March 15, 1957, the plaintiff made an oral request to defendant Yates to remove the boat from his fish pond; Yates then had an offer by the owner of another boat to pull the wreck of the Kamaka from plaintiff's fish pond free of charge, but was advised by the Marine surveyor employed by defendant Utah (whom I hold to be an agent with full authority to act for Utah) that he had no right to do so as the boat was the property of Utah, and upon Yates' request to go upon the vessel and recover certain valuable gear, he was again advised by Utah that he had no authority to do so as the boat was the property of Utah.

Thereafter, the plaintiff, through his counsel, demanded of Alexander & Baldwin, Ltd., that the boat be immediately removed. That Corporation had appointed the Marine surveyor, and it is stipulated it was at all times the duly appointed, acting and authorized Agent of Utah, and that all acts and things done by it were done as such Agent, and binding on the defendant Utah. Later, on May 11, 1957, plaintiff again, in writing, demanded that they immediately remove the wreck of the Kamaka. At that time Alexander & Baldwin merely acknowledged receipt of the letter, and asked if plaintiff would accept the Kamaka if it were offered to him; in oral conversation between plaintiff's counsel and defendant Utah's agents, they offered to sell the wreck of the Kamaka to plaintiff for a consideration. The formal refusal by the plaintiff to buy the boat or to "accept it for free" was communicated to Utah by letter of plaintiff's counsel on May 27, 1957, to which they replied that they did not have the responsibility for removing the Kamaka from the fish pond. Thereupon, plaintiff filed this suit.

Shortly after the tidal wave and while in the office of Utah agents in Honolulu, Utah agents offered to sell the Kamaka to Yates for $200.

At the outset, it should be noted that the parties concede that the tidal wave which broke the Kamaka loose from its moorings and deposited it upon plaintiff's property was an act of God, and was done without privity and without knowledge of Yates, and without privity and knowledge of defendant Utah. But it should also be noted that the plaintiff seeks no damages for the injury done to his fish pond at the time the tidal wave deposited the Kamaka in his fish pond. At that time it broke the stone wall which was between plaintiff's fish pond and the Waiola river, which had been built by plaintiff in 1954 and 1955 at the cost of 3300 man-hours of labor and 20 truck loads of stone; and plaintiff, at the cost of 800 man-hours of labor, had finished off the sides of the pond by digging up mud and placing it on the banks. The plaintiff commenced to stock the pond with fingerlings in January, 1955. It takes from two and one-half to three years for the fingerlings to grow to marketable size which is about one pound.

After plaintiff's demands on both Yates and Utah to remove the wreck of the Kamaka, plaintiff re-constructed his stone wall, as it is necessary to have such a wall to prevent the mullet from swimming into the Waiola river and being lost from his fish pond.¹

What the plaintiff seeks is the removal of the vessel as being a trespass after March 10, 1957, and damages for the failure of defendants to remove it. He does not seek any damages for the destruction of his stone wall, or the loss of fish, or other damage resulting from the tidal wave.

Both defendant Yates and defendant Utah, in their answers, deny they were the owner of the vessel, and claim that it had been abandoned. Whether or not there would be liability for the trespass is not necessary to determine at this point as, under the evidence in the case, the court cannot sustain the claim that the vessel was abandoned. Defendant Yates executed his receipt, with the transfer to Utah, of the salvage rights, as above-mentioned. It is held in Craig v. Continental Insurance Company, 141 U.S. 638, 12 S.Ct. 97, 99, 35 L.Ed. 886, where an Insurance Company took possession of a vessel under its policy of insurance and paid a total loss, that the ownership of the vessel by the Insurance Company resulted from the abandonment by the owner to the Insurance Company and "was of the same character as would have been her ownership by any person who had purchased her in her then condition from the former owner." To the same effect is The Tashmoo, Vol. 11-1937 A.M.C. 1536.

The defendant Yates is not now and has not been the owner of the vessel since March 19, 1957, when the defendant Utah paid Yates the full amount of the policy and thereafter exercised dominion over said vessel by offering to sell it to Yates and by offering to sell it to the plaintiff, and by refusing to let Yates recover certain gear from the vessel, and by refusing to let Yates remove the vessel from the fish pond. Since that date, defendant Utah has been and still is the owner of the vessel.

There is no showing of any damage to the plaintiff for trespass between the date of the tidal wave on March 9, 1957, and the date of the transfer of ownership to the defendant Utah on March 19, 1957, and in any event, such damage would be de minimis. Judgment must be against the plaintiff and for the defendant Yates, for the foregoing reasons.

The defendant Utah has raised the question of its right to limitation of liability to the value of the wreck of the Kamaka, under 46 U.S.C.A. § 183 et seq., in its Answer.

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