3 F.(2d) 1006

Rep. 292, it was held that, in determining be deprived of such use and occupancy. the amount of damages occasioned an insurance broker through loss of commissions resulting from failure of defendant to take out fire insurance "to not less than the market value of the 'use and occupancy' of certain property" as agreed, it was improper to permit testimony showing the net yearly profits made by defendant in his busi

ness.

The statement, "not exceeding $150 for each and every working day," means that plaintiff could not recover a sum the total of which would exceed $150 per day for each working day within the period from October 1, 1922, to April 1, 1923, if by reason of fire or lightning it should have been deprived of the use and occupancy of the property for the entire period, or that it The question seems to be one as to which could not recover a sum, the total of which the authorities are meager as it would ap- exceeded the amount of $150 per day for pear the policies are unusual. The particu- each working day for any portion of such lar clause in question in each policy is a prescribed period during which, under the "rider" to each of the policies in question terms of the policy, it might be so deprived but for which rider the policies would ap- of the use and occupancy of the property. pear to be New York standard forms. So that the question presented is whether under the peculiar wording of the policies they are to be considered as "valued" policies or contingent policies. I am of opinion they must be construed as "valued" policies.

[2] As held in Michael v. Prussian Nat. Ins. Co., supra, and numerous authorities which could be cited on this question, where ambiguity exists in the terms of an insurance policy, or where the terms have no accepted meaning and are doubtful, they should be construed most favorable to the insured. It appears the principal difference in the Michael Case and the instant case is that in the former the provision of the policy was "this company shall be lia ble at the rate of $4.77 per day for each working day of such prevention," while in the latter the policies provide that in the event of destruction of the property, "so that the assured is entirely prevented from operating, this company shall be liable for not exceeding $150 for each and every working day.

[3] In the one instance, the amount is specified at a fixed sum. In the other, it is specified as an amount not exceeding a fixed sum for each working day wherein the assured might be deprived of the use and occupancy of the property within the prescribed period. In construing the policy, the intention of the parties must govern. It would seem that the only fair natural construction to be placed upon the clause in question is that it was the intention that the assured should receive for total destruction, or such destruction as totally deprived the assured of the use and occupancy of the property, the amount of $150 per day for any such period as it should 3 F. (2d)-64

The thing insured was not the possibility of profit or loss, nor profits which might have been earned, but that which was insured by defendants was the right of plaintiff to the use and enjoyment of its property; in other words, it was the privilege which plaintiff desired to have to use its property, the right to endeavor to earn profits. That right or privilege was insured, regardless of whether such right or privilege might or might not have been remunerative. Plaintiff did not obtain insurance against the possibility of its winnng or losing in the operation of its property. If such had been its intention, it would doubtless have had the policy so worded as that it would have covered a loss, whether the property had been destroyed or not. An insurance against loss of profits would be a totally different contract from insurance guaranteeing the right to the use and enjoyment of property. Furthermore, the great difficulty of endeavoring to arrive at any reasonable basis whereby possible profits of a business such as that in which plaintiff was engaged might have been estimated for any particular period is manifest.

In the policies in question no such uncertainty was contemplated, nor is such possibility embraced within the contracts.

As above stated, the undisputed proof is have been replaced within the time limit of to the effect that the buildings could not the insurance. Such being true, plaintiff is entitled to recover ratably from the defendants, so that the total sum recovered does not exceed an amount computed at $150 per day for the number of working days between October 16, 1922, and April 1, 1923. Plaintiff is also entitled to interest on this sum from the date of April 3, 1923, this being the day upon which it was agreed payment was finally refused.

THE NORTH STAR.

Petition of BOSTON & YARMOUTH S. S. CO.,

Limited.

(District Court, D. Massachusetts. February

Shipping

12, 1925.)

No. 2787.

The navigation of a vessel at sea is under the absolute control of her master, and the fact that her owner may have been advised by

previous trip reports that the master had vio

lated the rules as to speed in a fog held not to charge owner with such privity or knowledge as to preclude its limitation of liability for stranding of the ship in a fog through negli

gent navigation.

ran into fog, which continued more or less through the night, and in the early morning, as she approached the Nova Scotia coast, was thick. The course from Boston to Yarmouth is a little north of east by the compass, and the distance is about 235 miles. About 90 miles from Boston is a ledge on

208-Owner held entitled to limi- which there is a buoy, which the North Star tation of liability for stranding. duly picked up. Her next mark was the Lurcher Lightship, about 16 miles from Yarmouth; i. e., about 130 miles from the buoy. At the time this lightship was temporarily off its station, and a whistling buoy had been substituted. About 6 a. m. on August 8th, it being dense fog, the master and the pilot of the North Star heard what they took to be this buoy abeam about 2 miles northward; they did not see the buoy, nor attempt to see it. The wind was fresh from the south, and the sea was rough, conditions which might well have caused them to doubt windward of it. A sounding of 43 fathoms whether the buoy would be audible so far to indicated a position near the buoy. The was reported, which, according to the chart, steamer was thereupon put at full speed and so remained until the breakers on Green Island were sighted, two or three ship lengths away. The disaster was then inevi

In Admiralty. Petition by the Boston & Yarmouth Steamship Company, Limited, owner of the steamship North Star, for limitation of liability. Granted.

Charles C. Barton, Jr., of Boston, Mass., for petitioner.

Jasper N. Johnson, of Boston, Mass., appearing specially, for claimants.

MORTON, District Judge. This is a petition for the limitation of liability brought by the owner of the passenger steamship North Star. It was fully heard in open court. The facts are as follows:

The North Star was a passenger steamer about 300 feet long, plying between Boston and Yarmouth, N. S. On the morning of August 8, 1919, she stranded in a fog on Green Island, 6 or 7 miles south of the entrance to Yarmouth Harbor, and became a total loss. She had on board at the time about 300 passengers, but fortunately there was no loss of life. The damage claimants, by whom the petition is opposed, are Mabel F. Dempsey, who was a passenger on the North Star and was, as she says, injured by being thrown from her berth by the impact of the collision, whose claim is for personal injuries, and her husband, J. Fred Dempsey, whose claim is for loss of consortium.

The North Star had been duly inspected and certified by the United States Steamboat Inspection Service in April preceding the accident. There is affirmative testimony that she was in every respect staunch and seaworthy and properly manned, equipped, and supplied. There is no testimony, and indeed no serious contention, to the contrary, and I find such to have been the fact. The North Star left Boston on what proved to be her last trip shortly after 1 p. m. on August 7th. During the afternoon she

table.

In fact, the steamer had come onto the coast 6 or 7 miles to the south of her as

sumed position. According to the chart there was not 43 fathoms, nor anything like it, at the point where she must have been when she sounded and then went ahead the last time. The buoy which her master and chief pilot mistook for the Lurcher buoy was in all probability the Southwest buoy, and she must have passed a short distance to leeward of it.

There was nothing unusual in the conditions which the steamer encountered on this trip; nothing to excuse such a wide error in her course as actually occurred. It stands unexplained and is sufficient evidence of negligence in her navigation.

The damage claimant opposes the petition upon the ground that the owner was not free from personal fault for the disaster and therefore has no right to limit its liability, while the petitioner denies that Mrs. Dempsey was injured in such a manner as to make it responsible. These are the two remaining questions for decision.

At the end of each trip the master handed into the owner's office a report card showing, inter alia, the times of departure and arrival, the weather conditions, whether foggy or not, and perhaps the engine speed.

3 F.(2d) 1011

Capt. Strout had been on 11 similar trips in this steamer, and each time had passed in such a card. It does not appear on how many of these trips fog was encountered, nor to what extent, if at all, he reduced speed because of it.

The damage claimant contends that these report cards showed that he customarily did not reduce speed in fog; that the owner was thereby apprised of this custom; that, as the owner did not object to Capt. Strout's practice, it inferentially approved it; and that it was therefore personally at fault for the steamer's failure to slow down at the time in question.

at fault would be to abrogate the Limitation of Liability Act (Comp. St. §§ 8020-8027) as to passenger vessels. Such a result violates the purpose of the act. It should be construed, "not narrowly, but in a fair and liberal manner, to effectuate the evident intention of Congress." Rogers, J., The 84 H. (C. C. A.) 296 F. 427. "We very much appreciate the danger that the act should be cut down from its intended effect by too easy a finding of privity or knowledge on the part of owners." Holmes, J., Capitol Transp. Co. v. Cambria Steel Co., 249 U. S. 334, 39 S. Ct. 292, 63 L. Ed. 631.

I find and rule that the petitioner is shown to have been free from personal fault for the accident.

The evidence leaves me in great doubt whether Mrs. Dempsey could have been thrown from her berth by the impact of the collision, as she says. Her examination on this point was very brief-too brief to do justice to her case. The case may stand for further hearing on this point, and, unless the evidence on damages is extensive, it may be heard at the same time.

I have great doubt whether the evidence establishes the facts necessary to the damage claimant's argument. See Deslions v. La Compagnie Générale Transatlantique, 210 U. S. 95, 123, 28 S. Ct. 664, 52 L. Ed. 973. But, assuming it does, I am of opinion that the owner was not personally at fault for the disaster. The navigation of a vessel at sea is under the absolute control of her master. He has to hold a government license for fitness, and his powers and duties are to a large extent regulated by law. He is responsible for the proper navigation of the vessel. See The Styria, 186 U. S. 1, 9, 22 S. Ct. 731, 46 L. Ed. 1027, for a strong statement of the master's position and duties, and Judge Hale's discussion of them in The Kronprinzessin Cecilie (D. C.) 228 F. 946, 957. I doubt whether an owner on the bridge would have any right to give an order against the master's; there cannot be two captains on the same vessel. No decision has come to my attention in which an owner was held personally at fault for a master's error in navigation at sea. To warrant doing so it must appear either that the owner was in reality in command of the vessel, diately afterward on overtaking tug also sig

or that the negligent acts were ordered or directed by him. It was said in The Oneida (C. C. A.) 282 F. 238: "The knowledge or privity that excludes the operation of the statute must be in a measure actual, and not merely constructive. It must be actual, in the sense of knowledge or authorization, or immediate control of the wrongful acts or conditions, or through some kind of personal participation in them." Manton, J., at page 241. See, too, The Alola (D. C.) 228 F. 1006; The Longfellow, 104 F. 360, 45 C. C. A. 379.

There is nothing uncommon in the facts here relied upon to establish fault on the owner; they would probably apply to most steamers in passenger service; and the practical effect of holding the owner personally

THE BRIMSTONE.

GENERAL CHEMICAL CO. v. ATLANTIC
REFINING CO. et al.

(District Court, E. D. Pennsylvania.
February 6, 1925.) ·

No. 231.

11(7)

1. Towage Navigation through drawbridge, injuring tow, held negligent. Where the master of a motor launch, with a tow, on approaching a bridge at night, gave the signal for opening of the draw, and imme

naled, and an answer was given from the bridge, and the draw raised, the master of the launch was not justified in assuming that the signal from the bridge was in answer to his

signal, and it was negligence to attempt to follow the tug through without making sure that his signal had been heard and understood, and his owner was liable for an injury to the tow resulting from the closing of the draw before they had passed.

2. Navigable waters 20 (8)-City held liable for negligent operation of drawbridge.

A city, as owner of a drawbridge over a navigable stream, held liable for injury to a tow through the negligence of the bridge operator in failing to hear or heed the signal of the towing vessel.

3. Navigable waters 20(8)-Duty of those maintaining drawbridge to see that draw is properly operated.

A bridge over a navigable stream is an obstruction to navigation, and when the federal

8 F.(2d) 1011