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3 F.(20) 1006 Rep. 292, it was held that, in determining be deprived of such use and occupancy. the amount of damages occasioned an in. The statement, "not exceeding $150 for each surance broker through loss of commissions and every working day,” means that plainresulting from failure of defendant to take tiff could not recover a sum the total of out fire insurance “to not less than the mar- which would exceed $150 per day for each ket value of the 'use and occupancy of working day within the period from Octocertain property" as agreed, it was improp- ber 1, 1922, to April 1, 1923, if by reason er to permit testimony showing the net of fire or lightning it should have been deyearly profits made by defendant in his busi- prived of the use and occupancy of the ness.

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 The thing insured was not the possibility that the question presented is whether un- of profit or loss, nor profits which might der the peculiar wording of the policies have been earned, but that which was inthey are to be considered as "valued” poli- sured by defendants was the right of plaincies or contingent policies. I am of opin- tiff to the use and enjoyment of its properion they must be construed as "valued” pol- ty; in other words, it was the privilege icies.

which plaintiff desired to have to use its [2] As held in Michael v. Prussian Nat. property, the right to endeavor to earn profIns. Co., supra, and numerous authorities its. That right or privilege was insured, which could be cited on this question, where regardless of whether such right or priviambiguity exists in the terms of an insur- lege might or might not have been remuance policy, or where the terms have no ac- nerative. Plaintiff did not obtain insurance cepted meaning and are doubtful, they against the possibility of its winnng or losshould be construed most favorable to the ing in the operation of its property. If insured. It appears the principal differ- such had been its intention, it would doubtence in the Michael Case and the instant less have had the policy so worded as that case is that in the former the provision of it would have covered a loss, whether the the policy was "this company shall be lia property had been destroyed or not. An ble at the rate of $4.77 per day for each insurance against loss of profits would be working day of such prevention," while in a totally different contract from insurance the latter the policies provide that in the guaranteeing the right to the use and enevent of destruction of the property, "so joyment of property. Furthermore, the that the assured is entirely prevented from great difficulty of endeavoring to arrive at operating, this company shall be liable for any reasonable basis whereby possible prof. not exceeding $150 for each and every its of a business such as that in which working day.

plaintiff was engaged might have been es[3] In the one instance, the amount is timated for any particular period is manispecified at a fixed sum. In the other, it is fest. In the policies in question no such specified as an amount not exceeding a fixed uncertainty was contemplated, nor is such sum for each working day wherein the as- possibility embraced within the contracts.

As above stated, the undisputed proof is sured might be deprived of the use and occupancy of the property within the pre- have been replaced within the time limit of

to the effect that the buildings could not scribed period. In construing the policy, the insurance. Such being true, plaintiff is the intention of the parties must govern, entitled to recover ratably from the defendIt would seem that the only fair natural ants, so that the total sum recovered does construction to be placed upon the clause not exceed an amount computed at $150 per in question is that it was the intention that day for the number of working days bethe assured should receive for total de- tween October 16, 1922, and April 1, 1923. struction, or such destruction as totally de- Plaintiff is also entitled to interest on this prived the assured of the use and occu- sum from the date of April 3, 1923, this pancy of the property, the amount of $150 being the day upon which it was agreed per day for any such period as it should payment was finally refused.

3 F.(20)-64


ran into fog, which continued more or less Petition of BOSTON & YARMOUTH S. S. co., through the night, and in the early mornLimited.

ing, as she approached the Nova Scotia (District Court, D. Massachusetts. February Yarmouth is a little north of east by the

coast, was thick. The course from Boston to 12, 1925.)

compass, and the distance is about 235 miles. No. 2787.

About 90 miles from Boston is a ledge on Shipping w208–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 The navigation of a vessel at sea is un- Lurcher Lightship, about 16 miles from Yarder the absolute control of her master, and the mouth; i. e., about 130 miles from the buoy. fact that her owner may have been advised by previous trip reports

that the master had vio- At the time this lightship was temporarily lated the rules as to speed in a fog held not to off its station, and a whistling buoy had charge owner with such privity or knowledge been substituted. About 6 a. m. on August as to preclude its limitation of liability for 8th, it being dense fog, the master and the stranding of the ship in a fog through negli- pilot of the North Star' heard what they gent navigation.

took to be this buoy abeam about 2 miles In Admiralty. Petition by the Boston & northward; they did not see the buoy, nor Yarmouth Steamship Company Limited, attempt to see it. The wind was fresh from owner of the steamship North Star, for lim- the south, and the sea was rough, conditions itation of liability. Granted.

which might well have caused them to doubt Charles C. Barton, Jr., of Boston, Mass., whether the buoy would be audible so far to

Charles C. Barton, Jr., of Boston, Mass., windward of it. A sounding of 43 fathoms for petitioner. Jasper N. Johnson, of Boston, Mass., ap- indicated a position near the buoy. The

was reported, which, according to the chart, pearing specially, for claimants.

steamer was thereupon put at full speed MORTON, District Judge. This is a pe

and so remained until the breakers on Green

Island tition for the limitation of liability brought

were sighted, two or three ship by the owner of the passenger steamship lengths away. The disaster was then inevi

table. North Star. It was fully heard in open court. The facts are as follows:

In fact, the steamer had come onto the The North Star was a passenger steamer coast 6 or 7 miles to the south of her asabout 300 feet long, plying between Boston sumed position. According to the chart and Yarmouth, N. S. On the morning of there was not 43 fathoms, nor anything like August 8, 1919, she stranded in a fog on

it, at the point where she must have been Green Island, 6 or 7 miles south of the en

when she sounded and then went ahead the trance to Yarmouth Harbor, and became a

last time. The buoy which her master and total loss. She had on board at the time chief pilot mistook for the Lurcher buoy was about 300 passengers, but fortunately there in all probability the Southwest buoy, and was no loss of life. The damage claimants, she must have passed a short distance to leeby whom the petition is opposed, are Mabel ward of it. F. Dempsey, who was a passenger on the

There was nothing unusual in the condiNorth Star and was, as she says, injured by tions which the steamer encountered on this being thrown from her berth by the im trip; nothing to excuse such a wide error in pact of the collision, whose claim is for per- her course as actually occurred. It stands sonal injuries, and her husband, J. Fred unexplained and is sufficient evidence of Dempsey, whose claim is for loss of consort- negligence in her navigation. ium.

The damage claimant opposes the petition The North Star had been duly inspected upon the ground that the owner was not free and certified by the United States Steam- from personal fault for the disaster and boat Inspection Service in April preceding therefore has no right to limit its liability, the accident. There is affirmative testimony while the petitioner denies that Mrs. Dempthat she was in every respect staunch and sey was injured in such a manner as to make seaworthy and properly manned, equipped, it responsible. These are the two remaining and supplied. There is no testimony, and questions for decision. indeed no serious contention, to the con- At the end of each trip the master handed trary, and I find such to have been the fact. into the owner's office a report card show

The North Star left Boston on what prov- ing, inter alia, the times of departure and ed to be her last trip shortly after 1 p. m. arrival, the weather conditions, whether fogon August 7th. During the afternoon she gy or not, and perhaps the engine speed.

3 F.(20) 1011 Capt. Strout had been on 11 similar trips in at fault would be to abrogate the Limitation this steamer, and each time had passed in of Liability Act (Comp. St. 88 8020-8027) such a card. It does not appear on how as to passenger vessels. Such a result viomany of these trips fog was encountered, lates the purpose of the act. It should be nor to what extent, if at all, he reduced construed, “not narrowly, but in a fair and speed because of it.

liberal manner, to effectuate the evident inThe damage claimant contends that these tention of Congress.” Rogers, J., The 84 · report cards showed that he customarily did H. (C. C. A.) 296 F. 427. “We very much not reduce speed in fog; that the owner was appreciate the danger that the act should thereby apprised of this custom; that, as be cut down from its intended effect by, too the owner did not object to Capt. Strout's easy a finding of privity or knowledge on practice, it inferentially approved it; and the part of owners.” Holmes, J., Capitol that it was therefore personally at fault for Transp. Co. v. Cambria Steel Co., 249 U. the steamer's failure to slow down at the $. 334, 39 S. Ct. 292, 63 L. Ed. 631. time in question.

I find and rule that the petitioner is shown I have great doubt whether the evidence to have been free from personal fault for establishes the facts necessary to the dam- the accident. age claimant's argument. See Deslions v. The evidence leaves me in great doubt La Compagnie Générale Transatlantique, whether Mrs. Dempsey could have been 210 U. S. 95, 123, 28 S. Ct. 664, 52 L. Ed. thrown from her berth by the impact of the 973. But, assuming it does, I am of opinion collision, as she says. Her examination on that the owner was not personally at fault this point was very brief—too brief to do for the disaster. The navigation of a ves- justice to her case. The case may stand sel at sea is under the absolute control of for further hearing on this point, and, unher master. He has to hold a government less the evidence on damages is extensive, license for fitness, and his powers and du- it may be heard at the same time. ties 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

THE BRIMSTONE. statement of the master's position and duties, and Judge Hale's discussion of them in GENERAL CHEMICAL CO. V. ATLANTIC The Kronprinzessin Cecilie (D. C.) 228 F.

REFINING CO. et al. 946, 957. I doubt whether an owner on the (District Court, E. D. Pennsylvania. bridge would have any right to give an or

February 6, 1925.) · der against the master's; there cannot be two

No. 231. captains on the same vessel. No decision

1. Towage On 11 (7) Navigation through has come to my attention in which an own- drawbridge, injuring tow, held negligent. er was held personally at fault for a mas- Where the master of a motor launch, with ter's error in navigation at sea. To warrant a tow, on approaching a bridge at night, gave doing so it must appear either that the own

the signal for opening of the draw, and imme

diately afterward on overtaking tug also sig. er was in reality in command of the vessel,

naled, and an answer was given from the or that the negligent acts were ordered or bridge, and the draw raised, the master of the directed by him. It was said in The Oneida launch was not justified in assuming that the (C. C. A.) 282 F. 238: “The knowledge or

signal from the bridge was in answer to his

signal, and it was negligence to attempt to folprivity that excludes the operation of the

low the tug through without making sure that statute must be in a measure actual, and not

his signal had been heard and understood, and merely constructive. It must be actual, in his owner was liable for an injury to the tow the sense of knowledge or authorization, or resulting from the closing of the draw before immediate control of the wrongful acts or

they had passed. conditions, or through some kind of person- 2. Navigable waters On 20 (8)-City held lia. al participation in them." Manton, J., at

ble for negligent operation of drawbridge. page 241. See, too, The Alola (D. C.) 228

A city, as owner of a drawbridge over a

navigable stream, held liable for injury to a tow F. 1006; The Longfellow, 104 F. 360, 45 C.

through the negligence of the bridge operator C. A. 379.

in failing to hear or heed the signal of the towThere is nothing uncommon in the facts

ing vessel. here relied upon to establish fault on the 3. Navigable waters om 20(8)-Duty of those

maintaining drawbridge to see that draw is owner; they would probably apply to most

properly operated. steamers in passenger service; and the prac

A bridge over a navigable stream is an obtical effect of holding the owner personally struction to navigation, and when the federal

authorities authorize the construction of a the draw and maintaining it at sufficient bridge with a draw, the duty is cast on those height to permit the barge to pass beneath maintaining it to see that the draw is properly operated.

it. There was no claim of fault on the part

of the Brimstone. The barge, which was In Admiralty. Suit by the General

without motive power and without rudder, Chemical Company, owner of the barge

was lashed to the port side of No. 11. Her · Brimstone, against the Atlantic Refining lights were properly set, and her master Company and the City of Philadelphia. De and crew had no duty to perform in her

navigation. cree for libelant against both respondents, ånd damages divided.

[1] The entire controversy centers upon

the question as to what signals were sounded Conlen, Acker, Manning & Brown, and by the No. 11, the Churchman, and the Everett H. Brown, Jr., all of Philadelphia, bridge, and the measure of care required in Pa., for libelant.

view of the signals. The regulations of the Howard M. Long, of Philadelphia, Pen, War Department under the River and Harfor respondent Atlantic Refining Co.

bor Act of August 18, 1894 (28 Stat. 338), John Elcock, of Philadelphia, Pa., for

provide: respondent city of Philadelphia.

"When at any time during the day or

night, any vessel, tug, or other craft unTHOMPSON, District Judge. The barge able to pass under the bridge, approaches it Brimstone, owned by the General Chemical with the intention of passing through the Company, on February 13, 1924, was in tow draw, the signal for the drawbridge to be of motor launch No. 11, owned and operated opened shall be three blasts of a whistle or by the Atlantic Refining Company, proceed- horn blown on the vessel or craft. If the ing up the Schuylkill river, loaded with a draw is ready to be opened immediately cargo of acid to be delivered at the plant when the signal is given on the vessel or of the Atlantic Refining Company on the craft, the signal shall be answered immeSchuylkill river at Philadelphia above the diately by two blasts of a whistle or hom Passayunk avenue bridge. The Passayunk blown on the bridge." avenue bridge is a drawbridge owned and While the evidence is in part conflicting, operated by the city of Philadelphia, and I find from the pleadings and the testimony on the date in question the draw was in of witnesses so situated at the time as to charge of a drawbridge operator in the em- be best qualified to observe the position of ploy of the city. At about 7:45 p. m., as the vessels with respect to the bridge and motor launch No. 11 approached the bridge, the signals given that the facts are as folit was raised by the operator and the tug, lows: F. A. Churchman, which was without a tow, It was a clear, moonlight night, with high came up and passed the No. 11 and the tide, so that the water at and about the Brimstone on the starboard side and pro- bridge was slack. When the No. 11, with ceeded through the draw. As the No. 11, the barge in tow, was 500 or 600 feet bewith her tow, attempted to pass through low the bridge, she gave a signal of three the draw, it was lowered, and both its masts, blasts with her air whistle, to which the 47 feet in height from the deck, collided bridge did not respond. She then blev with the draw. The foremast was torn out, three more blasts on her air whistle, when and the aftermast broken. The foremast, in about 150 feet from the bridge, proceeding falling, did considerable damage to the at half speed. The Churchman, when the barge.

first signal of the No. 11 was given, was The libelant claims that the collision be- considerably astern of her, but when the tween the drawbridge and the masts of the second signal had been given by the No. 11 Brimstone, with the consequent damage, was the Churchman had overtaken her, so that due to the negligence of the master of motor her bow overlapped the stern of the No. 11. launch No. 11 in attempting to proceed Immediately after the second signal of the through the drawbridge without having re- No. 11, the Churchman blew three blasts ceived a signal to do so from the operator upon her steam whistle, and the operator on in charge of the bridge, and that the city the bridge blew two blasts. The Churchof Philadelphia was negligent in causing the man, which was without a tow, proceeded at collision, in that the drawbridge operator full speed past the No. 11 and her tow, and was incompetent and inattentive to his du- passed safely under the bridge, which had ties, in failing to observe signals blown by been raised to about 50 degrees. The drawmotor launch No. 11, and failing to operate bridge operator, who was in his watch box the draw in accordance therewith, by raising upon the bridge, eating his lunch, when the

8 F.(20) 1011 signal of the Churchman was given, blew tention to signals and in vigilance in attenthe two blasts of the whistle upon the bridge, tion to his duties in the operation of the raised the draw, and then immediately low- draw. He testified that, when he heard the ered it, without paying any attention to the signal of the Churchman, he was sitting in approach of the No. 11 and her tow. If his watch box with the door open, eating his negligence is to be attributed to the master lunch; that he recognized the Churchman's of the motor launch, it must be based upon whistle, with which he was familiar, as he his failure to exercise due care in proceed- had frequently heard it on former occasions; ing without assuring himself that the two- that he did not hear the signals of the moblast signal from the bridge was in response tor launch, and that his answer was to the to his signals.

signal of the Churchman; and that, when It is contended by counsel for the Atlantic she went through the draw, he did not know Refining Company that the master of the of the approach of any other vessel. motor launch was justified in assuming that admitted, however, seeing two white lights the signal for the bridge was in answer to above on a vessel, which would indicate the his signals, notwithstanding that, in the in- approach of a tug with a tow. I am not terval between his last signal and that of satisfied to accept his statement that he did the Churchman, there was no response from not hear the signals of the No. 11. They the bridge. The fact that the claim of his were beard by a witness upon a vessel lyexercise of due care under the circumstanc- ing below the bridge, by the Atlantic Refines is based upon that assumption indicates ing Company's guard from his station on that he was acting upon a guess, rather than shore, and by all of the other witnesses, and & reasonable conclusion from the circum- it is incredible that, from the same location stances. He was fully aware of the ap- at which he heard the Churchman's whistle, proach of the Churchman, and saw her pass he heard neither signal of No. 11. his motor launch and tow and speed ahead [3] A bridge across a navigable stream is through the draw after the answering signal an obstruction to navigation, and, when the had been given. There was no current or federal authorities authorize the constructide to carry him ahead, and he should not tion of a bridge with a draw, the duty is have proceeded until reasonably certain cast upon those maintaining the bridge to that his signal had been observed and an

see that the draw is properly operated, so swered by the drawbridge operator, by re

as to remove the obstruction to navigation in peating his signal, and, if necessary, stop- such manner that maritime commerce may ping what way he had by immediately reversing his engine and assuring himself that be safely and expeditiously carried on. Mun

roe v. Chicago, 194 F. 936, 114 C. C. A. the draw was open for the motor launch and barge before attempting to pass.

572; Conklin v. Norwalk (C. C. A.) 270 F. It could not reasonably be concluded, 68. The negligence of the drawbridge operwhen the bridge gave the one signal of two

ator is apparent, in that he paid no attenblasts, that that was the signal for both ves

tion to the signals of the No. 11, which he sels to pass through; but there would be a must have heard or could have heard, if reasonable assumption to the contrary that properly attending to his duties, and in lowthe signals of the motor launch and her ering the bridge, after seeing an approachpresence had not been observed. There be- ing vessel with two white lights above, and ing ground for assumption either way, he when, in the exercise of ordinarily careful cannot be excused because he adopted the observation, he must have known that the one assumption rather than the other, when, vessel was not the Churchman, which had in the exercise of ordinary care, he could passed through. have made certain that the draw was open My conclusion, therefore, is that the city for him as well as for the Churchman. of Philadelphia was in fault through the

My conclusion, therefore, is that there was failure of its employee to exercise due care such negligence on the part of the master under the circumstances. The case is thereof motor launch No. 11, under the circum- fore one of fault upon the part of both restances, as was a contributing cause of the spondents, and a decree may be entered for collision.

the libelant against both respondents for [2] The question remains whether the divided damages and costs, with reference to city of Philadelphia is to be charged with a commissioner to ascertain and report the fault through the negligence of the draw- damage to the Brimstone, unless the parties bridge operator. The evidence convinces me shall agree upon the amount of damage that he did not exercise due care in his at- without such reference.

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