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Sun Mutual Insurance Company v. Ocean Insurance Company/Opinion of the Court

This was a libel in admiralty, filed in the district court of the United States for the southern district of New York by the appellee upon a policy of marine insurance. A decree dismissing the libel was rendered in that court, which, on appeal, was reversed by the circuit court, and a decree entered in favor of the libelant. From that decree the present appeal has been prosecuted. The findings of fact made by the circuit court as the basis of its conclusions of law are as follows:

(1) At the several times hereinafter mentioned, the libelant and the defendant were insurance companies engaged in the business of insuring against losses by perils of the sea. The libelant, to be referred to herein as the Ocean Company, was incorporated under the laws of the state of Maine, and had its principal place of business at Portland, in that state. The defendant, to be referred to as the Sun Company, was incorporated under the laws of the state of New York, and had its principal place of business in the city of New York.

(2) On or about January 19, 1864, the Sun Company issued its open policy, No. 51,564, to the Ocean Company in the usual form for the insurance of cargoes at and from Cuba to Boston or Portland; it being, however, expressly understood and agreed that no risk would be taken under it unless the Ocean Company 'take or have an amount on same risk equal to one-half the amount covered by' the Sun Company. On the ninth of February, 1864, it was agreed in writing, noted upon the policy, that the policy should 'cover such other risks as this (the Sun) company may approve and indorse' thereon. Under this new arrangement the clause limiting the risks to such as the Ocean Company retained an interest in to the extent named, to-wit, an amount equal to one-half that of the Sun, was kept in force; but February 24, 1864, the president of the Sun Company wrote to the Ocean Company as follows: 'We are willing that you be not obliged to retain a half of risk when you do not wish to do so, but we reserve the right to object to amounts returned, which it is not probable will be too great very often.'

A copy of the policy issued, with the indorsements thereon, is printed in the apostles in this case as Exhibit No.

[Reproduction of policy from pages 487-489 intentionally omitted]

A copy of the policy issued, with the expectation that it would be used by the Ocean Company for the purposes of reinsurance, an arrangement for such a business on the part of the company having been made.

(4) December 24, 1863, Charles S. Pennell, as an owner and agent of the ship C. S. Pennell, of 975 tons burden, and then lying in the harbor of Portland, Maine, chartered the whole of the vessel, including the state-rooms in cabin not used by the officers, and deck-rooms not used for the crew or for sails and stores, to Sutton & Co., for a voyage from New York to San Francisco. No cargo was to be received on board except with the written consent of the charterers, and they were to pay 'for the charter or freight,' on the good and proper discharge of the cargo in San Francisco, $26,500, less 2 1/2 per cent. commission. George M. Melcher was at the time master of the ship, and his primage on the freight money, if earned, would have been $1,325. This charter will be referred to as the San Francisco charter.

(5) After the making of this charter the vessel sailed from Portland to New York, and was there put up and advertised by Sutton & Co. as a general ship for San Francisco. That firm at that time represented what was known as the Dispatch line of San Francisco packets.

(6) January 30th, while the ship was in New York, loading under her San Francisco charter, and advertised for that voyage, her master chartered her again to the Peruvian government. By the terms of this charter she was to sail from New York on or before June 1, 1864, to San Francisco, and thence proceed, with all convenient dispatch, to Callao, Peru, and from thence, if on inspection she should be found to be well conditioned for the voyage, to the Chincha islands for a cargo of guano to be taken to Hamburg or Rotterdam. The freight to be paid was at the rate of £4 per ton of 20 cwt. British net weight of guano, subject, however, to a deduction of five shillings per ton, if the vessel was not ready in Callao to proceed to Chinchas by December 15th. This charter will be referred to as the Rotterdam charter.

(7) On the fifth of February, 1864, while the ship was is New York, loading, Charles S. Pannell, a part owner, took from the Ocean Company a policy insuring his interest in the ship for $8,000 against war risks, and his interest in the Rotterdam charter for $8,000 against marine risks on the voyage between New York and the Chinchas. In this policy the duration and locality of the risk was described as 'at and from New York, to, at, and from San Francisco, Callao, and the Chinchas.'

(8) George M. Melcher was at the time owner of one-eighth of the ship, and master. On the twentieth of March he wrote one Sawyer, his agent at Portland, advising that the ship was about ready to sail, and directing that insurance be effected on his interest as follows:

War risk to San Francisco, ship,.... $5,

Charter to San Francisco, $26,500-1/8,. 3,

Primage on same,..................... 1,

Homeward charter from Chinchas, insure out, say,. 1,

tons, at £ 4 to £ 7,000, at

currency rate of exchange, $52,400, my 1/8,. 6,

Primage on same,..................... 2,

Chronometers, Dent, 1883; Negus, 1,261,.

And our effects, clothing, etc.,..... 1,

$19,

In the same letter it was said: 'I think you had better put 5 or $6,000 more marine risk in case I should lose the ship.'

(9) Upon the receipt of this letter Sawyer applied to the Ocean Company for a policy upon Rotterdam charter, primage, and personal effects to San Francisco. In doing so he exhibited his letter of instructions, and explained fully all the circumstances. The risk was accepted, and the policy issued March 23d, in which the risk was described as follows: '$6,550 on charter; $2,650 on primage; and also $1,500 on property on board ship Charles S. Pennell, at and from New York to San Francisco.'

(10) On the same day the Ocean Company insured the master for $3,000 on his interest in the ship during the whole of her voyage, describing the duration and locality of the risk as 'at and from New York to, at, and from San Francisco and Chinchas, with usual liberties at Callao, to her port of advice and discharge in Europe.'

(11) On the same twenty-third of March, the president of the Ocean Company wrote the vice-president of the Sun as follows: ' * *  * I also inclose returns for registry as follows: *  *  * $5,000, ship C. S. Pennell, to San Francisco and Chinchas, war; $5,000 fr. of do. * *  * P. S.-I also inclose an additional return for insurance on charter, primage, and property per ship C. S. Pennell to San Francisco only.'

The returns inclosed in this letter were as follows:

'To the Sun Mutual Insurance Company: Enter on open policy of this company No. 51,564, $5,000 on charter of ship Charles S. Pennell at and from New York to, at, and from San Francisco and Callao to Chinchas.

'Rate, 3 per cent. on board.

'New York, March 23, 1864.

'J. W., V. P. Ocean Ins. Co.

'Per G. A. W., Sec'y.'

'To the Sun Mutual Insurance Company: Enter on open policy of this company No. 51,564, war risk only, $5,000 on ship Chas. S. Pennell, at and from New York, to, at, and from San Francisco to Callao to Chinchas.

'Rate, 3 per cent. on board.

'New York, March 23, 1864.

'J. W., V. P. Ocean Ins. Co.

'Per G. A. W., Sec'y.'

'To the Sun Mutual Insurance Company: Enter on open policy of this company No. 51,564, $6,550 on charter, $2,650 on primage, and $1,500 on property, on board ship Chas. S. Pennell, at and from New York to San Francisco, including war risk.

'Rate, 6 per sent. on board.

'New York, March 23, 1864.

'J. W., V. P. Ocean Ins. Co.

'Per G. A. W., Sec'y.'

The first and second of these returns were for reinsurance on the risks taken for Charles S. Pennell, and the last on account of the risks taken in favor of the master of the Rotterdam charter and personal property on board, from New York to San Francisco. The risk to the vessel, taken in favor of the master at the same time, was not reported to the Sun Company.

(12) Upon the receipt of this letter, with its inclosures, the president of the Sun Company wrote the Ocean Company, under date of March 24th, as follows:

'Your favor of the twenty-third inst. is received, * *  * and returns as stated. Those * *  * on charter per Chas. S. Pennell, $10,700, in conformity thereto. For the marine risk per Chas. S. Pennell to San Francisco, thence to Callao and Chinchas, our regular tariff rate is 4 1/2 per cent.; the war risk is worth the same, but we propose to enter for both marine and war on $5,000 for 4 per cent.'

(13) To this the president of the Ocena Company replied, under date March 26th, as follows;

'Your favor of the twenty-fourth inst. is received. I think, really, considering that you have the risk on charter, primage, and property to San Francisco at full rates, you should take the war and marine to San Francisco and Chinchas on C. S. Pennell at 6 per cent., as there is or will be but little risk in the Pacific after leaving San Francisco. I can have both risks taken at less than these rates. * *  * '

(14) In response to this the vice-president of the Sun wrote, under date of March 28th, as follows:

'Your favor of the twenty-sixth inst. is received with a return, * *  * which is entered in conformity thereto, as have also been the returns of the twenty-third inst., per ship C. S. Pennell.'

(15) The indorsement of these returns upon the open policy was as follows:

March 23. Ship Chas. S. Pennell, N. Y., San Francisco,   Callao & Chinchas

Am'ts. Rates. Prems.

On charter, $5,000. 3 $150 marine

March 23. Ship Chas. S. Pennell, N. Y., San Francisco. Callao & Chinchas

Am'ts. Rate. Prems.

On vessel, New York, San Francisco,  charter, 6,550; 6,393,   war & marine

On vessel, New York, San Francisco,  primage, 2,650; 6,159,   war & marine

On vessel, New York, San Francisco,  property, 1,500;6,090,   war & marine

(16) At the time these returns were made and accepted, the Sun Company had actual knowledge of the San Francisco charter, and had taken risks on cargo shipped on board the vessel to San Francisco under it.

(17) When the returns were made by the Ocean Company to the Sun for acceptance and indorsement, no special mention was made of the Rotterdam charter, and no information was given the Sun Company of what had transpired between the Ocean Company and the agent of the master when the insurance was effected. No allusion was made to the letter of the master to his agent, which was shown the president of the Ocean in connection with the application to that company, and the Sun Company had no other knowledge of the existence of the Rotterdam charter than such as is to be inferred from the correspondence which preceded the acceptance of the risk.

(18) Both the president of the Ocean Company and the vice-president of the Sun Company are dead. The first named died in July, 1869, and the last some time before January 1, 1867.

(19) The ship sailed from New York to San Francisco about the first of April, 1864, having on board a full cargo under the San Francisco charter. Having met with a disaster on the voyage, she put into Rio Janeiro, where she was condemned and sold, and the voyage broken up.

(20) The loss under the risk taken in favor of Charles S. Pennell, both on the ship and Rotterdam charter, was paid by the Sun Company without objection, October 23, 1865, and May 5, 1866.

(21) In due time after the loss occurred, the master filed with the Ocean Company his proofs under his policy on account of the Rotterdam charter and his primage thereon. These proofs were promptly forwarded by the Ocean Company to the Sun, and no objections to their form were ever made. Payment was refused by the Sun Company on the ground that the master was over insured, and also upon the ground that the ship had been fraudulently cast away, and the Ocean Company was advised not to pay the claim on that account.

(22) Pursuant to this advice, payment was refused by the Ocean Company, and in October, 1866, Melcher, the master, commenced suit upon his policy in the courts of Maine.

(23) Of the commencement of this suit notice was immediately given the Sun Company by the Ocean Company, and the Sun Company interested itself in the preparation for defense. An agent of those interested, including another company having a risk upon the voyage, was sent to Rio Janeiro to ascertain the facts in relation to the loss and report. In the mean time the suit upon the policy was suffered to remain in the court without being pressed. At the October term, 1869, the counsel for the plaintiff insisting that something should be done, it was agreed, on behalf of the Ocean Company, that the case should, if possible, be tried at the January term, 1870. In November, or late in October, 1869, the counsel on the part on the part of the Ocean Company visited New York for the purpose of having a personal interview in respect to the case with the officers of the Sun Company. He there met the then vice-president of the company. At the interview which then took place, the points of defense that had been previously suggested by the companies having been discussed, the counsel stated that, in his opinion, they could not be sustained by the evidence, but that he intended to make the point that the Rotterdam charter was not included in the risk as described in the policy. He said, however, that he had been informed by the attorneys who conducted the case for the plaintiff they had extrinsic evidence which would establish the liability and which they expected to introduce. This extrinsic evidence he considered inadmissible, but at the same time said that if admitted the defense to the action would undoubtedly fail. He then informed the Sun Company that upon the presentation of the evidence on the trial he should object to its admission, and he had no doubt the presiding judge, under the practice of that state, would take the advice of the supreme court upon that question before proceeding further. If the evidence was ruled out he expected to succeed in his defense, but if admitted he had little hopes. He did not at that time know precisely what the testimony would be, and he did not communicate to the company the particular facts relied upon.

(24) At the conclusion of the interview he was instructed by the vice-president of the Sun Company to go forward with the defense, and make every point possible. He was paid at the time $100, for which he gave a receipt, as follows: 'NEW YORK, November 2, 1869.

'Received from the Sun Mutual Insurance Company $100, on account of legal expenses and services for defending the Ocean Insurance Company of Portland from claims for loss on charter and primage in case of the ship C. S. Pennell, reinsured by the Sun Mutual Insurance Company for the Ocean Insurance Company.

JOHN RAND.'

(25) At the April term, 1870, the cause came on for trial, and the questions were raised upon the admissibility of the extrinsic evidence, and reported to the supreme court for its opinion. The testimony objected to included the deposition of Sawyer, the agent of the insured, as to what transpired between him and the Ocean Company at the time the insurance was effected; the letter from the insured to Sawyer specifying the risk to be taken, and which was submitted to the company by the agent, as showing the authority under which he acted, and also the Rotterdam charter.

(26) On the sixth of October, 1870, the attorney of the Ocean Company sent the Sun Company a copy of the case thus made, which contained a statement of the evidence offered and objected to.

In the letter transmitting this document, the attorney said: 'The question now presented to our court is simply whether he (the insured) shall be allowed to put in the testimony. If not allowed, there is an end of the case. If allowed, then we go to trial upon other points of defense.'

(26 1/2) In reply to this the president of the Sun Company wrote as follows:

'NEW YORK, October 15, 1870.

'Messrs. J. & E. M. Rand, Portland, Me.-GENTS: Yours of the sixth instant was duly received, also the printed documents which you sent, and which we have perused carefully.

'It is shown by the testimony that the policy was made in accordance with the application of the plaintiff, and that there was no misunderstanding in relation thereto, calling for the admission of evidence outside of the policy to explain it; certainly none would be admissible to contradict it, for that would be setting up a new contract other than the policy itself which is sued upon.

'It is important, therefore, to have excluded all evidence tending to contradict the policy. By the policy, as made, the plaintiff insured on charter, New York to San Francisco, $6,550; on primage, $2,650; on personal effects, $1,500. There is no such charter shown, but the plaintiff sets up a charter to San Francisco and ports beyond, as described in the charter-party. The insurance of the charter to San Francisco was an insurance of only a part of said charter, not amounting even to a part insurance of the charter, because as the charter-party is to the effect that no money is to be paid by the charterers unless the whole round voyage is performed, and the contract being indivisible if no money was to be paid for the passage to San Francisco, the plaintiff had no insurable interest in that part of the charter; besides, the ship was loaded to her full capacity and was carrying full freight on said passage outside of the charter, which was covered under special policies. The plaintiff has, therefore, by the perils insured against in the policy, suffered no loss beyond what he has already been indemnified for under his policy on freight. The interest of the plaintiff in the passage to San Francisco was, therefore, an impossible interest. I do not mean to say that he had no interest in the charter-party, but the risk under our policy being only to San Francisco, ended before the charter-party could by any possibility be performed. I think, therefore, that the main question is the question of interest, and think that the above reasons will be found sound in law. Please let me hear from you as to your opinion of them, and also as to your line of defense,-what your points are,-in order that I may be able to form some opinion as to the ultimate issue of the suit.

Yours respectfully,

[Signed] 'J. P. PAULISON, President.'

(27) In or about January, 1872, the supreme court decided that the testimony was admissible, and on the sixteenth of that month the attorneys advised the Sun Company of the result, and sent a copy of the opinion delivered. They also said that the case would probably come up again for hearing in a week or two, and asked that papers of any kind relating to the defense in the possession of the Sun Company might be forwarded to them at once.

(28) Upon the receipt of this last letter the case was submitted by the Sun Company to its counsel in New York, who gave his opinion in writing to the effect 'that the Sun Mutual Insurance Company's liability under the reinsurance policy cannot be extended beyond the obvious import of the terms in which it is expressed. The letter of Melcher ordering the insurance not having been exhibited to them, nor the explanations of Sawyer made to them, they cannot be affected by them; and hence, if the admission of extrinsic evidence as to what took place between Sawyer and the Ocean Company, when the original insurance was made, varies the case as between that company and Melcher from what it appears to be on the face of the original policy, I cannot see that it is a matter that concerns the Sun Company.'

(29) January 29th a copy of this opinion was forwarded by the Sun Company to the attorneys in Portland, and attention called to its contents.

(30) At the January term, 1872, the cause was again tried, and, the testimony being all in, the case was withdrawn from the jury and submitted to the court to enter such judgment as law and the evidence required. The point was directly made by the Ocean Company that the policy never attached, because the ship never actually or legally sailed under the Rotterdam charter.

(31) On the twelfth of July, 1872, the case having been printed, a copy was sent by the attorneys in Portland to the Sun Company, with a statement that the cause would come on for argument before the full bench in a few days. Permission was also asked to draw on the company at sight for $500 on account of fees and disbursements.

(31 1/2) On the fifth of July the Sun Company replied, denying its liability to pay fees, and saying that, 'as the suit is against the Ocean Company and not against us, you must look to them for your fees.' It is also said in the letter that when the payment of $100 was made, in November, 1869, the case as subsequently developed was not fully understood.

(32) A judgment was afterwards rendered in the suit against the Ocean Company for $9,200, and interest from April 27, 1865.

(33) This judgment was satisfied by payments of the Ocean Company, as follows:

July 19, 1873,.................... $4,234

July 21, 1873,.................... 10,086

(34) The costs in the action which were included in the payment were $574.17.

(35) The account of the counsel in the cause for their professional services and disbursements, over and above the $100 paid by the Sun Company, was $1,164.70. This was also paid by the Ocean Company, July 23, 1873, and was reasonable.

(36) Payment of the amount of the judgment and the account for counsel fees was duly demanded of the Sun Company before the commencement of this suit, and refused.

The following is the statement by the circuit court of its conclusions of law:

(1) The Sun Company's policy covers the Rotterdam charter.

(2) The policy is not void because of any concealment by the Ocean Company.

(3) The judgment in the Maine court against the Ocean Company is conclusive upon the issues there made and decided, and binds the Sun.

(4) This action is not barred either by the statute of limitations or by lapse of time.

(5) The Sun Company is bound in law to reimburse the Ocean for moneys expended on account of counsel fees, and the costs and expenses in defending the suit in the Maine court.

(6) The libelant is entitled to a decree against the defendant for—

(1) Amount paid in satisfaction of the Maine judgment, $14,320

(2) Amount paid for counsel fees, expenses, etc.,. 1,164 70.........................................

---

In all,.......................... $15,485

With interest from July 21, 1873, and the costs in both courts.

''Wm. M. Evarts, C. F. Southmayd, and Jos. H. Choate'', for appellants.

R. D. Benedict and E. N. Taft, for appellee.

MATTHEWS, J.

By the express terms of the act of congress of February 16, 1875, defining the jurisdiction of this court, in cases such as the present, we are limited to a determination of the questions of law arising upon the record, including the rulings of the circuit court, presented in a bill of exceptions. And, as was decided in the case of The Abbotsford, 98 U.S. 440, and substantially repeated several times since, (The Benefactor, 102 U.S. 214; The Adriatic, 103 U.S. 730; The Annie Lindsley, 104 U.S. 185; The Francis Wright, 105 U.S. 381,) 'the facts as found and stated by the court below are conclusive. The case stands here precisely as though they had been found by the verdict of a jury.' Or, as it was put in the case of The Annie Lindsley, 104 U.S. 185-188: 'The question, and the only question, which we can consider is whether the facts found support the conclusions of law and the decree.' The findings of fact being in the nature of a special verdict, we can go neither behind them nor beyond them. We cannot correct them by inquiring into the evidence, nor supply any omissions by intendment or inference. The rule applicable to special verdicts was stated in Collins v. Riley, 104 U.S. 322-327,-'that the special verdict must contain all the facts from which the law is to arise; that whatever is not found therein is, for the purposes of a decision, to be considered as not existing; that it must present, in substance, the whole matter upon which the court is asked to determine the legal rights of the parties, and cannot, therefore, be aided by intendment or by extrinsic facts, although such facts may appear elsewhere in the record,'-which needs qualification in its application to such cases as the present; for our jurisdiction, in cases of this description, extending to a determination of the questions of law arising upon the record, may be predicated of facts which appear in any part of it, whether admitted by the parties in the pleadings, or by stipulation, or found by the court. But it is essential that the findings of fact should state the facts, and not the evidence merely, even although the evidence be sufficient to establish the fact. Chief Justice MARSHALL stated this rule in Barnes v. Williams, 11 Wheat. 415, when he said:

'Although, in the opinion of the court, there was sufficient     evidence in the special verdict from which the jury might      have found the fact, yet they have not found it, and the      court could not, upon a special verdict, intend it. The     special verdict was defective in stating the evidence of the      fact instead of the fact itself. It is impossible, therefore,     that a judgment could be pronounced for the plaintiff.'

This was approved in Hodges v. Easton, decided at the present term, ante, 307. And see Prentice v. Zane's Adm'r, 8 How. 470, and Norris v. Jackson, 9 Wall. 125.

These observations have a material and important application in this case.

It was essential to the establishment of the libelant's right of recovery to show that the risk insured against by the policy sued on, was the same which the libelant was adjudged liable for on its policy to Melcher. The policy of the respondent in this suit, although, in substance, a reinsurance, was not so in from. It did not describe the risk by reference to the policy of the Ocean Company, so that the identity between the two could be ascertained by mere comparison. It did not, in fact, allude to any such policy. The risk is described, solely, by words descriptive of the property insured, without a definition of the interest of the assured. It became necessary, therefore, to aver the identity of the two insurances. This the libel does. But, as it is denied in the answer, it became necessary to prove it. The finding of facts, however, in the circuit court, does not assert it. It contains other facts bearing on the question. But the conclusion itself is stated, not as a fact, but as a conclusion of law, from the facts found,-the facts and the conclusions of law having been separately stated, as expressly required by the act of congress. The first conclusion of law, in the statement made by the circuit court, is that 'the Sun Company's policy covers the Rotterdam charter.' The question, therefore, presented to us on this appeal is, not whether that might be true as a conclusion of fact, from the circumstances stated in the findings of fact, but whether, upon the facts found, it must be true as matter of law. The distinction is obvious and important. The circumstances in evidence might be such that a jury, or a court sitting to try the case without a jury, would believe, as the more reasonable probability, according to the ordinary and observed course of human conduct, that the fact disputed had or had not actually taken place; and in that case the inference would be one of fact. On the other hand, the facts found might be such as to be, in point of law, inconsistent with any supposition, except that of the existence or non-existence of the fact in controversy, in which case the conclusion is necessary, independently of any belief based upon what is more or less probable, because the law declares the uniform effect of such a state and condition of circumstances. The difference is between presumptions of fact and rebuttable presumptions of law, or presumptiones juris tantum, as distinguished from prasumptiones juris et de jure, according to the classification of Best, (Law of Evidence, § 314, 4th Eng. Ed.,) who states the practical test for distinguishing them thus:

'Sec. 323. Where a presumption of law is disregarded by a     jury, a new trial will be granted ex debito justitiae; but      where the presumption disregarded is only one of fact,      however strong or obvious, the granting a new trial is at the      discretion of the court in banc.'

In other words, when the testimony has been sifted and weighed, and the actual circumstances of the transaction stated in a connected from, the law, by means of its presumptions, determines whether they establish such a relation between the parties as to give rise to reciprocal rights and obligations, and, if so, what legal consequences have followed. The issue to be determined may be one, in form, merely of fact, as whether a particular contract was made, or whether one or both of the parties have been guilty of negligence. The circumstances of the entire transaction having been ascertained and stated, the issue is determined by the interpretation which the law puts upon them. This is an office quite distinct from ascertaining the circumstances themselves by the process of reduction from the original mass of evidence. It involves only a consideration of the facts as found, in their relation to each other, in view of fixed legal presumptions, in order to determine and declare the effect to be given to them as a connected whole. This is the same rule which, after much consideration, was established in the case of U.S. v. Peugh, 99 U.S. 265, in reference to the examination of the judgments of the court of claims, and which we reiterate here, as equally applicable to appeals from the decrees in admiralty of the circuit courts of the United States under the act of 1875. In that case, one of the issues to be determined was whether the proceeds of the sale of the captured property belonging to the claimant had been paid into the treasury. No direct proof to that effect had been given, but if shown at all, it was by way of inference from certain circumstantial facts which had been established by the evidence, which are set forth in the finding of the court below. The chief justice said, upon this point:

'Confessedly, the court has found all the facts which have     been directly established by the evidence. These facts are     not evidence in the sense that evidence means the statements      of witnesses or documents produced in court for inspection. They are the results of evidence, and whether they establish     the ultimate fact to be reached is, if a question of fact at      all, to say the least, in the nature of a question of law. If     what has been found is, in the absence of anything to the      contrary, the legal equivalent of a direct finding that the      proceeds of this claimant's property have been paid into the      treasury, the judgment is right; otherwise, it is wrong. The     inquiry thus presented is as to the legal effect of facts      proved, not of the evidence given to make the proof,' etc. *      *  * 'The rule relieves us from the necessity of considering      the evidence at all, and confines our attention to the legal      effect upon the rights of the parties of the facts proven as      they have been sent up from the court below. In this way the     weight of the evidence is left for the sole consideration of      the court below, but the ultimate effect of the facts, which      the direct evidence has established, is left open for review      here on appeal.'

Tried according to this standard, we are quite clear that the conclusion under examination cannot be sustained. The facts material to the point, and which, in our opinion, justify and require this result, are as follows: The language of the policy sued on, descriptive of the risk assumed, is, '$6,550 on charter, $2,650 on primage, and $1,500 on property on board ship C. S. Pennell, at and from New York to San Francisco.' The proposal for this insurance was made March 23, 1864, by letter. The vessel, at that time lying at New York, had been previously chartered to her full capacity for a voyage from New York to San Francisco, of which both companies had knowledge; and on January 30, 1864, was chartered by Melcher, her master, to the Peruvian government, by the terms of which charter she was to sail from New York on or before June 1, 1864, to San Francisco, and thence proceed, with all convenient dispatch, to Callao, Peru, and from thence, if on inspection she should be found well conditioned for the voyage, to the Chincha islands for a cargo of guano to be taken to Hamburg or Rotterdam. Of this second charter the Ocean Company had full knowledge, having, on February 5, 1864, insured to Pennell, a part owner, his interest in both the ship and this charter on the voyage described as 'at and from New York to, at, and from San Francisco, Callao and the Chinchas.' And on March 20, 1864, Melcher, one-eighth owner and master, by letter to his agent, Sawyer, directed the latter to insure his interest in the ship and both charters, specifically describing them, and primage and personal effects on board. Sawyer, exhibiting this letter to the Ocean Company and explaining fully the circumstances, that company issued one policy to Mclcher, describing the risk in the same words as those used in the policy sued; and by a separate policy insured $3,000 on his interest in the ship during the whole voyage, described as 'at and from New York to, at, and from San Francisco and Chinchas, with usual liberties at Callao, to her port of advice and discharge in Europe.'

The letter of March 23, 1864, from the Ocean Company to the Sun Company, containing the return of the insurance involved in this suit, included two otehres, both of which were accepted,-one of $5,000 'on charter of ship Charles S. Pennell at and from New York to, at, and from San Francisco and Callao to Chinchas;' the other, a war risk only, of $5,000 on the ship, on voyage described in the same words. The correspondence between the companies on the subject, at the time these risks were assumed, undoubtedly contains a reference to a voyage from New York to San Francisco, and thence to Callao and Chinchas, and of two insurances on charter, in one of which the voyage is described as including New York and Chinchas via San Francisco and Callao, and in the other, from New York to San Francisco; but there is nothing which indicates with any conclusive force that there were two distinct charters, and certainly nothing to indicate that there was one which included the return voyage from the Clinchas to Rotterdam. And, in respect to the latter, it is found, as a fact, that 'the Sun Company had no other knowledge of the existence of the Rotterdam charter than such as is to be inferred from the correspondence,' which, as we have just stated, and as must appear from the full text of the letters set out in the findings, communicated no knowledge of such a charter whatever.

It will not suffice to say, as was said in argument, that the language of the correspondence and of the three contemporaneous insurances was such as to give the Sun Company notice of a voyage and charter beyond San Francisco, as well as of one to that port from New York, and that they must include distinct interests, so that, upon inquiry, it might have become informed of all the particulars of the Rotterdam charters. For the question is not one of notice sufficient to suggest further inquiry, and of due diligence in prosecuting it, disregard of which may be alleged as laches, but whether the minds of the parties in fact met in a common understanding, so as to consummate the contract sued on. And to show that, it was necessary to prove, in the absence of express words, and to resolve the ambiguity arising upon the evidence, that, from the circumstances, in point of fact, the Sun Company must have intended to insure an interest in the Rotterdam charter. Proof of its actual knowledge that such a charter was in existence would be only one step in that direction, and even that is wanting. Had it been supplied, the burden of proof would have still remained with the libelant to show that it was meant by both parties to describe that particular risk, under an insurance upon a charter during a voyage described as at and from New York to San Francisco.

It is admitted that the language of the policy does not of itself import an insurance of a charter beyond one during the voyage described. Prima facie, indeed, it describes a charter terminating with that voyage, and not beyond. In the action brought by Melcher against the Ocean Company in Maine, and determined in the supreme court of that state, it was claimed by the defendant that the language of the policy conclusively described a charter-party limited to the description of the voyage, and that proof was not admissible to show that any other existed, and was the one meant. And it was held in that case, in substance, that without such proof there could be no recovery; but that, inasmuch as a description of the voyage during which the risk was insured did not necessarily determine the extent of the charter-party under which the freight was to be earned, it appearing from extrinsic evidence that two charter-parties existed to which the insurance might apply, a latent ambiguity was disclosed which was susceptible of explanation by parol evidence. And accordingly, upon proof of the communications between Melcher and the Ocean Company, not made known at Rotterdam charter. Without that the former was adjudged to have insured by its policy his interest in the Rotterdam chater. Without that proof he must have failed in his litigation. It cannot be claimed that such proof is admissible to explain the contract of the appellant. Nor is the liability of the latter affected by the fact that its policy is one of reinsurance in fact; nor by the circumstance that it aided in the maintenance of the defense in the suit against the Ocean Company; nor by the result and judgment in that action.

The policy, although a reinsurance, is a contract, which, like others, must be construed according to its terms, and the same ambiguity arises in respect to it that was found to exist in respect to the original insurance. The Sun Company, in maintaining the defense in aid of the Ocean Company, that the policy of the latter did not cover an insurance of Melcher's interest in the Rotterdam charter, maintained also, what it has continued to do in this suit, its own defense against the changed claim of the Ocean Company which the latter now asserts, with the advantage that its defense cannot be overcome by proof of explanations outside of the policy itself, such as defeated the libelant in its contest with Melcher. And the judgment rendered in favor of the latter upon the point in question, as to what was in fact the contract made with him by the Ocean Company, is no adjudication against the appellant as to what is the contract between the parties to this suit; for it is only upon the presupposition of the identity of the subject-matter of the two contracts that it could be pretended that the judgment against the Ocean Company would be admissible in evidence, for any purpose material here, against the Sun Company. To admit it as evidence of that identity is a pure petito principii. Accordingly, it was an additional and substantive error in the circuit court to find as a conclusion of law, as it did, that 'the judgment in the Maine court against the Ocean Company is conclusive upon the issues there made, and decided and binds the Sun.' It was, of course, conclusive upon the Ocean Company, but was not ever admissible in evidence against the Sun Company, without prior proof that the policy of the latter company was intended to cover the Rotterdam charter.

Much reliance is placed, in argument in support of this contention on the part of the libelant, upon the circumstance, stated in the findings of fact, that 'the loss under the risk taken in favor of Charles S. Pennell, both on the ship and Rotterdam charter, was paid by the Sun Company, without objection, October 23, 1865, and May 5, 1866.' These losses were paid on the two insurances effected contemporaneously with that sued on in this proceeding, in which the voyage described was 'at and from New York to, at, and from San Francisco and [to] Callao to Chinchas.' But, at most, this only gives rise to an inference that these two insurances were intended to cover some charter, other than the one from New York to San Francisco, and, indeed, is not conclusive as to that. It certainly does not establish, even in respect to them, that they were understood, at the time the insurances were effected, to cover a risk upon an interest in the Rotterdam charter, or any charter in force during the voyage from New York to San Francisco; much less can it be said that any admission can be implied, from such payment, that the risk, described as upon ship and charter during the extended voyage to Callao and the Chinchas, although described as commencing at New York was identical, so far as the charter was concerned, with that in the policy sued on, in which the voyage is described as from New York to San Francisco. In any aspect, the circumstance relied on is merely argumentative. The Sun Company may have made the payment inadvertently, without consideration of its strict rights. It certainly is not conclusive as an admission of liability in this case, for it has no element of estoppel, and to justify the conclusion of law sought to be drawn from it, would be to give it that effect.

The fact that the Sun Company participated in the defense of the Ocean Company in the action brought by Melcher, and the communications between the companies in respect to it, so far as they are set out in the findings of fact, are, in our opinion, equally without effect, and do not amount either to an admission of liability or to an agreement to be bound by the result of that litigation; and having carefully considered all the circumstances found and relied on, without further special mention of them, we are constrained to say that they do not, either singly or together, sustain the conclusion that 'the Sun Company's policy covers the Rotterdam charter.' This conclusion is, in our opinion, greatly strengthened by the consideration of other facts set out in the finding, which, while they tend to show that as a matter of fact the Sun Company did not intend to reinsure Melcher's interest in the Rotterdam charter, furnish also a distinct ground of defense, as matter of law, if the fact had been otherwise, and negative the second conclusion of law announced by the circuit court, that 'the policy is not void because of any concealment by the Ocean Company.'

The situation was this: There were two concurrent charters on the ship, both which were treated as in force during the one voyage from New York to San Francisco, in the course of which she was lost. The first charter covered a full cargo, and no additional freight could be simultaneously earned under the second, for no part of the cargo contemplated by it could be on board till after the voyage under the first charter had been completed. In case of loss during that voyage, consequently, there could be no salvage of freight applicable to the second charter. Melcher was master and owner of one-eighth of the ship. On March 20, 1864, he instructed his agent, Sawyer, by letter shown to the Ocean Company, to effect insurance on his behalf against war risk on ship, and generally on his interest in both charters specifically, besides primage, and on his personal effects, amounting in all to $19,425, and in the same letter said: 'I think you had better put $5,000 or $6,000 more marine risk in case I should lose the ship.' The Ocean Company accepted the risk on the Rotterdam charter, primage, and personal effects to San Francisco, and on the same day insured the master for $3,000 on his interest in the ship during the whole of her voyage, describing the duration and locality of the risk as 'at and from New York to, at, and from San Francisco and Chinchas, with usual liberties at Callao, to her port of advice and discharge in Europe.' This latter insurance was not made known to the Sun Company, nor was it informed of any of the communications that had taken place between the Ocean Company and Melcher, including the contents of the letter to Sawyer.

It thus appears that at the time of the loss Melcher had insurance on two concurrent charters and his primage thereon during one voyage, being insured, besides his interest in the ship, on double the amount of its possible earnings of freight for one voyage. The fact was known to the Ocean Company at the time, and was not communicated by it to the Sun Company, which was without other knowledge upon the subject, and executed its policy to the Ocean Company in ignorance of it. That knowledge of the circumstance was material and important to the underwriter as likely to influence his judgment in accepting the risk, we think, is so manifest to common reason as to need no proof of usage or opinion among those engaged in the business. It was a flagrant case of over-insurance upon its face, and made it the pecuniary interest of the master in charge of the ship to forego and neglect the duty which he owed to all interested in her safety. Had it been known, it is reasonable to believe that a prudent underwriter would not have accepted the proposal as made, and, where the fact of the contract is in dispute, as here, corroborates the denial of the appellants. The concealment, whether intentional or inadvertent, we have no hesitation in saying, avoids the policy, if actually intended to cover the risk for which the claim is made.

In respect to the duty of disclosing all material facts, the case of reinsurance does not differ from that of an original insurance. The obligation in both cases is one uberrimce fidei. The duty of communication, indeed, is independent of the intention, and is violated by the fact of concealment even where there is no design to deceive. The exaction of information insome instances may be greater in a case of reinsurance than as between the parties to an original insurance. In the former, the party seeking to shift the risk he has taken is bound to communicate his knowledge of the character of the original insured, where such information would be likely to influence the judgment of an underwriter; while in the latter, the party, in the language of BRONSON, J., in the case of the ''N. Y. Bowery Fire Ins. Co. v. New York Fire Ins. Co.'' 17 Wend. 359-367, is 'not bound, nor could it be expected that he should speak evil of himself.'

Mr. Duer (Lect. 13, pt. 1, § 13; 2 Inst. 398) states, as a part of the rule, the following proposition:

'Sec. 13. The assured will not be allowed to protect himself     against the charge of an undue concealment, by evidence that      he had disclosed to the underwriters, in general terms, the      information that he possessed. Where his own information is     specific, it must be communicated in the terms in which it      was received. General terms may include the truth, but may     fail to convey it with its proper force and in all its      extent. Nor will the assured be permitted to urge, as an     excuse for his omission to communicate material facts, that      they were actually known to the underwriters, unless it      appears that their knowledge was as particular and full as      his own information. It is the duty of the assured to place     the underwriter in the same situation as himself; to give to      him the same means and opportunity of judging of the value of      the risks; and when any circumstance is withheld, however      slight and immaterial it may have seemed to himself, that, if disclosed, would      probably have influenced the terms of the insurance, the      concealment vitiates the policy.'

This statement is sustained by the authorities cited, (Ely v. Hallett, 2 Caines, 57; Mosse v. Delaware Ins. Co. 1 Wash. C. C. 385,) and, in our opinion, is a necessary deduction from the nature and spirit of the contract of insurance. It applies with peculiar force in the present case, as every sentence of the rule is a condemnation of the Ocean Insurance Company in imposing upon the appellant the whole risk of the insurance, without communicating its knowledge of the circumstances, which might have made the latter as unwilling to assume it, as they seem to have made the former unwilling to retain even a share of it.

For these reasons, and without passing upon other questions discussed, the decree of the circuit court is reversed, and the cause remanded with directions to enter a decree dimissing the libel; and it is accordingly so ordered.

MILLER, J., dissenting.

I do not concur in the opinion of the court. It proceeds, as I think, upon an erroneous view of the principles of reinsurance. It places the reinsurer in the exact condition of a joint insurer, or of an original insurer of the risk of the party first insured. In point of fact the Sun Company insured the Ocean Company against the risk which the latter incurred by its policies, and, unless there was misrepresentation, fraud, or intentional concealment by the Ocean Company, the Sun Company should pay the loss which the other sustained, and against the hazard of which it agreed to insure the Ocean Company. The long course of dealing between the two companies showed that the Sun Company was in the habit of reinsuring for the Ocean Company without inquiry into the particulars of the risk, and in this case there was no reason for any special communication of the circumstances of the risk by the Ocean to the Sun Company.

I am authorized to say that the chief justice and Mr. Justice BRADLEY concur with me in this dissent.


text: Talk:Sun Mutual Insurance Company v. Ocean Insurance Company/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Marshall v. The Adriatio

''Wm. Allen Butler, Thos. E. Stillman, and Thos. H. Hubbard'', for appellants.

E. P. Wheeler and ''Joe. H. Choate'', for appellee.

FIELD, J.

title: Marshall v. The Adriatio


text: Talk:Marshall v. The Adriatio

title: Talk:Marshall v. The Adriatio


text:
Page:Dictionary of National Biography volume 60.djvu/139

 of his father on 11 Aug. 1756 altered Wedderburn's prospects, and intensified his desire to abandon Edinburgh. His exit was dramatic. In August 1757 he was opposed to Alexander Lockhart (afterwards Lord Covington of Session) in a case which he won against his veteran adversary. Stung by a depreciatory remark made by Lockhart, the young advocate replied so intemperately that he was rebuked by the presiding judge, Lord-president Craigie. The other judges were of opinion that Wedderburn should retract and apologise; but instead of doing so, he took off his advocate's gown, laid it on the bar, and, declaring that he would wear it no more, he left the court, never again to enter it. That night he set out for London, determined to make his way at the English bar. He rented chambers in the Temple, and, as his first step towards success, he took lessons in elocution from the elder Sheridan and afterwards from the actor Quin, so that he might overcome his provincial accent. On 25 Nov. 1757 he was called to the bar. His practice for several years was not great, but he became an intimate friend of the Earl of Bute, and when that nobleman came into power after the death of George II in 1760, Wedderburn came into notice. On 28 Dec. 1761 he was returned to parliament as member for the Ayr burghs, and retained this seat till 1768. He ‘took silk’ and was chosen a bencher of Lincoln's Inn in February 1763, and joined the northern circuit. Here he was not so successful as he had anticipated, and shortly afterwards he took up his residence permanently in London, practising chiefly in the court of chancery. He soon made a name for himself as an equity lawyer. Important cases from Scotland were entrusted to him, and he was counsel for the respondent in the famous Douglas cause, in which he greatly distinguished himself, though the final judgment was against his client [see, first ].

On 21 March 1768 Wedderburn was returned as member of parliament for Richmond, Yorkshire. He entered the house as a tory; but in the following year he warmly espoused the cause of Wilkes, and delivered so violent a speech against the government that he felt bound in honour to accept the Chiltern Hundreds and resign his seat. Within a few days Lord Clive offered him the borough of Bishop's Castle, Shropshire, a vacancy having been created by the retirement of William Clive, and Wedderburn took his seat as an ardent supporter of the popular party. He represented this constituency till 1774.

Wedderburn began the session of 1770 in violent opposition to Lord North's administration, and lost no opportunity of attacking the government alike on home and colonial policy. He has been accused, not without reason, of having adopted this attitude for the purpose of compelling Lord North to purchase his support. His ambition was unbounded, and it is probable that he coveted the office of lord chancellor from the beginning of his parliamentary career. But Wedderburn did not at first listen to the cautious overtures made by Lord North. When, however, Lord Chatham, towards the close of 1770, sought to attach him to the whig party by personal attentions, he justified the epithet of ‘the wary Wedderburn,’ applied to him by Junius. It was evident that his ardour for the popular cause was cooling, and at length Lord North was able to bid for his support. On 25 Jan. 1771 Thurlow was gazetted as attorney-general, and Wedderburn succeeded his great rival as solicitor-general. This conversion has been justly described as ‘one of the most flagrant cases of ratting recorded in our party annals.’ There was no change of policy on the part of the government to excuse so virulent an opponent becoming a devoted partisan of Lord North. Wedderburn was also appointed at the same time chancellor to the queen and a privy councillor (Hist. MSS. Comm. 10th Rep. App. vi. 3). He had thoroughly broken his connection with the whig party. Though Lord Clive was indignant at Wedderburn's conversion, the new solicitor-general had no difficulty in securing his re-election for Bishop's Castle.

The reputation which Wedderburn had gained as a parliamentary debater was greatly increased after he took office. At the election in 1774 he was chosen for two places—Castle Rising, Norfolk, and Okehampton, Devonshire; and, selecting the latter, he sat as its member till 1778. In June of that year, when Thurlow received the great seal, Wedderburn was promoted to the attorney-generalship, and became once more member for Bishop's Castle. During his tenure of office he had many difficult cases to conduct, while the defence of the government through all the blundering of the American war was no light task. It was, besides, plainly seen by Wedderburn that the ministry could not retain its hold upon office much longer, and he was the more eager to obtain a secure place on the bench while opportunity remained. At length, on 14 June 1780, he was appointed chief justice of the court of common pleas, and raised to the peerage with the title of Baron Loughborough of


text:
Marshall v. The Adriatio/Opinion of the Court

This case comes before us on appeal from a decree of the circuit court, with a finding of facts upon which it was rendered. We are, therefore, relieved of much of the embarrassment experienced on the trial, both by that court and the district court, from the difficulty of determining from the evidence the exact position of the vessels immediately preceding the collision. Here we must take the facts as found and apply the law to them. In cases of admiralty and maritime jurisdiction, on the instance side of the court, under the act of congress of 1875, the finding has the effect of a special verdict in an action at law. There is, it is true, a bill of exceptions in the record, but it contains exceptions only to the finding, and to the refusal of the court to find otherwise. It presents no question for our consideration except such as arises upon the facts as found. There is no occasion in any case to except specially to a finding, as its sufficiency, in connection with the pleadings, to support the decree rendered, is always open to consideration on appeal.

On the evening of December 30, 1875, the ship Harvest Queen, an American vessel, sailed from the harbor of Queenstown, Ireland, for the port of Liverpool, England. She was 187 feel long, of 1,626 tons burden, and had at the time a cargo of grain on board. On the same day the steamer Adriatic, a British vessel, left Liverpool for New York, and proceeded down the Irish channel. She was 450 feet long, and of over 3,000 tons burden. Her forward deck was roofed with what is termed a turble-back, so called from its shape. The spray of the sea dashed over this roof, and the lookouts of the steamer were, therefore, stationed on a house just abaft of it.

The wheel-house was on deck, and above and a little forward of it was the bridge on which the officer on watch usually took his position. Adjoining the wheel-house, and opening into it, was the chartroom. At a quarter past 2 on the morning of December 31st, the captain, who had been on duty all the time after leaving Liverpool, went into that room and lay down on a sofa, giving orders to be called at 4, or sooner if any vessels came in sight. The first officer was then on watch, standing on the bridge, most of the time on the starboard side. Three seamen were on the lookout,-one on each side of the house mentioned, and one on the port side of the bridge. At 35 minutes past 2 the first officer, looking through a night-glass, saw a green light about two points on his starboard bow. It could not be seen by the naked eye. It proved afterwards to be a light on the Harvest Queen. At this time the sky was clear, with scattering clouds, but on the water the night was dark; the wind was blowing a fresh breeze from the S. W., and the sea was running high. The steamer was going about 12 knots an hour, having all her lights in their proper places and burning brightly. Soon afterwards the light on the Harvest Queen was seen by one of the lookouts, and two strokes were given to the bell on the turtle-deck as a signal that a light was seen on the starboard bow.

Four minutes after that-at 39 minutes past 2-the green light of the ship, which had broadened to three and a half points, changed to red. Up to this time the steamer had not altered her course. The character of the approaching vessel was not known, nothing but her light being seen. But, whether she was propelled by wind or steam, the steamer pursued the proper course to prevent the danger of collision. Her green light must have been equally visible from the Harvest Queen; and when two vessels keep the same colored lights in view of each other, collision is impossible, for they are them moving on parallel lines. The lights on vessels are required to be so placed as not to be seen across their bows. The red light coming in sight indicated that the ship had changed her course, and was no longer running on a parallel line, but in a direction which, if continued, would bring her across the bow of the steamer. The first officer, therefore, at once gave an order to port the helm, and signaled the engineer to stand by the engine, following this with a further order to slow the engine. Both these orders were promptly obeyed, and the steamer slowly swung to the right.

As already stated, the steamer was going at the rate of 12 knots an hour. The Harvest Queen-judging from the time she occupied in passing over the distance from Queenstown-must have been sailing at the rate of eight knots an hour; that is, the two vessels were approaching each other at a speed equal to about 20 miles an hour. The light on the Harvest Queen could not have been seen that night further than two miles and a half, and over this distance the steamer with her speed had passed four-fifths of a mile, and the Harvest Queen a little more than one-half of a mile. So that, at this time, when the red light was seen, the vessels must have been about a mile and a quarter apart. At the rate they were moving they would come together or pass each other in four minutes. The first officer of the steamer at once perceived the necessity of an immediate change in her course so as to bring her on a parallel line with the approaching ship. To accomplish this it was necessary to port the helm of the steamer, which was at once done. The order to do this was, under the circumstances, the proper one to be given. The slowing of the speed of the steamer, by reason of the proximity of the other vessel, was also a proper proceeding. When a steamer is nearing another vessel, and there is danger of collision from continuing the rate of speed at which she is going, it is the duty of her captain to slacken her speed, and, if necessary, to reverse her engines and move her backwards. Such is the express language of rule 21, adopted by congress for the prevention of collisions on the water, which is as follows: 'Every steam-vessel, when approaching another vessel so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse; and every steam-vessel shall, when in a fog, go at a moderate speed.' Rev. St. § 4233.

Had there been no other change in the course of the Harvest Queen, the new direction taken by the steamer would have carried her past that vessel without collision. But about a minute afterwards, or 40 minutes past 2, the red light of the Harvest Queen changed again to green. The steamer had then yielded to her helm and gone off a point to the starboard, and was swinging further in that direction. The first officer, seeing the reappearance of the green light, at once gave an order to stop the engine, and, as soon as it could be done, to back the steamer at full speed. This order was obeyed, and the engine was put in a reverse motion at about 41 minutes past 2. The captain was then called and immediately came on deck. Looking ahead he saw a green light not far away, about two points off the starboard bow; then green and red lights appeared together, and then the red alone. He noticed also that the helm was to the port side, and that the engine was under reversed action. Thereupon he gave the order from the deck, 'hard a-starboard,' which was obeyed. He then went on the bridge. Had the steamer been then going astern there could be no question as the propriety of this order; it would have turned her to the right and she would have passed on the left side of the Harvest Queen, showing red light to red light, the two vessels in that event moving on parallel lines. The effect of a starboard helm when a vessel is going astern is directly the opposite of that produced when she is going ahead. But at the time the order was given, the forward motion of the steamer had not been entirely overcome, and she was still moving ahead slowly. It appears, however, that, while thus moving with the reversed action of her engine, the steamer did not yield to her helm so as to materially change her forward direction. The order could not, therefore, have contributed to the collision. But, were it otherwise, we cannot say that the captain could be justly blamed. In considering his action, the question is not whether the order given was the best when viewed in the light of subsequent events, but whether under the circumstances in which he was placed it was that of a prudent and skillful commander. The nearness of the approaching ship and the frequent change in her light, while calling for prompt action on his part, were well calculated to embarrass and confuse him. Delay in acting was full of danger; there was no time for deliberation and consultation with others; and seeing the reversed movement of the engine he would naturally conclude that the ship had yielded or would soon yield to it and pass the approaching ship in safety.

Soon after he reached the bridge the Harvest Queen appeared through the darkness under full sail and bore down directly on the steamer. Before anything could be done her jib-boom ran over the turtle-back of the steamer, and was broken in two, one part falling into the water. The engines of the steamer were then backing at full speed, and if she was not in fact going astern, she was, according to the finding of the circuit court, 'not going ahead much, if any.' She continued backing after the collision; and when the vessels separated the Harvest Queen passed across the bow her sails atic from port to starboard. Her masts were standing and her sails were all set. The first officer of the steamer hailed her, but received no answer from any one; no hail came from her. She gave no signs of serious injury, yet she was in some way injured so severely that soon afterwards she sank with all on board.

Immediately after the separation of the vessels, the captain of the steamer gave orders to clear away the boats; but, the Harvest Queen keeping in sight, the orders were countermanded, and the Adriatic steamed slowly towards her until she became lost to view. It was about that time that cries for help were heard in the water, in the direction where the ship was last seen. The engines were stopped and an order to lower the boats was immediately given. Two boats, under command of officers of the steamer, put out in search of the parties from whom the cries were heard. They were rowed in the direction whence the cries came; but after remaining out for half an hour to an hour they were recalled by a signal from the steamer. Nothing was ever afterwards heard of any of the ship's crew, and only a few fragments of the vessel were ever found. The vessel and cargo were a total loss.

The present libel was filed to recover their value in damages, alleged to be $225,000. The libelants charge that the collision was caused by the negligence and improper conduct of those on board the steamer (1) in not having a good and sufficient lookout; (2) in running at too great a speed; (3) in not keeping out of the way of the Harvest Queen; and (4) in not stopping and backing in time to avoid the collision.

From the narrative we have given of the facts of the case, which is but a summary of the findings of the circuit court, stating the facts with much greater detail and particularity, it is evident that these allegations are not sustained in any essential particular.

While the vessels were over two miles apart, the green light on the Harvest Queen was distinctly seen. A similar light on the Adriatic could easily have been seen, and, if the lookouts were attending to their duty, probably was seen, from the ship. Those light being visible, it was only necessary for the vessels to keep in their course, and collision would have been impossible. The subsequent changes made by the steamer were caused by previous changes in the course of the ship, as indicated by the showing of her lights. While it was the duty of the steamer to keep out of the way of the ship, being more under control, it was no less the duty of the ship to avoid anything tending to mislead and embarrass the steamer in the performance of this duty. That she did thus mislead and embarrass the steamer is plain from the statement already made. To one at a distance her changing lights were confusing-indicating either doubt on the part of her officers as to the course to be taken, or, what is more likely to have been the case, the absence of a good and sufficient lookout on board of the ship to report the sight and approach of the steamer.

The continued appearance of the green light for the first four minutes after it was seen, answers the suggestion that the change of lights on the Harvest Queen was the result of the swinging of the vessel from the wind and sea, and not from an alteration in her course.

The general rule as to the conduct of a ship under circumstances like those presented in this case in much stronger against the course the Harvest Queen pursued than we have stated. That rule is for a sailing vessel meeting a steamer to keep her course, while the steamer takes the necessary measures to avoid collision. In Crockett v. Newton this court said that 'though the rule should not be observed when circumstances are such that it is apparent its observance must occasion a collision, while a departure from it will prevent one, yet it must be a strong case which puts the sailing vessel in the wrong for obeying the rule,' (18 How. 583;) and in New York & Liverpool U.S. Mail Steam-ship Co. v. Rumball, that 'under the rule that a steamer must keep out of the way, she must of necessity determine for herself and upon her own responsibility, independently of the sailing vessel, whether it is safer to go to the right or left or to stop; and in order that she may not be deprived of the means of determining the matter wisely, and that she may not be defeated or baffled in the attempt to perform her duty in the emergency, it is required, in the admiralty jurisprudence of the United States, that the sailing vessel shall keep her course, and allow the steamer to pass either on the right or left, or to adopt such measures of precaution as she may deem best suited to enable her to perform her duty and fulfill the requirement of the law to keep out of the way.' 21 How. 384.

Here, so far from observing this rule the ship, by her frequent changes, embarrassed the action of the steamer, and prevented her from continuing in a course which would have avoided the disastrous result. If the ship had kept on the course she was sailing when first seen, or had adhered to the first new course afterwards taken, no collision would have happened.

It seems to us plain, upon the facts found by the circuit court, that whatever fault there was which caused the collision it originated with the ship and not the steamer. The decree is therefore affirmed.


text: Talk:Marshall v. The Adriatio/Opinion of the Court


text:
District of Columbia v. Arms

A. G. Riddle, for plaintiff in error.

S. Shellaberger, A. A. Birney, and C. H. Armes, for defendants in error.

FIELD, J.

title: District of Columbia v. Arms


text: Talk:District of Columbia v. Arms

title: Talk:District of Columbia v. Arms


text:
District of Columbia v. Arms/Opinion of the Court

This was an action to recover damages for injuries received by the plaintiff's intestate, Du Bose, from a fall caused by a defective sidewalk in the city of Washington. In 1873 the board of public works of the city caused the grade of the carriage-way of Thirteenth street, between F and G streets, to be lowered several feet. The distance between the curbstone of the carriage-way and the line of the adjacent building was 36 feet. At the time the accident to the deceased occurred, this portion of the street sidewalk it may be termed, to designate it from the carriage-way, although only a part of it is given up to foot passengers-was, for 48 feet north of F street, lowered in its whole width to the same grade as the carriage-way. But, for some distance beyond that point, only 12 feet of the sidewalk was cut down, thus leaving an abrupt descent of about 2 feet at a distance of 12 feet from the curb. At this decent-from the elevated to the lowered part of the sidewalk-there were 3 steps, but the place was not guarded either at its side or end. Nothing was placed to warn foot passengers of the danger.

On the night of February 21, 1877, Du Bose, a contract surgeon of the United States army, while walking down Thirteenth street, towards F street, fell down this descent, and, striking upon his knees, received a concussion which injured his spine and produced partial paralysis, resulting in the impairment of his mind and ultimately in his death, which occurred since the trial below. The present action was for the injury thus sustained. He was himself a witness, and it appeared from his testimony that his mind was feeble. His statement was not always as direct and clear as would be expected from a man in the full vigor of his mind. Still it was not incoherent, nor unintelligibel, but evinced a full knowledge of the matters in relation to which he was testifying. A physician of the government hospital for the insane, to which the deceased was taken two years afterwards, testified that he was affected with acute melancholy; that sometimes it was impossible to get a word from him; that his memory was impaired, but that he was able to make a substantially correct statement of facts which transpired before the injury took place, though, from the impairment of his memory, he might leave out some important part; that there would be some confusion of ideas in his mind; and that he should not be held responsible for any criminal act. A physician of the Freedmen's hospital, in which the deceased was at one time a patient after his injuries, testified to a more deranged condition of his mind, and that he was, when there in June, 1879, insane. He had attempted to commit suicide, and had stuck a fork into his neck several times. Upon this, and other testimony of similar import, and the feebleness exhibited by the deceased on the stand, the counsel for the city requested the court to withdraw his testimony from the jury, on the ground that his mental faculties were so far impaired as to render him incompetent to testify as a witness. This the court refused to do, but instructed the jury that his testimony must be taken with some allowance, considering his condition of mind and his incapacity to remember all the circumstances which might throw some light on his present condition. This refusal and ruling of the court constitute the first error assigned.

The ruling of the court and its instruction to the jury were entirely correct. It is undoubtedly true that a lunatic or insane person may, from the condition of his mind, not be a competent witness. His incompetency on that ground, like incompetency for any other cause, must be passed upon by the court, and to aid its judgment evidence of his condition is admissible. But lunacy or insanity assumes so many forms, and is so often partial in its extent, being frequently confined to particular subjects, while there is full intelligence on others, that the power of the court is to be exercised with the greatest caution. The books are full of cases where persons showing mental derangement on some subjects evince a high degree of intelligence and wisdom on others. The existence of partial insanity does not unfit individuals so affected for the transaction of business on all subjects, nor from giving a perfectly accurate and lucid statement of what they have seen or heard. In a case in the prerogative court of Canterbury, counsel stated that partial insanity was unknown to the law of England; but the court replied that if by this was meant that the law never deems a person both sane and insane at one and the same time, upon one and the same subject, the assertion was a truism; and added: 'If, by that position, it be meant and intended that the law of England never deems a party both sane and insane at different times upon the same subject, and both sane and insane at the same time upon different subjects, there can scarcely be a position more destitute of legal foundation; or, rather, there can scarcely be one more adverse to the stream and current of legal authority.' Dew v. Clark, 3 Add. Ecc. 79, 94.

The general rule, therefore, is that a lunatic or a person affected with insanity is admissible as a witness if he have sufficient understanding to apprehend to apprehend the obligation of an oath, and to be capable of giving a correct account of the matters which he has seen or heard in reference to the questions at issue; and whether he have that understanding is a question to be determined by the court, upon examination of the party himself, and any competent witnesses who can speak to the nature and extent of his insanity. Such was the decision of the court of criminal appeal in England, in the case of Reg. v. Hill, 5 Cox, Crim. Cas. 259. There the prisoner had been convicted of manslaughter; and on the trial a witness had been admitted whose incompetency was urged on the ground of alleged insanity. He was a patient in a lunatic asylum, under the delusion that he had a number of spirits about him which were continually talking to him, but the medical superintendent testified that he was capable of giving an account of any transaction that happened before his eyes; that he had always found him so; and that it was solely with reference to the delusion about the spirits that he considered him a lunatic. The witness himself was called, and he testified as follows: 'I am fully aware I have a spirit, and 20,000 of them. They are not all mine. I must inquire. I can where I am. I know which are mine. Those that ascend from my stomach and my head, and also those in my ears. I don't know how many they are. The flesh creates spirits by the palpitation of the nerves and the rheumatics. All are now in my body and around my head. They speak to me incessantly. particularly at night. That spirits are immortal, I am taught by my religion from my childhood. No matter how faith goes, all live after my death, those that belong to me and those that do not.' After much more of this kind of talk he added: 'They speak to me instantly; they are speaking to me now; they are not separate from me; they are around me speaking to me now; but I can't be a spirit, for I am flesh and blood. They can go in and out through walls and places which I cannot.' He also stated his opinion of what it was to take an oath: 'When I swear,' he said, 'I appeal to the Almighty. It is perjury, the breaking of a lawful oath, or taking an unlawful one; he that does it will go to hell for all eternity.' He was then sworn, and gave a perfectly collected and rational account of a transaction which he declared that he had witnessed. He was in some doubt as to the day of the week on which it took place, and on cross-examination said: 'These creatures insist upon it, it was Tuesday night, and I think it was Moday;' whereupon he was asked: 'Is what you have told us, what the spirits told you, or what you recollected without the spirits?' And he said: 'No; the spirits assist me in speaking of the date; I thought it was Monday, and they told me it was Christmas eve, Tuesday; but I was an eye-witness, an ocular witness, to the fall to the ground.' The question was reserved for the opinion of the court whether this witness was competent, and after a very elaborate discussion of the subject it was held that he was. Chief Justice CAMPBELL said that he entertained no doubt that the rule laid down by Baron PARKE, in an unreported case which had been referred to, was correct, that wherever a delusion of an insane character exists in any person who is called as a witness, it is for the judge to determine whether the person so called has a sufficient sense of religion in his mind and a sufficient understanding of the nature of an oath, and it is for the jury to decide what amount of credit they will give to his testimony. 'Various authorities,' said the chief justice, 'have been referred to, which lay down the law that a person non compos mentis is not an admissible witness; but in what sense is the expression non compos mentis employed? If a person be so to such an extent as not to understand the nature of an oath, he is not admissible. But a person subject to a considerable amount of insane delusion may yet be under the sanction of an oath, and capable of giving very material evidence upon the subject-matter under consideration.' And the chief justice added: 'The proper test must always be, does the lunatic understand what he is saying; and does he understand the obligations of an oath? The lunatic may be examined himself, that his state of mind may be discovered, and witnesses may be adduced to show in what state of sanity or insanity he actually is; still, if he can stand the test proposed, the jury must determine all the rest.' He also observed that in a lunatic asylum the patients are often the only witnesses of outrages upon themselves and others, and there would be impunity for offenses committed in such places if the only persons who can give information are not to be heard. Baron ALDERSON, Justice COLERIDGE, Baron PLATT, and Justice TALFOURD agreed with the chief justice, the latter observing that 'if the proposition that a person suffering under an insane delusion cannot be a witness were maintained to the fullest extent, every man subject to the most innocent, unreal fancy would be excluded. Martin Luther believed that he had a personal conflict with the devil. Dr. Johnson was persuaded that he had heard his mother speak to him after death. In every case the judge must determine according to the circumstances and extent of the delusion. Unless judgment and discrimination be applied to each particular case, there may be the most disastrous consequences.' This case is also found in Denison & P. Cr. Cas. 254, where Lord CAMPBELL is reported to have said that the rule contended for would have excluded the testimony of Socrates, for he had one spirit always prompting him. The doctrine of this decision has not been overruled, that we are aware of, and it entirely disposes of the question raised here.

On the trial, a member of the Metropolitan police, who saw the deceased fall on the sidewalk and went to his assistance, was asked, after testifying to the accident, whether, while he was on his beat, other accidents had happened at that place. The court allowed the question, against the objection of the city's counsel, for the purpose of showing the condition of the street, and the liability of other persons to fall there. The witness answered that he had seen persons stumble over there. He remembered sending home in a hack a woman who had fallen there, and had seen as many as five persons fall there.

The admission of this testimony is now urged as error, the point of the objection being that it tended to introduce collateral issues and thus mislead the jury from the matter directly in controversy. Were such the case the objection would be tenable, but no dispute was made as to these accidents, no question was raised as to the extent of the injuries received, no point was made upon them, no recovery was sought by reason of them, nor any increase of damages. They were proved simply as circumstances which, with other evidence, tended to show the dangerous character of the sidewalk in its unguarded condition. The frequency of accidents at a particular place would seem to be good evidence of its dangerous character-at least, it is some evidence to that effect. Persons are not wont to seek such places, and do not willingly fall into them. Here the character of the place was one of the subjects of inquiry to which attention was called by the nature of the action and the pleadings, and the defendant should have been prepared to show its real character in the face of any proof bearing on that subject.

Besides this, as publicity was necessarily given to the accidents, they also tended to show that the dangerous character of the locality was brought to the attention of the city authorities.

In Quinlan v. City of Utica, 11 Hun, 217, which was before the supreme court of New York, in an action to recover damages for injuries sustained by the plaintiff through the neglect of the city to repair its sidewalk, he was allowed to show that while it was out of repair other persons had slipped and fallen on the walk where he was in jured. It was objected that the testimony presented new issues which the defendant could not be prepared to meet, but the court said: 'In one sense every item of testimony material to the main issue introduces a new issue; that is to say, it calls for a reply. In no other sense did the testimony in question make a new issue. Its only importance was that it bore upon the main issue, and all legitimate testimony bearing upon that issue, the defendant was required to be prepared for.' This case was affirmed by the court of appeals of New York, all the judges concurring, except one, who was absent. 74 N. Y. 603.

In an action against the city of Chicago, to recover damages resulting from the death of a person who in the night stepped off an approach to a bridge while it was swinging around to enable a vessel to pass, and was drowned,-it being alleged that the accident happened by reason of the neglect of the city to supply sufficient lights to enable persons to avoid such dangers,-the supreme court of Illinois held that it was competent for the plaintiff to prove that another person had, under the same circumstances, met with a similar accident. City of Chicago v. Powers, 42 Ill. 169. To the objection that the evidence was inadmissible, the court said:

'The action was based upon the negligence of the city in failing     to keep the bridge properly lighted. If another person had     met with a similar fate at the same place, and from a like      cause, it would tend to show a knowledge on the part of the      city that there was inattention on the part of their agents      having charge of the bridge, and that they had failed to      provide proper means for the protection of persons crossing      on the bridge. As it tended to prove this fact it was     admissible; and if the appellants had desired to guard      against its improper application by the jury, they should      have asked an instruction limiting it to its legitimate      purpose.'

Other cases to the same general purport might be cited. See City of Augusta v. Hafers, 61 Ga. 48; House v. Metcalf, 27 Conn. 630; Calkins v. City of Hartford, 33 Conn. 57; Darling v. Westmoreland, 52 N. H. 401; Hill v. Portland & R. R. Co. 55 Me. 439; Kent v. Town of Lincoln, 32 Vt. 591; City of Delphi v. Lowery, 74 Ind. 520. The above, however, are sufficient to sustain the action of the court below in admitting the testimony to which objection was taken. Judgment affirmed.


text: Talk:District of Columbia v. Arms/Opinion of the Court