Insurance Co. of North America v. Easton & McMahon Transp. Co.

E.D. Pennsylvania

Insurance Co. of North America v. Easton & McMahon Transp. Co.

97 F. 653, 1899 U.S. Dist. LEXIS 207

DecidedNovember 8, 1899

StatusPublished

This text of 97 F. 653 (Insurance Co. of North America v. Easton & McMahon Transp. Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Insurance Co. of North America v. Easton & McMahon Transp. Co., 97 F. 653, 1899 U.S. Dist. LEXIS 207 (E.D. Pa. 1899).

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Opinion

McPHERSON, District Judge.

The respondent is a transportation company engaged in the business of carrying freight by water between the cities of Baltimore and Philadelphia. In October, 1897, it received at Baltimore upon one of its barges, the W. E. Weller, 230 tons of coal belonging to the Montana Coal & Coke Company. The coal was consigned to Philadelphia, and the bill of lading bound the respondent to deliver the cargo in good order, “the dangers of the seas only excepted.” The barge was one of five that were lashed together in tow of a tug; two being first, and three, of which the Weller was one, being second. The tow left Baltimore in the afternoon, bound east across the Chesapeake Bay, and during the night encountered a fresh breeze that caused the barges to roll somewhat, and to bump against each other with some degree of force. The wind was not violent, and there was nothing about the weather or the motion of the boats to suggest danger to the men on board of the barge. In the morning the Weller was discovered to be leaking, and efforts were made to pump her out. When these were found to be unavailing, the tug tried to tow her into shallow water, but before this point was reached the barge sank, and the coal became a total loss. The tug was not in fault, either during the night or after-wards. The libelant, who had insured the coal, paid the loss on November 27, 1897, and brings this action for reimbursement.

The respondent agreed to deliver safely, the dangers of the seas alone excepted, and must, therefore, assume the burden of proving that the loss was occasioned by a peril of the excepted class. If it [655]*655has failed to prove that fact, it must be held liable, even if the cause of the disaster does not clearly appear. The respondent averred that a violent wind brought about the loss by causing the barges to bump together, and thus starting a leak in the Weller that could not be controlled. In my opinion, the evidence fails to establish the averment. Whatever may be the test of a peril of the seas, this much, at least, may be safely said: The injurious force must be unusual; it must be out of the ordinary run of events, — such a violent happening as is not fairly to be expected. Justice Story’s definition in The Reeside, Fed. Cas. No. 31,657, is well known:

“The líbrase, ‘danger of the seas,’ whether understood in its most limited sense, as importing only a loss by the natural accidents peculiar to that element, or whether understood in its more extended sense, as including inevitable accidents upon that element, must still in either case be clearly understood to include only such losses as are of an extraordinary nature, or arise from some irresistible force or some overwhelming power, which cannot be guarded against by The ordinary exertions of human skill and prudence.”

This was approved in Garrison v. Insurance Co., 19 How. 312, and in Richards v. Hansen (C. C.) 1 Fed. 61. Anq flier definition may be found in The Warren Adams, 20 C. C. A. 486, 74 Fed. 415:

“No loss which is the result of ordinary wear and tear, or a necessary consequence of the employment of the vessel in the usual course of navigation, is a loss by ‘perils of the seas.’ That term may he defined as denoting ‘all marine casualties resulting from the violent action of the elements, as distinguished from their natural, silent influence, upon the fabric of the vessel; casualties which may, and not consequences which must, occur.’ ”

Tried by either of the tests found in these citations, the evidence falls far short of proving the existence of a wind of an “extraordinary nature,” — such a wind as might fairly be described as an “irresistible force” or an “overwhelming power,” or even such a wind as might be described as “violent.” At the most, there was a moderate breeze, not stronger than might be expected upon any voyage in the Chesapeake Bay during the month of October; and, if the Weller was injured by bumping against her consorts while such a wind was blowing, she was injured by an ordinary, and not by an extraordinary, accident of the voyage. If the loss was not due to an injury then received, it is unimportant to inquire what may have done the harm; for, as already stated, the bill of lading binds the carrier to deliver safely in every other event than the intervention of some peril of the sea. Whether caused by the breeze, therefore, or by some undisclosed agency, the loss does not appear to have been occasioned by a danger of the excepted class. The result is that the ordinary liability of a common carrier remains.

A decree will he entered in favor of the libelant for $460, with interest from November 27, 1897, and costs.

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McPHERSON, District Judge.

The respondent is a transportation company engaged in the business of carrying freight by water between the cities of Baltimore and Philadelphia. In October, 1897, it received at Baltimore upon one of its barges, the W. E. Weller, 230 tons of coal belonging to the Montana Coal & Coke Company. The coal was consigned to Philadelphia, and the bill of lading bound the respondent to deliver the cargo in good order, “the dangers of the seas only excepted.” The barge was one of five that were lashed together in tow of a tug; two being first, and three, of which the Weller was one, being second. The tow left Baltimore in the afternoon, bound east across the Chesapeake Bay, and during the night encountered a fresh breeze that caused the barges to roll somewhat, and to bump against each other with some degree of force. The wind was not violent, and there was nothing about the weather or the motion of the boats to suggest danger to the men on board of the barge. In the morning the Weller was discovered to be leaking, and efforts were made to pump her out. When these were found to be unavailing, the tug tried to tow her into shallow water, but before this point was reached the barge sank, and the coal became a total loss. The tug was not in fault, either during the night or after-wards. The libelant, who had insured the coal, paid the loss on November 27, 1897, and brings this action for reimbursement.

The respondent agreed to deliver safely, the dangers of the seas alone excepted, and must, therefore, assume the burden of proving that the loss was occasioned by a peril of the excepted class. If it [655]*655has failed to prove that fact, it must be held liable, even if the cause of the disaster does not clearly appear. The respondent averred that a violent wind brought about the loss by causing the barges to bump together, and thus starting a leak in the Weller that could not be controlled. In my opinion, the evidence fails to establish the averment. Whatever may be the test of a peril of the seas, this much, at least, may be safely said: The injurious force must be unusual; it must be out of the ordinary run of events, — such a violent happening as is not fairly to be expected. Justice Story’s definition in The Reeside, Fed. Cas. No. 31,657, is well known:

“The líbrase, ‘danger of the seas,’ whether understood in its most limited sense, as importing only a loss by the natural accidents peculiar to that element, or whether understood in its more extended sense, as including inevitable accidents upon that element, must still in either case be clearly understood to include only such losses as are of an extraordinary nature, or arise from some irresistible force or some overwhelming power, which cannot be guarded against by The ordinary exertions of human skill and prudence.”

This was approved in Garrison v. Insurance Co., 19 How. 312, and in Richards v. Hansen (C. C.) 1 Fed. 61. Anq flier definition may be found in The Warren Adams, 20 C. C. A. 486, 74 Fed. 415:

“No loss which is the result of ordinary wear and tear, or a necessary consequence of the employment of the vessel in the usual course of navigation, is a loss by ‘perils of the seas.’ That term may he defined as denoting ‘all marine casualties resulting from the violent action of the elements, as distinguished from their natural, silent influence, upon the fabric of the vessel; casualties which may, and not consequences which must, occur.’ ”

Tried by either of the tests found in these citations, the evidence falls far short of proving the existence of a wind of an “extraordinary nature,” — such a wind as might fairly be described as an “irresistible force” or an “overwhelming power,” or even such a wind as might be described as “violent.” At the most, there was a moderate breeze, not stronger than might be expected upon any voyage in the Chesapeake Bay during the month of October; and, if the Weller was injured by bumping against her consorts while such a wind was blowing, she was injured by an ordinary, and not by an extraordinary, accident of the voyage. If the loss was not due to an injury then received, it is unimportant to inquire what may have done the harm; for, as already stated, the bill of lading binds the carrier to deliver safely in every other event than the intervention of some peril of the sea. Whether caused by the breeze, therefore, or by some undisclosed agency, the loss does not appear to have been occasioned by a danger of the excepted class. The result is that the ordinary liability of a common carrier remains.

A decree will he entered in favor of the libelant for $460, with interest from November 27, 1897, and costs.

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