Thames & Mersey Marine Ins. v. O'Connell

86 F. 150, 29 C.C.A. 624, 1898 U.S. App. LEXIS 2259

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 14, 1898
• Docket: No. 375
• Status: Published

Opinions

BOSS, Circuit Judge.

This is an appeal from a decree giren the libelant in the court below. The appellant, who was the respondent liiere, underwrote a policy of marine'insurance on the interest of Thomas O'Farrell, the libelant’s intestate, in the schooner Bob-ert and Minnie, against perils of the seas and other perils in the policy mentioned. The policy contained, among other warranties, the following:

“(4) Not to use any ports or places on the west coast of America north of San Francisco, nor islands adjacent thereto, except Umpqua and Columbia Rivers, Humboldt, Coos, and Shoalwater Bays, Gray’s Harbor, Sitka, Ounalaska, and St. Paul’s Harbor, and ports inside the month of the Straits of.Fuca; not to use any inside passage on the west coast of America north of Burrard’s Inlet, nor ports or places on the east coast of Asia, north of Shanghai, nor islands adjacent thereto, except ports in Japan; nor to use Torres Straits, nor any guano island, nor to engage in inter-island trade, nor to go on a whaling, fishing, or trading voyage. It shall and may he lawful, however, for said vessel in her voyage to proceed and sail to, touch and stay at, any ports or places, if thereunto obliged by stress of weather or other unavoidable accident, without prejudice to this insurance.”

On the margin of the policy this stipulation was written:

“It is understood and agreed that this company is not, liable for any claim resulting from using ports or places not allowed by this policy.”

While the policy was in force, the schooner, under command of O’Farrell, the assured, sailed from San Francisco bound to Suislaw River, in the state of Oregon, which was a port or place which the assured agreed and warranted that he would not use. It appears from the Pacific Coast Pilot, which was read in evidence, that this river was first reconnoitered by the Coast Survey in 1883, when the bar was found to be bad, and had only five feet of water upon it. It could then be crossed only on the flood tide near high water. It was then nearly a quarter of a mile across, and the channel narrow. But in 1887 the bar was found, not only to have changed its location, but from the northernmost point of the cliffs a great sand flat had made out fully three-fourths of a mile to the south, and changed the whole location of the bar. The Coast Pilot proceeds:

“It is therefore evident that only a local knowledge will serve to determine the peculiarities of the bar and channel at any time. * * * It is reported that the bar works around from the south to the north as far as possible, and then again breaks out near the south spit. When it is settled towards the north, it is claimed to carry nine feet of water; but that it has been less during the change. There is a sunken rock near the beach about half a mile to the southeast of the south spit.”

During the voyage from San Francisco, the schooner was driven by tempestuous weather to a point about 65 miles to the northward of the entrance of the Suislaw Hirer, having passed its entrance about 30 miles to the westward. The vessel then tacked, and proceeded to the southward, her master intending to take her into the river should he be able to secure the services of a tug to tow her in, which he expected would come out for that purpose. There was a buoy located a quarter of a mile outside of the bar, near the entrance of the river, which indicated the entrance to the channel over the bar. The schooner sailed right up to that buoy. The tug could not then come out, on account of the rougin’ \s of the bar and the lack of sufficient water thereon at the then stage of the tide. The schooner then stood off to sea about half a mile, and afterwards stood in towards, and came up to, the buoy. She then stood off again for a short time, but lost the wind, and drifted inshore to a point about one mile to the southward of the bar, where the master dropped anchor. Shortly after letting the anchor go, the heavy swell brought such a strain upon the chain that it parted, and the vessel in a few minutes drifted upon the shore, and was wrecked and totally lost. The vessel did not at any time while the policy was’ in force enter the river, nor was she nearer thereto than about one mile. The above facts were made to appear to the court below by an agreed statement, upon which the cause was determined there and is brought here.

By the fourth clause of the stipulations above quoted, the assured bound himself not to use any ports or places on the west coast of America north of San Francisco, nor islands adjacent thereto, except Umpqua and Columbia Bivers, Humboldt, Coos, and Shoalwater Bays, Gray’s Harbor, Sitka, Ounalaska, and St. Paul’s Harbor, and ports inside the mouth of the Straits of Fuca; and, by express agreement indorsed on the margin of the policy, it was covenanted that the insurer should not be liable for any claim resulting from using ports or places not allowed by the policy. This contract is the measure of the rights and obligations of the respective parties. Confessedly, Suislaw Biver was a place the assured was prohibited by the policy from using. Was not the buoy, which stood near the entrance to that river, and within a quarter of a mile from the bar and its immediate vicinity, equally a place the assured was prohibited by the policy from using for the purpose of getting into the river? Was not the point about one mile to the southward of the bar, where the assured dropped his anchor, equally a place the assured was prohibited by.the policy from using, under.the circumstances appearing in this case? Undoubtedly so; for they are all on the west coast of America, north of Ban Francisco, and neither of them is Umpqua or Columbia Biver, Humboldt, Coos, or Shoalwater Bay, Gray’s Harbor, Sitka, Ounalaska, or St. Paul’s Harbor, or any port inside the mouth of the Straits of Fuca, and neither of the places was so used by the assured in going where, under the policy, he had a right to go. Nor was the assured obliged by stress of weather or other unavoidable acciden t to sail to, touch, or stay at or near, the buoy, or at or near the Suislaw Biver, or at or near the point where he dropped his anchor. On the contrary, he. was at those prohibited places in pursuance of the intent with which he started on his voyage, and in spite oí! tempestuous weather, which, so far from taking him to the prohibited vicinity, had taken him 65 miles to the northward and 30 miles to the westward of those places. It is idle to say that he did not use the prohibited places, when the agreed statement of facts shows that the assured sailed his schooner “right up to the buoy” in the endeavor to get into the Suislaw Biver. Was he not “using” this place when be sailed bis schooner there? And did he not “use” the place about one mile southward of the bar when he dropjKid his anchor there? Undoubtedly so. Each of these places and its immediate vicinity was as much prohibited by the terras of the policy as was the Suislaw River, when used, not in going where under the terms of the policy the assured had the right to go, but in the endeavor to» enter a prohibited port.

Nothing more, we think, need be said to show that the judgment appealed from is erroneous. It is accordingly reversed, and the cause remanded, with directions to the court below to enter judgment for (he respondent on the agreed statement of facts.