The Windber

209 F. 131, 1913 U.S. Dist. LEXIS 1092

• Court: District Court, N.D. California
• Decided: October 3, 1913
• Docket: No. 15,333
• Status: Published

Opinion

DOOLING, District Judge.

Exceptions of libelant to the following portion of claimant’s answer:

“IV. That said bills of lading further provided that in case of any loss, detriment, or damage done to or sustained by the said goods, or any part thereof, for which the carrier would be liable to the shipper or consignee, the carrier should have the full benefit of any insurance that.may have been effected upon, or on account of, said goods. That claimant is informed and believes, and therefore alleges, that libelant herein was covered by insurance on said merchandise; but claimant has no knowledge as to whether libelant has collected any portion of said insurance, and for that reason demands that proof of the same be made that, if said goods were damaged from any cause for which claimant is liable, claimant herein claims the benefit of said insurance.”

It was held in Phoenix Insurance Co. v. Erie & Western Transportation Co., 117 U. S. 312, 6 Sup. Ct. 1176, 29 L. Ed. 873, that a provision in a bill of lading that the carrier, when liable for the loss, shall have the full benefit of any insurance that may have been effected upon the goods, is valid as between the carrier and shipper, and that the right, by way of subrogation, of an insurer, upon paying the loss, to recover over against third persons, is only the right which the assured himself has. And in Liverpool Steam Co. v. Phœnix Insurance Co., 129 U. S. 397, 9 Sup. Ct. 469, 32 L. Ed. 788, the same doctrine is impliedly, if not directly, reiterated. The rights of the various parties, the shipper, the carrier, and insurer, must be determined by the .provisions of the bill of lading and the policy of insurance, and in the case last above cited the failure of such a defense as is here set out arose from the bill of lading itself.

In Walter Baker Co. v. New York, N. H. & H. R. Co. (D. C.) 162 Fed. 496, the defense was based on the proposition that the libelant should first proceed against the insurer, which defense was held untenable. In Inman v. South Carolina Ry. Co., 129 U. S. 128, 9 Sup. Ct. 249, 32 L. Ed. 612, the defense was held unavailable because of' express provisions in the policy that:

“Any act of the insured waiving or transferring or tending to defeat or decrease any such claim against the carrier, * * * whether before or after the insurance was made under this policy, shall be a cancellation of the liability of the said insurance company”

—the court holding that under such provision the insurance could not be made available to the carrier. In the case at bar it is impossible at this stage of the proceedings to determine just what the rights of the various parties are. The provisions' of the insurance policy, are not before the court, and, being unknown to claimant, cannot be set out in his answer. What is really sought by the parts of the answer excepted to is that the provisions of the insurance policy be disclosed, and that proof he made as to what, if any, amount has been collected thereon. When' these facts are disclosed, they may or may not constitute a defense pro tanto to the libel. But whether they do constitute such defense or not cannot be ascertained in advance of such disclosure.

The exceptions other than those dealing with the substance, rather than the form, do not seem to require any discussion. I am of the opinion that claimant is entitled to the information sought, and the exceptions to the answer are therefore overruled.