PROVIDENCE WAS1UNGTON INS. 00. t7. BOWRIlfG.
613
minutes in cases of fire are also the most important. Sound policy requires that tugs which proceed promptly to the scene of danger and render accepted service shall be awarded a reasonable compensation. The fire in this case, though at first seemingly slight, occasioned considerable damage, namely, about one quarter of the value of the lighter. Her value after the fire was $17,000; that of the two tugs $15,000 and $12,000 respectively. The fact, however, that there were abundant other .means at hand to put out the fire diminishes greatly the allowance that otherwise might be properly made. A just allowance to the tugs, as their fair proportion of the whole service, will, I think, be $200 for the Adelaide, and 375 for the America; two thirds of these amounts to go to the owners of the tugs, and the other third to the officers and crews in proportion to their wages. Decrees may be entered accordingly, with costs.
PROVIDENCF.: WASHINGTON INS.
Co.
t7. BOWRING
(OircuU Ooun oj .AppeaZ8, Second 01lrcu1t. February 18, 18ll1.) No.lill.
1.
Ila.RINB INSURA:NCE-CoNSTRUCTION OJ' POLIcy-EXCESSIVE INSURANCB.
Where a vessel valued at and insured for 1100,000 is a total loss, and all the icles have been paid except one for $5,000, an action thereon cannot be defeated merely because other insurance, to the amoun t of $28, 750, .. on advances" incident to the operation of the vessel, has also been paid; and it is immaterial whether such advances were the proper subject of insurance or not, so long as such insurance did not cover the vessel or any of her belongings.
II
BAME-INSURANCE ON ADVANCES.
Where marine insurance is effected at Lloyds' "on advances)" and those words are written in the valuation clause, which already contains a pnnted description of all parts of the ship, the policy must be construed to be not upon advances for I'&,o pairs, but upon something independent of the ship, such as moneys advanced ill her business. 46 Fed. Rep. 1111, aftlrmed.
Appeal from the District Court of the United States for the Southern District of New York·. In admiralty. Libel by Thomas B. Bowring and others against the Providence Washington Insurance Company. Decree for libelant. 46 Fed. Rep. 119. Respondent appeals. Affirmed. Harrington Putnam, for appellant. Conver8 & Kirlin, for appellees. Before WALLACE and LACOMBE, Circuit Judges. WALI,ACE, Circnit Judge. By the policy in suit the appellant insured the steamship for the benefit of all persons interested in her in the sum of 85,000 against the peril by which she became a total loss. By its terms the value of the steamship was agreed upon at $100,000. The libelants, the owners of the steamship, before this suit was brought,. had been paid $95,000 by other insurers of the steamship upon policies similar to the one in Buit. They had also been paid about $28 J 750 for
tltf.4
.m:
,ic"i
FEDERAL /REPORTER,
vol. 50.
eft'eoted at Lloyds',by Hine Bros., the ma:riaging owners of the lldvances.": 'l!'he89pellant insiststh8:t the libelants had received,tb-efQll value'bfthe steamship as fixed by the policy in suit, and therefore cannot recover. Thete ,are two questions for consideration in the case: First, whether ,the insurance eflectedat Lloyds' "on'advances" was an insurance upon the',v6Sselherself, according to the proper construction of the policy; and, secondly, whether, although not denominated as such in the policy, it substance and legal .' effect an insurance' upon the vesset Thenrst question is on. oflaw, being one of the intf\rpretation of a written instrument; is one of fact, becatHe, if the term "advanceEl "signifies moneys expended ,to enhance the value of the vessel, the subject! of insurance· was really the vessel. No effect like can be given to the written words "on advances" in the valuation clause of the policy, unless they mean that the particular property to be insured and valued is something else than that which is described in the printed parts. ,The policy is in the common form of Lloyds' valued policies, which are printed with blanksfor the insertion of the particular terms' of the contract to be superadded to the printed forms. describe. generally the property covered by marine polThe pril,1ted icies, the body, tackle, apparel, and any kind of goods and merchandise of and in the ship, and contain the general conditions ,of the risk insuredagainst, while the blanks are left for the insertion of a descriptionof the particular subject of insurance and the special conditions of the risk. In a valued policy we shopld naturally expect to find the property, immediately in the contemplation of the parties as the subject of insurance. mentioned in the valuation clause; and in Lloyds' forms it is placed there, the printed part containing a description sufficiently broad to cover any part of the ship herself and any part of her cargo, leaving a blank for any other subject of insurance not properly described by the printed language. Thus, for instance, when the insurance is on the freight which the ship may earn on a particular vOj'age or during specified, period, the "on fre,ight chartered or otherwise," together with the agreed valuation, are inserted wqting. When the words "on sdvapces," together with the valuation, are inserted., they cannot be 'taker} to mean any part of the ship or cargo. because all these ate already described, not only in the valuation clause, but in the general clause descriptive of the insured property. Greater effect is to be attributed to the written parts than to the printed parts of such contracts, because they are, the immediate terms selected by the parties, whereas the others are a general formula. The sensible construction, therefore, of a. policy like, that now in controversy is that it insures advances 'against risk from loss of the ship, and the advances thus sured areso!J:ieth,ing independent of .distinct from. the ahip herself. It is proved; tRat the advances which \Yerelntended to be insured in this advanced .by the owners of the vessel in the case were business Of 'the vessel, and which were i1;1 no sense represented by the veSsel herself. 'They consisted largel,y o!,premiumsfor keeping her in-
PROVIDENCE W:A.SHINGTONINS.' CO. II. BOWRING.
615
sured, and 'they represented other expenditures, such as for coal, other supplies, pilotage, etc., for which the were liable to. account to the managing owners. The amount thus advanced may be deemed the capital of the owners at risk in conducting the business of the ship. As it was fluctuating in amount, the balance at anyone time depending upon the difference between expenses and receipts, the sum fixed in the valuation clause was intended to cover the balance which would probably be found existing at any time during the period of the risk. In caseo! a loss, if the balance proved to be larger than the valuation, the owners would lose the difference; if less, they would gain. It cannot be doubted that the capital invested in on the business of the ship is a proper subject ofinsurance. As the loss of a ship involves the loss of the money which .has been advanced in carrying on her business, to .the extent that her owners, are deprived of reimbursing themselves from her earnings, the money invested . is a marine risk. Expected profits may· be insured. E.vrev.Glover, 16 East I 218; Stockdale v. lop, 6 Mees. &W·. 224.So moneys expended for the ship's use by, the master, his commissions, and ,his privileges, are subjects of marine ailce. Kingv. Glover. 2 Bos.,& Pul. (N. S.) 206. It may be that an ance on such advances is, in substance, an,insurance upon the earnings of the ship, and that where the freight, "chartered or otherwise," is insured on a time risk, an insurance on advances would be double insurance; and it is doubtless true that insurances on advances offer a cover for frauds upon the underwriters, as, when the ship is also insured, the interest of the assured in the safety of the property is diminished. But if such an interest were not a proper subject of insurance, and if, when made so in a valued policy, the contract is void as a gambling contract, or from any other considerations of public policy, that is a question wholly between the insurer and the assured, in which another insurer has no interest. If the libelants had been paid by other insurers of the vessel the whole value of the vessel, as fixed by the policy iusuit,that would undoubtedly be a good defense to the suit, because a contract of insurance is one of indemnity against loss, and the libelants would have been already fully indemnified. But if they have received other insurance upon other property than that insured by the appellant, cumstance cllnnot avail the'latter. The appellant cannot claim the efit of any payments received by the libelants under other policies, less those policies covered .the same subject-matter of insurance. If the other policies were illegal,the sums paid. under them were pure gift.q, and do not inure to the exoneration of another insurer. Bumand v. Rodocanachi, 7 App. Cas. 333. The case relied upon by the appellant -Law v. Brit'ish American A88ur. Co., (MS.,) decided by the supreme court of Nova Scotia-is not in point, because in that case the insurance was for "advances upon the body, tackle, etc., of the ship," and the advances represented repairs upon, the vessel.by which her value was enhanced to the extent of the sums advanced. In such a case the ance· is in the concrete upon the vessel herself. The judgment below was right, and should be affirmed.
J'EDERAL REPORTER,
vol. So.
LACOMBE, eircuit Judge, (concurring.) This case is very fully set forth in the opinion oUhe'district judge. There can be no doubt that when the policies on sO'-caUed "advances" were issued both the assured and the insurers undertook to describe some interest other and different from the ownership of hull and machinery. It seems also very evident that, besides their pad ownership of the rea, the managing agents, who earn intereE.'t andcom·missions on all moneys they advance from time to time, not for' repairs, but to ketp the vessel in service, deriving a profit to themselves from such advances, controlling the vessel and her earnings so as to secure their repayment from her profits, and finding their business in such management ofthe ship, have an interest in her, not identical with that which they have as part owners, entitled to share in her profits if she' makes any.,in· her proceeds if sold, or her insurance if lost. It is not in this case to determine whether such interest was insurable, or whether the policies on advances did insure it. If they were wager. policies or the payments under them a gift, that is no defense to the claim on the policy in suit here. They were 110t intended to be hull policies,. nor paid because they were construed to be. As they purported to cover a different interest from the one defendant has insured, their payment cannot avail to relieve him from liability_
Tmc NEBSMORB. PERRY
et ale
t1. THE
N ESSMORB.
(Ctrcuoft Court, D. Maryland. .May Ill, 1899.) L:CoLL'mOlt....iS'{JIAK AND SAIL-NIGHT-LOOKOUT.
.
, ,
L8AME-:ExulluTION Ol!' FALSE LIGHTS;
Appeal from the District Court of the United States for the District oi Maryland,' , In Admiralty. Libel by Olivl:lr H. Perry and others, as owners of the schooner Joseph Wilde, against! the steamer Nessffiore for collision. Decree below holding the Nessmoresolely in fault. Decree for divided damagea.