Newtown Creek Towing Co. v. Ætna Insurance

The action is founded upon a contract of insurance made by the defendant, which is, by its heading, characterized as “Towers’ Liability,” whereby the defendant insured the plaintiff against such loss or damages as the steam tug Rambler should become legally liable for, from “any accident caused by collision ™d stranding” in certain waters, including the North river, and “to fully indemnify the assured for loss and damage arising from or growing out of any accident caused by collision a”d stranding, to any other vessel or vessels, their freight and cargoes (or each or any of them), for which said steam tug or its owners may be legally liable.” This policy was made in October, 1893, for the term of one year. In February,. 1894, the canal boat John McMahon, loaded with a cargo of coal, being in tow of the steam tug Rambler down the North river, off' Thirty-Eighth street, New York City, suffered an accident by striking a floe of ice in such manner as to make a hole in her bow, and she sánk. The plaintiff was charged with liability for the loss of the canal boat and cargo. And the only question presented for consideration is whether the cause of the injury and loss came within those against which the defendant undertook to indemnify the plaintiff, and that depends upon the meaning which may be given to the-word “collision” in the contract.

The question, in its application to a policy similar to this one, does not, so far as we are advised, seem to have been considered in any

“It means collision with another ship, and does not mean either dock, or sand bank, or floating wreck, or anything but the ordinary meaning, in my judgment, oí collision.”

The claim in that case was for partial loss on a cargo of wheat insured by an ordinary Lloyd policy, “free of average, unless general, or the ship be stranded, or in collision from Lynn to Caen.” The strict nautical definition there given is said to have been by common usage relaxed in its general application and effect. Spencer, in his work before mentioned, added to his statement of such strict definition of the word “collision” that:

“Common usage, however, has extended the application of the term so as to include the impact of a vessel with other floating objects.. The term, in its strict legal sense, does not include the contact of the vessel with rocks, sunken obstructions, or other fixed structure. Losses arising from such mishaps are more properly embraced within the meaning of the term ‘stranding.’ There are, however, species of losses arising from the striking of vessels with visible fixed structures, such as bridges, docks, piers, and buildings adjacent to navigable waters, that cannot be properly regarded as strand-lugs, and which are species of collision, though not coming strictly within the legal definition of that term. So that it may with no great impropriety be said that collisions are of two classes: those occurring between vessels and other floating objects, and those occurring between vessels and fixed or stationary objects. Some uncertainty has been expressed as to how far the term ‘collision’ is applicable to impact between floating, bodies. In the case of Richardson v. Burrows, Lord Coleridge held that the striking of a ship on a field of ice was not a collision, within the meaning of the terms of a policy of insurance. The French courts restrict the definition of the term to contact between vessels. It would seem that this definition is too narrow.”

In the case of The Moxey, Judge Betts said that:

“Common usage, however, applies the term [collision] equally to cases where a vessel is run foul of when entirely stationary, or is brought in contact with another by swinging at her anchor. * * * I do not think that the term ‘collision,’ as used in the maritime law, is to be construed with the absolute strictness contended for by the claimant’s counsel.”

The Moxey Case was an action in rem for an alleged cause in the nature of a marine tort, and it may be assumed that the support of the action was not dependent upon a collision strictly as such in the legal sense of the term. And the same may be said of many cases cited by the plaintiff’s counsel both in rem and in personam, where the libelants recovered, and in which the judges, in delivering the opinions of the courts, used the term “collision” in reference to the accidents from which the actions arose. In those cases of alleged marine torts the collisions were such as to support admiralty jurisdiction for the purposes of relief. Beyond that they did not

Our attention is called to no case in this country recognizing the force of such strict interpretation of the term “collision” in its use in contracts of insurance. In London Assurance v. Comparhia De Moagens Do Barreiro, 15 C. C. A. 379 , 68 Fed. 247 , it was held by the circuit court of appeals that one vessel in motion running into another at rest at the wharf was a collision which charged the insurance company with liability for the injury to the latter vessel. The court there said:

“Was. then, the Liscard in collision within the meaning of the contract of Insurance? We think that she was. Undoubtedly, in an admiralty sense,

there was a collision, notwithstanding the fact that the Liseard was at rest, and moored, whom she was run into.”

The present case is upon a contract, and it may be said to be a maritime contract. Insurance Co. v. Dunham, 11 Wall. 1 . It was made with a view to a particular business confined to waters in the-neighborhood of and within New York. So far as it may be consistently with the terms of the contract, it is to be liberally construed in favor of the assured with a view to the indemnity which such party was permitted by its provisions to assume was within the purpose of the undertaking of the underwriter, and therefore the latter cannot avail itself of any ambiguity in language to the prejudice of the-plaintiff. Rickerson v. Insurance Co., 149 N. Y. 307 , 43 N. E. 856 ;. Henshaw v. Insurance Co., 2 Blatchf. 99 , Fed. Cas. No. 6,387; First Nat. Bank v. Hartford Fire Ins. Co., 95 U. S. 673 . The policy was-not made, and does not have the effect, to insure the plaintiff against damages to the tug, but to indemnify it against the consequences of" liability to other vessels towed by it in such waters. In this respect it is somewhat analogous to the system of insurance adopted in late-years to indemnify corporations and individuals against the consequences of injury to others and their property by the negligence of" the employés and servants of the assured. The contract is on its-face designated as insurance of “towers’ liability.” In its common, acceptation, the word “collision” imports the act of colliding, a striking together, violent contact. It is, however, in the admiralty sense-that it is to be considered here, and it has been seen that in such sense, for the purposes of relief by libelants, it is not confined to vessels coming in contact with vessels, but includes that of vessels-coming in collision with any moving or stationary objects; such, for instance, as collision with a pile, driven piles,' sunken hull of a vessel,, drawbridge, a dredge at anchor, floating derrick, and other objects on or beneath the surface of the water. When we get away from the-strict nautical and legal definition of the term “collision,” where is the-limit of the application of it within the cases which, as collisions in the broader sense, are the subject of admiralty jurisdiction, and in. which claims are supported by adjudicated liability in that jurisdiction? It seems to me that, as applied to the policy in the present' case, the strict meaning of the term contended for has the support neither of authority nor well-founded reason. The contract on which the action is brought is one of indemnity from the consequences of" liability for such maritime torts as come within its purpose, and that purpose is to be considered in its interpretation. Thus may be found' the sense in which the defendant had reason to suppose the term employed may have been understood by the plaintiff. The term “collision” is susceptible of application to any violent contact of a vessel with another object. We think that in this contract it has the-broader and more comprehensive admiralty import. In that view the inquiry arises whether the injury in question was the result of a collision. The evidence of the master in command of the tug is to the effect that the canal boat McMahon, towed into a floe of ice, was struck by a cake of ice, in the bow, making a hole in her, and in-consequence she sank. The witness stated that he could not tell.

That the collision and its consequences were the subject of admiralty jurisdiction is established by the fact that it was effectually made so on a libel filed by the owner of the canal boat, and a recovery had against the steam tug, founded upon the charge of collision, and damage as the consequence, occasioned by the negligent fault of the tug. The Rambler, 66 Fed. 355 . This was a maritime tort, as are all cases of claims based upon the charge collision. In the view taken of the contract of indemnity, the cause for which the libelant recovered against the plaintiff grew “out of an accident caused by collision” within its purposes as manifested by its terms.

The judgment should be reversed, and a new trial granted; costs to abide the event.

HATCH, J., concurs.

(concurring). I concur in the opinion of Mr. Justice BRADLEY upon the grounds stated by him, but desire to add one or two other considerations.

The admiralty rules of the supreme court of the United States (rule 23) require that the libel in instance causes, civil or maritime, shall state the nature of the cause,—as, for example, that it is a cause, civil or maritime, of contract, or tort, or salvage, etc., as the case may be,—in addition to the article actually setting out the facts. Under this rule it has been and is the constant and uniform practice in the United States district courts to comply with this requirement in the caption of the libel, where it is customary to use such words

As the policy, by well-sustained authority (First Nat. Bank v. Hartford Fire Ins. Co., 95 U. S. 673 ), is to be construed most strongly against the underwriter where there is ambiguity, it is important to remember that, if the intention of the company had been to limit the warranty to cases of collision between vessels, it might, by apt words, have made such limitation, and did not do so. Such was the limitation in the policy in the case of McGowan v. Baine, referred to by Mr.' Justice BRADLEY, where the words were, “collision with any other ship or vessel”; and other cases contain similar clauses. In the latest (third) edition of Marine Insurance, Notes & Clauses, by

“Here the damage must presumably have been originated by collision, but the meaning of the word ‘collision’ is not defined. If collision with another ship or vessel be meant, the clause should be more explicit. Interpreting the clause as it reads, and especially when read in connection with clauses 2, 3, 4, and 10, it would appear that damage actually caused by collision with an iceberg, floating wreckage, • or a buoy, would be recoverable.”

In an old law book on collisions, published at Frankfort in 1745 (The Works of Samuel Strykius, volume 7, cap. 2, § 1), and written in Latin, is a passage which may be translated as follows:

“Considering the thing generally, therefore, the collision of ships is nothing else than when a ship is driven upon some impediment,—for example, upon sands, rocks, a spile, etc.,—and so incurs injury by their dashing together. But in the sense more especial and stricter to us, it is when two-ships, while sailing, run against each other, and so one is dashed upon the other, and thereby injury is inflicted upon the ship and the goods in it contained, or the ship utterly perishes.”

It will be observed that this occurs, not in a treatise on insurance, but in one on collision; and I have already adverted to another rule which appertains to an underwriter. I have been unable to find any exact authority upon the question involved in the use of the word “collision” in this policy, but I am constrained to the opinion that the policy was intended to cover an accident like the one in question.

There is one exception which requires consideration. The plaintiff asked: “What is the understanding in insurance circles, among insurance companies and insured and underwriters, as to the meaning of the word ‘collision,’ as used in this policy?” The defendant objected to this question as “incompetent and irrelevant.” If this question had followed testimony that there existed an understanding of some kind on the subject, the answer to the question would have been admissible, and I do not think that this was obviated by the fact that the objection and ruling did not specifically state that the testimony was objected to for that reason. It is true that a more pointed objection would have suggested to the plaintiff’s counsel the vice of his question, but courts are not called upon to suggest methods of examination to experienced counsel. As the evidence stands, I think there was no error in the exclusion of the evidence; but the omission referred to, if it be one, can be supplied on a new trial, and evidence of a custom and understanding, if one exists, can be adduced for the consideration of the jury.

For the reasons stated, I think that a new trial should be granted.

(dissenting). I concur with Mr. Justice BRADLEY that the term “collision,” as used in this policy, should not be confined to what may be regarded as its strict nautical and legal acceptation; but I am of opinion that, even in the broadest use of the term,, colloquially or otherwise, “collision” would not be understood as including the injury which happened to the vessel covered by this policy.. To my mind, “collision” would only include contact with or impact upon foreign bodies present in the water, and not even to every case of that kind. Here the injury was occasioned by the attempt to passthrough

BARTLETT, J., concurs.