,;170 this obtflo/Dmg c;argo for lhe Sll.JI1 notwithstandmg he had made. arrangements forprocutiQg ;in ample time to have loadedIler the period twenty-two nUlningdajs,'but for said drought and storQis." .,. . "'.,. . . . ,. '; , " '. 1:'his caSe also{ssimilitr'totliat of Soren,senv: lteyseJ'; ;52 Fed. Rep. 163. (just decided.)1'he differences are that, the lay days for loading cargo are as "running days! and legal holidays excepted." instead of worklllg days. a lesser rate of dem urrage, and that the cargo to be furnished was, to ,be bewn orsawnpitcp pine timber. :rrotIlthe demurrage days claimed. and.;Or<iillarily expliingon j'ebruarylst. we deduct February l::Ith. a stormy leaVing 35. days for which demurr/l:ge is due at £12 per day. :E'or the,reasoll given inSu1'6fI,$en ,v. Keyser. it is ordered that the decree of the distric!tcollrt appealed from be and the same Is hereby reversed; and that this cause be remanded to the district court. with instructions to enter a de· cree In favor of libelants In the Bum of $2.043.72, and coots. together with the costs of this appeal. the
MARK
et al.v. HOME INs. CO. OF NEW YORK. SUE V. ORIENT INS. OF HARTFORD, SAME 11. BRITISH-AMERICA INS. Co. OF TORON',ro, CANADA. Co. , :, :(1Ji.trlet Court, S.D.,New York. Jul,y 28. 1892.) ,l\B-RlDlI:R-;:-CONBTRlJOTION-EXC!ll'TION OF PARTICULAR
.
J4,aINli
..· An fnsurance iDlluted'a 'VesselagMnst fire on" all inland waters lIlI" far .', 'iouth as'Norfolk;Va," Afterwards l\ rider was attaebed.t;O the policy, jl;iving permission to the tug to go as far south as Charleston. "but.not to cover on trips either way between Norfol1l:>:anf!.' .Charleston. " On b.er .wfloY from Norfolk to Cbarlest{)n. and while north of Norfolk·.the tug caught fire and ",as burned. HeW ,tba,t, being Ilot the time on atrip':!:Ietween 'Norfolk and Oharleston, the wording of .Jthe rider prevented· al11receW$'y' on the pollo)'. even1t the loss 0c:curred on "'nland waters." .
TRIP;
In Adinitalty. Libel on policies of marine'insurance. Libel dismissed. .' .....; !Benedict, .for .' Carpenter & Mosher, for respondel1 ts.,·
In 'about Janllary.1890, thuespondents issued policies of marine insurance by which they insured the libelant for one yea1'sgainst loss by fire, etc., on the tug D. L. Flanagan, in tpe,llbays and harbor of New York, East and' North or Hudson rivers, whtersofNewJeraey, Long Island soun&andshores. and as far as New ·. and alZirdand waters as far. south' as NorfQlk, Virginia, and all wate1'$ a.djl:l.Cent, 'or 'tributary to apy of the above waters." descripti.onof the waters Rp.<lplaces privileged to be used wasta print, clause in, italics, which was in writing. , Oil JUDEl'12pS90, a rider waS atta(lhed to the policy as follows: .... "l,'ermills!<>nfs·herebY given L.Flanagan touse port and harbor of Qh"rl,estQn,and to go ll.star as the jetties at bilt not to cover on trips either way bt:tweenNorfolk a!ldCharleston." . ,BROWN, District
· MARK
v.
HOME INS. CO·. "
171
On June 16, 1890, at 1:15 A. M., the steam tug left Norfolk, Va., on a trip to Charleston. At about 3:30 A. M. fire was discovered by the second engineer in the boiler room, and ir a few moments the fire hurst up through the hull, to the serious damage of the tug. There is a. serious conflict in the evidence as to the position of the tug, whether she was inside or outside of Cape Henry, at the time when the fire was discovered. I do not, however, find it necessary to determine this point, for the reason that there is no doubt that when the fire broke out the tug was not at Norfolk, nor within the port of Norfolk, but was upon a trip between Norfolk and Charleston; and Tam of'the opinion that the language of the rider is so explicit and unambiguous, that it cannot properly be narrowed by legal construction so as to make t.he policy cover any part of the trip to Charleston, even while within the inland waters of Chesapeake bay. It is urged that the rider was intended as an additional privilege, and not to narrow the extent of the previous insurance which would at least cover the inland waters of Chesapeake bay, and the "waters adjacent thereto." This argument at first impressed me with considerable force. It seems to me wrong, however, to yield to it. The rider does, in some respects, undoubtedly, extend the scope of the insurance, by giving the privilege of the use of the port and harbor of Charleston, and the waters as far as the jetties. But in granting 1his additional privilege, which appears to have been without any additional consideration, it was surely competent to the insurers to annex to it such a condition, or exception, as they saw fit. And when they explicitly say, "not to cover on trips either way between Norfulk and Charleston," it seems to me that the court has no right to hold that the exclusion means anything less than what the words themselves import, namely, the whole trip from port to port. H it were necessary, or proper even, to inquire what reason there might be for such an exception, it is quite plain that the conditions involved in the preparation the equipment of the tug for the prosecution of a trip between Norfolk and Charleston, would necessarily be quite different from her equipment and preparation for river, or harbor or inland business. The liability of the tug to accidents within the policy while prosecuting such a trip might be greater, not merely when on the high l'eas, but at all stages of the voyage. Without regard, however, to the increased risks, it is sufficient to say that the express exception of the rider is so clear and unambiguous as not to admit, as it seems to me, of any restriction under the rules of legal construction. On this ground the libels must be dismissed, with costs.
172
REPORTER,
vol. 52.
THE VlOLA. V. UNITED STATES.
(Circuit Court, E. D. Pennsylvania.
July I, 1892
1.
SALVA-Gll-WHAT CONSTITuTEe':"'ToWAGll.
Towing into port a lightship whicb had broken adrift during a severe storm, and been carried put. to sea, is not a salvage service, wben the lightship was not in peril when she was taken into tow, and could, with a little delay, have reached a lJlace of safety without assistance. .
2,. TOWAGE 8ERVICIlls--COMPENSATION.
In determining .the compensation for a towage service, the value of the towing vessel and cargo, the risk incurred, the fact that the vessel was not intended or adapted for. towage service, thecbanoe.pf endangering the towing vessel's insurance, the time spent in and the danger incurred by lying by the vessel towed before the towing could commence, and the time spent in deviating from her course, 'may be· considered, although: thesetvice rendered does not amount to a salvage service.
Act March 3, St. at Large, 'p. 505,) by LawrAnce Murray, master of the British Viola, to recover for services ren!lered in United States lightship No. 45 into port. Decree for libelant·. John F: Lewis, (Curtis Tilton;' of Qounsel,) for libelant, cited, as to what a service:: The Saragosaa, 1 Ben. 551; The Charles Adolphe, SW!lb; 155j The Reward, 1 W. Rob. 177; The Charlotte, 3 W. 71. Robert Rulston,Asst. U. S. Atty., and Ellery P. Ingham, U. S. Atty. Tbe service rendered was not salvage, but towage, whicb has been described to be "the employment of one vessel to expedite the voyage of an· other, 'where nothing more is required than the accelerating her progress." Dr. LUSHINGTON, in The Princess Alice. 3 W. Rob.13S. at page 140; Carver. Carriage by Sea, § 340. p. 343. BUTJ.ER, District Judge. On the night of April 8th, during a very severe storm, the government lightship No. 45, worth about $50,000, (anchored oft'the coast of Delaware,}broke adrift, and was carried out to sea. She was well equipped for keeping afloat, and sufficiently provisioned for a three months' voyage. Her crew consisted of a mate and five men,-the mllster being onshore. While the storm lasted she was kept before the wind, and untilit passed she could not get back, without aid. She rll,iSed a signal indicating her desire for towage, and, after passing two vessels unable to render this service, she met and came into communication with the steamship Viola, a large vessel loaded with sugar and bound for New York. This vessel, deeming it unsafe to attempt the service until the storm should abate or moderate, remained by until the next day when she took the lightship in tow, under the circumstances described by the witnesses, and brought her to Cape Henry, a distance of about 125 miles. In doing this the Viola was compelled 1 Reported
by Mark Wilks Collet, Esq., of the Philadelphia bar.