
    PENNSYLVANIA R. CO. v. MANHEIM INS. CO.
    
    (District Court, S. D. New York.
    April 24, 1893.)
    1. Marine Insurance — Conditions oe Policy — Construction.
    The policy of insurance on lihelant’s goods contained the following provision: “It is understood and agreed that in case any agreement toe made toy the assured with any carrier, toy which such carrier stipulates to have, in case of any loss for which he may toe liable, the benefit of this insurance, then, in that event, the insurers shall be discharged of any liability for such loss hereunder.” The through bill of lading under which libelant’s goods were transported contained ttois stipulation: “And any carrier toy water, liable on account of loss of, or damage to, any of said property, shall have the full benefit of any insurance that may have been effected' upon, or on account of, said property.” Held, that the application of the clause in the policy must be confined to those cases, only, when the carrier was liable for Hie loss, and that the policy remained in full force as respects losses by sea perils, for which the carrier was not legally responsible.
    S. Sam® — Damage to Lighter — Unknown Obstruction.
    Where a lighter toelongiug to one carrier, a railroad company, loaded with libelant’s goods, was directed by the employes of a second carrier, a steamship line, to move in a slip, and in so moving she grounded on a shoal in the slip, and was then pierced by a log, the existence of which was up to that time unknown, it was held that the damage was not caused by negligence of either of the carriers, and that (he insurance company which had insured the cargo was liable.
    In Admiralty. Libel by the Pennsylvania Railroad Company against the Manheim Insurance Company on policy of marine insurance. Decree for libelant.
    Robinson, Biddle & Ward, for libelant.
    Butler, Stillman & Hubbard, for respondent.
    
      
       Reported by E. G-. Benedict, Esq,, of the New York bar.
    
   BBOWN, District Judge.

Tbe above libel was filed to recover insurance upon a quantity of lard in tierces, upon a marine policy covering perils of tbe sea, issued by tbe respondent.

' Tbe lard was consigned to Rotterdam upon a tbrougb bill of lading issued by tbe Pennsylvania Railroad Company, wbicb brought tbe lard by rail to Harsimus Cove, Jersey City, tbe termination of tbe railroad, and sent it tbence by lighters to tbe pier of tbe Netherlands Line of steamers by wbicb it was to be transported to Rotterdam. On tbe following day, March 11, 1892, tbe lighter, with several other boats, was directed by tbe employes of tbe line of steamers, to be moved out into tbe slip in order to make room at tbe dock for an incoming steamer of that line. Tbe lighter containing tbe lard was tbe outer boat and was shoved upon a shoal or spit near tbe middle of tbe slip. Tbe tide was falling, and in about an hour afterwards, when tbe boats were moved back towards tbe dock, tbe lighter was found to be fast; and she soon after careened, and dumped tbe lard in question overboard. Subsequent examination showed that a bole was stove tbrougb her bottom; and a log with a number of projecting spikes some 10 or 12 inches long, a piece of some wreck, was found on tbe shoal where tbe boat was injured. Tbe stevedore who directed tbe removal of tbe boats, was atvare of tbe shoal; but no one appears to have bad any knowledge of tbe existence of any such obstruction as tbe log with spikes; nor is there any evidence when it came there or how long it remained.

The insurers and both carriers denied any liability for tbe accident; and tbe libelant finally made an arrangement to advance to tbe shipper thé amount of tbe damage, and took an assignment of tbe claim against tbe insurance company, and filed tbe above libel.

Tbe answer denies that the loss arose tbrougb any peril of tbe sea covered by tbe insurance policy; and it also sets up a special condition of the policy in tbe following words: '

“It is understood and agreed that in case any agreement he made by the assured with any carrier by which such carrier stipulates to have, in case of any' loss for which he may be liable, the benefit of this insurance, then in that event the insurers shall be discharged of any liability for such loss hereunder.”

• Tbe tbrougb bill of lading provided for transportation by the Pennsylvania Railroad to New York and tbence by the Netherlands American Line of Dutch steamers to tbe port of Rotterdam, and at tbe end of its tenth condition contained tbe following stipulation:

“And any carrier by water liable on account of loss of or damage to any of said xu'operty, shall have the full benefit of any insurance that may have been effected upon or on account of said property.”

1. The first ground of defense evidently cannot be sustained. Tbe loss was damage by sea water, arising, not in tbe ordinary course of grounding- in tbe slip, but from careening consequent on tbe settling of the boat upon a dangerous log, not before known. This was an accident, such as occasionally arises in tbe ordinary bundling of lighters in the harbor, in course of transit; and in such transit as was contemplated both by the policy and by the bill of lading. Upon a loss happening in (hat way, it makes no difference, as between the insurer and the insured, whether the original grounding and settling on the log was by some one’s negligence, or without negligence. The immediate and proximate cause of the loss as between the insurer and insured was a sea peril, covered by tire policy. Potter v. Insurance Co., 2 Summ. 197; Insurance Co. v. Sherwood, 14 How. 351, 365, 366; Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 438, 9 Sup. Ct. Rep. 469; The Xantho, L. R. 12 App. Cas. 503, 510; Earnmoor S. S. Co. v. Union Ins. Co., 44 Fed. Rep. 376. If this approximate cause arose through anterior negligence, the insurers, on paying the loss, would have, by equitable subrogation, a claim for indemnity against: the negligent party, if ill ere were no contraed: with the carrier Tire-venting such recourse against it.

The object of the clause above quoted from the policy is to retain unimpaired to the insurance company its right of indemnity over against any carrier whose negligence has caused the loss, or else to be “discharged of any liability for such loss.” The carrier in tailing the goods may stipulate to have the benefit of any insurance that the shipper may effect; and where this stipulation is made, as in this bill of lading, ii: defeats the insurer’s right of indemnity against (he carrier. Phoenix Ins Co. v. Frie & W. Transp. Co., 117 U. S. 312, 6 Sup. Ct. Rep. 750, 1176; California Ins. Co. v. Union Compress Co., 133 U. S. 387, 10 Sup. Ct. Rep. 365; Chicago, St. L. & N. O. R. Co. v. Pullman South. Car Co., 139 U. S. 79, 11 Sup. Ct. Rep. 490. The clause in the policy is io be interpreted with reference to ibis object. Its effect should not be ex (ended by const ruction beyond its natural significance and presumed object. 3¡s language is in fact fully satisfied by the construction that: con-iines its application to those cases only where ¡he carrier is liable for the loss. The words “such loss” necessarily mean a Joss for which the carrier is liable. The policy, therefore, remains in full force as respects losses by cea perils to which the carrier-has not contributed by any negligence, and for which he is in no way legally responsible. On any oilier construction the whole policy would become void by the simple tailing of this bill of hiding, although (he loss might be wholly independent of any acts of the enrrier.

In the present cape, if the loss arose through negligence, it is immaterial whether (he negligence was on the part of the railroad company, or of the line of steamers. For both were carriers and the stipulations of the bid of lading and of .(he policy apply alike to each. Hence if either is liable for this loss, the clause in the policy would become operative, and the insurers be discharged of liability for this particular loss.

But in order to make this clause operative, it is essential that the loss he shown to have arisen through the negligence of the one carrier or the other; and in the present case 1 do not think such negligence is established. The burden of proof is upon the respondent. Northwest Transp. Co. v. Boston Marine Ins. Co., 41 Fed. Rep. 793, 797. The evidence is too meager to warrant a finding of negligence in the carrier. The grounding of such boats in the slips is not uncommon. This shoal was of mud and sand; it was known to the stevedore. No previous accident from grounding in the slip is shown. The kind of damage proved is not such as would naturally arise from grounding on a dangerous bottom, viz.: the twisting, the hogging or the breaking of the boat; but a hole through the bottom, such as would arise from the log with spikes found there the next morning. It was undoubtedly some accidental and recent accretion. There is no evidence of negligence in examining the slip, or that grounding in it was dangerous. No prior knowledge of this log is proved; nor any neglect of reasonable care. Accidents from such causes occasionally happen without negligence imputable to any one. Potter v. Insurance Co., 2 Sumn. 197; Bowring v. Thebaud, 42 Fed. Rep. 796. Upon the meager evidence on this subject, I do not think there is sufficient proof that the moving of the libelant’s boat upon the shoal was in itself negligence; and consequently the case does not fall within the provision of the insurance policy above noted. Decree for the libelant for $255.63, with interest from November 1, 1892, and costs.  