Opinion
Argued December 13, 1911
Decided January 16, 1912
John F. Foley and Frank A. Spencer, Jr., for appellant. James K. Symmers and James Emerson Carpenter for respondent.
The plaintiff was the owner of a sea-going steam tug engaged in towing operations. As such owner he took out a policy with the defendant upon the "Towers Liability of the * * * Tug," and which policy amongst other things covered "only the legal liability of the said tug for loss or damage and charges * * * when such legal liability of said tug shall have been incurred or caused by injury to any other vessel or crafts * * * by stranding and or collision while they shall be in tow of the said tug, either alongside or at the end of a hawser."
While said tug was by hawser towing a dredge and scows it ran into a storm off Cape Cod and its master, as subsequently claimed on behalf of plaintiff, for the purpose of saving the men on the dredge, cut the hawser and took them off. He then without again having taken the tow in charge either by re-attaching the hawser or by fastening "alongside," abandoned it and allowed the craft to drift on shore where they were destroyed or injured. Under these circumstances, having been held liable for damages sustained by the owner of the abandoned craft in proceedings instituted in the United States court, plaintiff seeks to compel the defendant to reimburse him under its policy of insurance. In order to succeed he was bound to establish, first, that he incurred legal liability by reason of the stranding of the tow and, second, that such liability arose and stranding occurred while the craft were "in tow * * * either alongside or at the end of the hawser," in accordance with the explicit provision of the policy. He claims that he was prevented from doing this by various erroneous rulings by the trial court and the exceptions to these rulings in the main present the questions here to be considered.
In determining whether plaintiff produced or offered to produce any evidence tending to sustain his burdens, we are led first to review and consider the effect of the proceedings in the United States courts wherein he was held to be liable to the owner of the stranded craft.
Plaintiff alleged therein and the claimant denied that the conduct of the master was entirely proper, and that no liability attached by reason of the stranding of the dredge and scows. The District Court found against plaintiff and held him liable on the grounds, if we are permitted to look at its opinion, first, that it was improper to cut the hawser, and, second, on the ground that no sufficient effort was made subsequently to take the tow in charge after the men had been rescued from the dredge. The Circuit Court of Appeals affirmed his liability on the latter ground without passing upon the former one.
It seems to be well settled that on appeal from a decree of the District Court to the Circuit Court of Appeals in such a case as this, the latter court considers all the evidence de novo and renders a decree which entirely supplants that of the first court, and, therefore, we are concerned simply with the proceedings of the Circuit Court. ( Gilchrist v. Chicago Ins. Co., 104 Fed. Rep. 566; Munson S.S. Co. v. Miramar S.S. Co., 167 Fed. Rep. 960.)
It is insisted by the appellant that it was improper to receive in evidence the opinion of the court for the purpose of disclosing the grounds on which it held plaintiff liable for the stranding of the boats, but I view the matter otherwise.
The plaintiff in this action, for the purpose of establishing that he had incurred under his towing contract a liability covered by defendant's insurance policy, offered in evidence the decree of the Circuit Court holding him in damages. It is understood that as a matter of practice the opinion handed down by that court in connection with the decree really serves the purpose of findings, and if that is so, such opinion was of course competent evidence to prove the grounds on which the decree had proceeded. It must be that a party will be allowed in some way, when relevant, to show the grounds upon which a court has based its decision, and there was no other competent evidence by which to prove these facts in this case than by the opinion. Furthermore, as I shall show hereafter, the plaintiff himself needed the evidence.
We, therefore, have it established by that decree, as between the plaintiff and the owner of the dredge and other boats, that plaintiff's liability arose because, after the tow had been adrift for some time, the master did not use reasonable efforts to recapture it and put it at the end of a hawser or alongside.
It is unnecessary to decide whether this determination of the ground of plaintiff's liability under his towing contract is conclusive as between him and the present defendant. If it is conclusive, then it determines that the tow was not actually at the end of a hawser or alongside when plaintiff's liability arose.
If it is not conclusive and plaintiff had the right in this action to prove by other evidence that he incurred a liability of a character covered by the defendant's policy, then we become concerned with the evidence which he proposed and offered. His counsel's opening and offers of evidence disclose a purpose to prove that the cutting of the hawser was justifiable in an attempt to save the lives of the men on the dredge; that the tug never again was within fifteen feet of or in any manner attached to the craft being towed, and finally was compelled by storm conditions to abandon them and they stranded.
The apparent effect of the evidence thus outlined would have been to establish that plaintiff's master behaved properly and justifiably, and if this is so plaintiff did not incur any liability, insured against by defendant's policy. His counsel seems to argue that for the purpose of holding defendant he could show that the conduct of the master in cutting the hawser and subsequently abandoning the tow were justifiable without at the same time establishing that he incurred no liability to the owner of the tow. I am, however, unable to perceive any such distinction, and it is at variance with the history of the entire litigation springing out of the stranding. While there is no very definite or complete evidence concerning the terms of plaintiff's towing contract, it has been assumed that he did not become liable to the owner for the damage to the dredge and scows unless their stranding was due to some misconduct on the part of the master of the tug. The plaintiff was held liable in the United States court on the distinct issue that his master was not justified in doing as he did, and if plaintiff should now disregard the determination of that court and prove that his master was without fault he would necessarily destroy the first requisite of success in this litigation by showing that he incurred no liability.
It seems to me, therefore, that plaintiff himself is compelled to rely on the proceedings in the Circuit Court including the opinion as the only evidence received or offered which can even be claimed to show that he incurred a liability of a character and under conditions covered by his policy.
Thus we are brought to the final question in the case which is, if the master of a tug justifiably cuts loose his tow and then after some considerable time without again being attached to it either by hawser or alongside unjustifiably abandons it and the craft subsequently drift on shore, can it be said that the tugowner has incurred liability for the loss of the craft by "stranding * * * while * * * in tow of said tug, either alongside or at the end of a hawser?" It seems to me that this question must be answered in the negative.
It is not necessary to hold, as argued by the respondent's counsel, that in order to comply with the terms of the policy vessels must be actually at the end of a hawser or attached alongside the tug at the moment the stranding occurs in order to come within the fair meaning of the policy. While not intending to pass on that question I am not prepared to say that if the master had unwarrantably cut the hawser and then straightway the boats had stranded as the immediate and proximate result, the liability might not be one within the contemplation of the policy. But that question is not the one presented here. We are bound to assume in this case that the original severing of the hawser was not negligent or improper. The liability of the plaintiff arose subsequently when the boats for some time had been adrift because his master did not make a reasonable effort to again take them in charge. They had not for some time been actually and really at the end of a hawser or alongside the tug. For an appreciable period they had been entirely detached from it and adrift. They had been effectually and for a considerable time abandoned before they went ashore. The plaintiff's liability has been predicated on an act intermediate the cutting of the hawser and the stranding, and I think it would be a forced and unwarranted construction of the policy to hold that figuratively and constructively the craft were so at the end of a hawser or alongside when the stranding occurred as to come within the terms of the policy.
The judgment should be affirmed, with costs.
GRAY, HAIGHT, VANN and COLLIN, JJ., concur; CULLEN, Ch. J., and WILLARD BARTLETT, J., concur in result.
Judgment affirmed.