Opinion
Argued April 2, 1900
Decided May 15, 1900
James K. Symmers and James Emerson Carpenter for appellant.
Mark Ash for respondent.
Counsel have accumulated between them apparently, not only all the decisions, but all the text-book learning as well, in this country and England on the subject of collision as understood in marine parlance, without discovering that such a case as this has ever been brought to the attention of a court. Obviously the reason is either that no other vessel was ever injured under similar circumstances, or it has not been supposed hitherto that the insurance of vessels against "any accident caused by collision" included injuries sustained by a vessel as the outcome of its crashing into another object by the design of the master. Unquestionably the injured may recover where the collision is due to the design of the master of another vessel or floating object, but when the master of the vessel insured designedly takes the chance of running into a perfectly apparent obstruction, although with the hope and expectation that the vessel will successfully meet the encounter, the contact is not a collision within the meaning of the term as employed in this contract. Collision, in its strict and legal acceptation, originally meant the impinging upon one another of vessels while being navigated, but in course of time and by common usage the application of the term has been so far extended, in this country at least, as to include the impact of a vessel with other floating objects Lord COLERIDGE held in Richardson v. Burrows (Q.B., 16th December, 1880), not reported but referred to and quoted in Lowndes on Marine Insurance (Second ed., page 198, note S), that the striking of a ship on a field of ice was not a collision within the meaning of the term in a policy of insurance; but it may well be that his definition of the word was too narrow, measured by the tendency of our courts to broaden its application. However, whether the term be treated by the courts as so fixed in character as to be restricted in its meaning to the coming together of two vessels, as is the rule in France, or so flexible as to include a variety of floating objects other than vessels, the idea of accident so far as the insured in concerned underlies it. To illustrate: If a ferryboat crossing the Hudson river in the night time should unexpectedly strike a large floating cake of ice it may well be that the state of the law in this country would justify the holding that the striking constituted a collision within the meaning of the term as used in this policy. But it would be otherwise if, after the river had been closed for months by ice, the owner of the boat should conclude that the ice had been so far weakened by the rays of the sun that the boat could break its way through, and the result of the attempt should be an injury to the boat. No adjudication can be found holding that contact between the ice and boat under such circumstances would constitute a collision within the meaning of the term as it is employed in this contract. The injury in such case would be due not to an unintended contact with a floating, foreign substance, but to a deliberate attempt to break through a known barrier, the resisting power of which had been miscalculated.
Emerigon, in his work on Insurance (Meredith), states the rule as follows:
"1. When a vessel on which I have effected insurance has been damaged by collision with another vessel, or by an anchor or by a stake or net or such like, the insurers are bound to indemnify me for the damage suffered, if the action has happened through mere chance ( cas fortuit).
"2. So, if the accident has happened through the fault of the master of another vessel; in which case I must assign to the insurers my right of action against the author of the damage." (Chapt. 12, sect. 14, page 336.)
This rule we conceive to be correct, and applying it to the facts of this case we find that the accident did not happen by mere chance, such as would have been the case had the vessel come in contact unexpectedly with a floating cake of ice, but was the outcome of an attempt to force the boat through ice field under such circumstances as led the Federal court hold that the owner of the tug having this boat in charge was liable for the damages sustained by the owner of the boat sunk. (66 Fed. Rep. 355.)
This record discloses that but one witness testified to the circumstances attending the injury and sinking of the boat In describing the ice floe through which the boat was shoved by the tug, he said: "The river was covered; I cannot say how big a floe, but the ice was scattered all over the river The cakes varied in size. I don't know exactly the size the cake that struck the McMahon;. I came down through them; my tug went through them; the tug was in motion that time. * * * The ice was all around me; all sides me; ahead of me and behind me when this one hurt her." It seems he did not use the tugboat to break through the ice towing the McMahon behind, but instead lashed the McMahon on the starboard side of the tugboat so that she projected some forty-five or fifty feet in front of the tug, and with the boat in this position the effort was made to force it through the field of ice cakes. The learned trial judge asked the witness: "Q. Do you ever stop for ice in the harbor? A. Yes, Q. Then you do not always tow when there is ice; sometimes you stop? A. Yes, sir. Q. Why do you stop? A. If find the ice too heavy or dangerous then we stop. Q. was the ice so dangerous on this occasion that you should stop? A. Well, I couldn't see." This was the last bit of testimony given, and the trial court promptly and properly, as we think, dismissed the complaint; properly, because the testimony showed that the master of the tugboat, heedless of the risk incident to an attempt to take a tow through the ice when it was "too heavy or dangerous," took the chances of forcing the McMahon through in the night time, when he could not see, with full knowledge that the ice was all around the boat ahead of it and behind it, and as the injury came while the boat was being thus rammed through the ice, it was not caused by a collision within the meaning of the contract in suit.
The order of the Appellate Division should be reversed and the judgment of the Trial Term affirmed, with costs.
GRAY, O'BRIEN, HAIGHT, LANDON and WERNER, JJ., concur; CULLEN, J., not sitting.
Order reversed, etc.