Opinion
No. 6007.
April 26, 1929.
Bates Peterson, of Tacoma, Wash., for plaintiff.
Cosgrove Terhune, of Seattle, Wash., for defendant.
In Equity. Suit by John Skansi against the Globe Rutgers Fire Insurance Company. Decree for plaintiff.
Plaintiff, the owner of the gas boat Companion, 63 or 64 feet long, 15½-foot beam, brought this suit to reform an insurance policy and to recover thereon for the total destruction of the vessel by fire.
After reformation, a jury being waived, the remaining issues were tried by the court.
The defendant admits the destruction of the vessel by fire, but alleges that at the commencement of the voyage and up to and at the time of her destruction the vessel was unseaworthy, in that it had a heater and a 5-gallon coal oil can theretofore used as a container for coal oil used by being poured into the heater as an aid in making fires therein; that at the beginning of the voyage, with the privity and knowledge of the owner and the charterer, the coal oil can was filled with gasoline; that it continued so filled to the time of the destruction of the vessel; that on the 30th day of December, 1925, the master, pursuant to the practice followed on the vessel in order to obtain a fire, poured into the heater part of the contents of the can; that this gasoline exploded, causing the fire which destroyed the vessel. Plaintiff denies the alleged unseaworthiness.
While there is a difference in the deductions made by the plaintiff and defendant from the evidence, there is no substantial dispute in the testimony, which is to the following effect:
It was the practice upon this vessel to carry two 5-gallon cans upon a shelf in the engine room near the engine, which shelf was against the athwartship bulkhead between the engine room and the fish hold. One can was painted red for gasoline, and one gray or lead color for coal oil; the gasoline being used in priming the engine, which was frequently required, sometimes as often as ten or twelve times a day. This was done by pouring the gasoline from the 5-gallon can into a small squirt can, from which it was squirted into the cylinders through pet cocks. The coal oil was used in washing the bearings and other parts of the engine, filling lanterns for the vessel's lights and starting or renewing fires in the forecastle heater. The coal oil from this can was used daily in filling the lanterns and otherwise. How frequently it was used in the stove is not shown. There was also carried upon this shelf a plain 5-gallon can containing engine oil. The heater in the forecastle was an ordinary "shipmate" coal and wood stove combined.
The vessel was refueled "every week and sometimes every twelve or fourteen days." The cans were filled when the vessel refueled. At such times these cans were taken from the vessel, placed on the float, and filled by the gasoline station attendant, after which they were returned to the boat. The testimony is not exact as to the length of time before the burning of the boat that the last refueling took place. One of the witnesses testifying upon this point states that it was about a week or a little more than a week before; the other, eight or ten days. The boat was operated steadily between the last refueling and its destruction. In a protest by the master, made less than a month after the burning of the vessel, he stated:
"* * * All went well until about 6 P.M., when we were about a mile off the north side of Richmond Point, West Pass; as the fire in the heater was about out, I put in some coal and when it would not burn I picked up what I thought was the five-gallon can in which we kept coal oil, and poured it in the stove; instead of coal oil, the contents were evidently gasoline as it immediately caused an explosion which blew out the stove, fired my clothes and knocked me up against the steps leading from the forecastle; I managed to stumble to the deck and my engineer, Art Power, grabbed a blanket and smothered the flames on my clothes; he then rushed to the engine room and stopped the engine, and tried to extinguish the fire with the extinguishers, but it had gained too much headway and we were compelled to launch the small boat and pull off; by this time the engine room and forecastle were all ablaze. * * *"
Upon the trial, the master testified, in effect: That on the shelf in the engine room was carried coal oil in a gray or lead color can, and gasoline in a red can; that he was familiar with both cans; that he picked up the gray can in the engine room, carried it forward into the forecastle and poured from the can into a coffee cup, and the latter (a quarter of a cup full) was poured into the open stove. He stated the explosion immediately followed.
Plaintiff cites Joyce on Insurance (2d Ed. 1918) vol. 4, § 2167; Patapsco Insurance Co. v. Coulter, 3 Pet. 223, 7 L. Ed. 660; Orient Mutual Ins. Co. v. Adams, 123 U.S. 67, 8 S. Ct. 68, 31 L. Ed. 63; Copeland v. New England Ins. Co., 2 Metc. (43 Mass.) 432; 1 Phillips on Insurance, 402; Joyce on Insurance, vol. 4, p. 3702.
Defendant cites Sandanger v. Carlisle Packing Co., 112 Wn. 480, 192 P. 1005, Id., 259 U.S. 255, 42 S. Ct. 475, 66 L. Ed. 927; Patapsco Insurance Co. v. Coulter, 3 Pet. 222, 7 L. Ed. 659; Orient Mutual Ins. Co. v. Adams, 123 U.S. 67, 8 S. Ct. 68, 31 L. Ed. 63; Joyce on Insurance, vol. 4, § 2167; section 39, subsec. 5, English Marine Insurance Act 1906; Arnould on Marine Insurance; New York P.R.S.S. Co. v. Ætna Insurance Co. (C.C.A.) 204 F. 255; Thompson v. Hopper (1856) 6 E. B. 172, 937; E.B. E. 1038; 1858, E.B. E. 1038 (Ex. Ch.); Dudgeon v. Pembroke (1877) 2 App. Cas. 284; Anderson v. Thames Mersey (C.A.) 1898, 2 Q.B. 114; Thomas v. Tyre, [1917] 1 K.B. 938; Thora Shipping Co. v. London, etc., 30 L.T.R. 595; The Republic (C.C.A.) 61 F. 109; Union Insurance Co. v. Smith, 124 U.S. 405, 8 S. Ct. 534, 31 L. Ed. 497; The Linseed King (D.C.) 24 F.2d 967, 1928 A.M.C. 589; Parsons v. Empire Transportation Co. (C.C.A.) 111 F. 202; The Miami, 1927 A.M.C. 209.
Defendant contends that the vessel was unseaworthy at the commencement of and during her last voyage; the contention being, first, that carrying, in the manner described, five gallons of gasoline in any can in the engine room, rendered her unseaworthy, and further that she was unseaworthy because on this particular voyage the gray or lead color can contained gasoline instead of coal oil.
The court finds that carrying five gallons of gasoline in a red can in the engine room on this vessel, with the other cans, in the manner disclosed, did not render the vessel unseaworthy. The court further finds that, while it is possible that the master of the vessel on the occasion in question may have taken the gasoline can by mistake instead of the coal oil can, or that the coal oil can may have then had gasoline in it, yet it appears more probable that the coal oil can was used by him, and that it then contained coal oil, a part of which he poured from the can into the stove in the manner stated by him in his protest and not from a cup as stated by him in his testimony. It appears to the court very improbable that the coal oil can could have been used as frequently as the evidence indicates during a week or more while containing gasoline instead of coal oil without that fact having been learned prior to the explosion and destruction of the vessel. The court further finds the vessel to have been seaworthy at the commencement of and during the voyage in question, and that plaintiff is entitled to recover as prayed.
The judgment or decree will be settled upon notice.