DOUGLAS SYMMERS, Suing on His Own Behalf and in Behalf of All Other Persons Similarly Situated Who May Come in and Contribute to the Expenses of This Action, Respondent,
HOWARD CARROLL and HARRIET M. SPRAKER, as Executors, etc., of JOHN H. STARIN, Deceased, Appellants.
APPEAL by the defendants, Howard Carroll and another, as executors, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of February, 1909, upon the decision of the court, rendered after a trial at the New York Special Term, overruling a demurrer to the amended complaint.
Avery F. Cushman, for the appellants.
James Emerson Carpenter, for the respondent.
Appeal by defendants from interlocutory judgment overruling demurrer to complaint.
In the year 1904 John H. Starin, defendants' decedent, was the sole owner of a steamboat carrying freight and plying between the city of New York and the city of New Haven. Plaintiff's assignors, as well as a number of other persons, were shippers of goods by said vessel and had paid or agreed to pay freight therefor. On or about December 17, 1904, while on a voyage from New York to New Haven the said vessel was burned to the water's edge and almost wholly destroyed, and her cargo, including the goods of plaintiff's assignors, was entirely burned and destroyed. Starin in due course instituted proceedings in the District Court of the United States for the Eastern District of New York, under the appropriate Federal statutes to relieve himself from personal liability, and on May 17, 1905, obtained a final decree from said court, adjudging and decreeing that the said fire and the destruction of the merchandise as cargo was not due to any design, default or neglect of him, the said Starin, and that he was not liable for loss, destruction, damage or injury growing out of the loss by fire of said vessel and her cargo. The question at issue in this action is as to the right of plaintiff's assignors and other shippers to participate in the proceeds of a certain policy of insurance held by said Starin at the time of the fire, and the full amount of which he subsequently collected from the insurer. That policy contained the following statements respecting the risks assumed by the insurer, and the persons and interests intended to be covered by said insurance: 'The Home Insurance Company, New York, by this policy of insurance * * * does insure John H. Starin, as freighter, forwarder, bailee, common-carrier or for account of whom it may concern; loss, if any, payable to him or order to the amount of $20,000 on goods, wares and merchandise, including live stock and baggage while on board the following vessels: 'John H. Starin' against all loss, damage, detriment or hurt by fire, and any
and all the other risks, perils and dangers incident to and consequent upon the use and navigation of the waters of the port, bays and harbors of New York, East and North or Hudson Rivers, inland waters of New York, New Jersey, Long Island Sound and all waters adjacent or tributary to any of the above waters. Privileged to substitute other vessels of same class upon the approval in writing of this insurance company * * *.
'It is the intent of these insurers to fully indemnify the assured for all general average, charges and salvage expenses, and loss, damage, detriment or hurt to said property, but in no case shall this company be liable under this policy for a greater amount than the sums insured in this policy * * * loss limited to $20,000 by any one vessel at any one time * * *. This insurance covers cargoes on and * * * under deck.'
It is not alleged that Starin effected this insurance at the request of plaintiff's assignors, or that they were even aware that he held such insurance, nor is it alleged that they have paid or offered to pay any portion of the premium therefor. It is alleged that it was the intention of Starin to procure said insurance not only as common carrier, but as bailee of and for the benefit of the owners of goods carried as cargo. This appears to be a conclusion of the pleader drawn from the terms of the policy. It is alleged that Starin paid out a portion of the insurance money collected by him to other owners of merchandise destroyed by said fire and situated the same as plaintiff's assignors, but has refused to pay to the latter their pro rata share of the money so collected. From this allegation we may assume, what was indeed assumed on the argument, that the insurance money collected by Starin exceeded his individual loss as common carrier of the goods destroyed.
It is the settled law that the owner or charterer of a steamship has an insurable interest in goods in his possession to the full extent of their value against a loss for which it is possible that he may become responsible, and the question whether he has the right to recover upon the policy is not to be determined after the loss by inquiring whether he is in fact then liable to the owners on account of such loss. (Munich Assurance Co.
v. Dodwell & Co., 128 F. 410; certiorari to U.S. Supreme Court refused, 195 U.S. 629; Hagan v. Scottish Ins. Co., 186 id. 423; Waring v. ...