July 10, 1931
THE HALO; GLOBE & RUTGERS FIRE INS. CO.
CITIES SERVICE CO. ET AL.
SWAN, Circuit Judge.
Upon the handing down of our opinion affirming the decree below, the appellant petitioned for a reargument on the ground that we had erroneously stated that "no evidence was introduced to show what "towage and trip expenses' the insured had incurred." A reargument was granted limited to three questions, of which only the first need be stated: "Does the evidence of expenditures for stores, repairs, hawser, etc., mentioned in appellants' petition for rehearing entitled the appellant to intervene?"
Exhibit A, Which is a printed copy of the record on appeal in the suit upon its policy of insurance brought by the insured against the present appellant, discloses bills for ice, kitchen utensils, food, a hawser, and labor for making a thimble and repairing a winch, altogether totaling some $800. These bills are addressed to Porter Dock Company, and most of them and "a Barge Crew Levick." The testimony is that Porter Dock Company at Key West, Fla., was instructed by McAllister Bros., who were managing agents for the steamship Halo, to see that the barge had proper equipment aboard and everything in shape to be towed north by the Halo. The Porter Dock Company paid the bills. There is no proof that they paid them on behalf of the barge owner. It is quite conceivable that the Halo supplied at its own expense the towing hawser as well as the food and utensils for the two men, members of the Halo's crew, who manned the barge during the trip. We do not know the terms of the towing contract. Hence we think the appellee is right in its contention that there is no proof that these bills represented expenses incurred by the insured.
But, even if it be assumed that these expenses were incurred by the insured, it would not follow that they were the subject of the appellant's policy. These bills and the testimony that the goods they represented had been delivered on the barge were offered in the suit upon the policy to prove that the barge was seaworthy when she lift Key West, not to show trip expenses intended to be covered by the policy. That the plaintiff had an insurable interest had been conceded at the outset of the trial. No issue was made as to what the interest was. But, as pointed out in our former opinion, the policy was evidently intended to cover an interest different from the hull and its equipment, for the printed words "body, tackle, apparel, stores," etc., were stricken out and "towage and trip expenses" were substituted. In British American Assur. Co. v. William Law & Co., 21 Can.Sup.Ct. 325, the policy was "on advances upon the body, tackle," etc. of the boat, and this was held to be insurance on the vessel itself. In the case at bar, however, the "expenses" insured are not stated to be upon the body or equipment of the barge; on the contrary, those words were deleted. Therefore we think the purchase of such gear and stores as would be covered by hull policies was not intended to be described by "towage and trip expenses." We may surmise that that phrase was meant to cover such items as the towage hire to be paid the Halo and the premiums on hull insurance for the trip; but we are satisfied it did not cover the purchase of equipment ordered by the Porter Dock Company even if such purchases be assumed to have been made on behalf of appellant. A dictum to the contrary in our former opinion must be retracted. Hence, even if the Crew Levick Company could have recovered from the appellee for the loss of the hawser, etc., the appellant shows no ground for intervention, for it "may not be subrogated to a recovery for a loss against which it did not insure." Standard Marine Inc. Co., Ltd., v. Scottish Metropolitan Assur. Co., Ltd., 283 U.S. 284, 51 S. Ct. 371, 373, 75 L. Ed. 1037.
Accordingly a majority of the court adheres to its former opinion.
© 1998 VersusLaw Inc.