The opinion of the court was delivered by: PALMIERI
This action involves the interpretation and application of certain provisions of a protection and indemnity insurance policy executed by the respondent in favor of the libelant, insuring against certain risks, liabilities and expenses with respect to the libelant's vessel, the Fort Mercer. The facts are not in dispute.
The circumstances which gave rise to this suit were substantially as follows: On October 2, 1949, while the insurance policy was in force, the S. S. Fort Mercer was proceeding in the Houston Ship Channel, outward bound from the port of Houston, Texas. The hydraulic dredge, George W. Catt, was then engaged in widening and deepening the navigable channel. Connected to it and for the purpose of disposal of spoil ashore was a pipeline. The dredge was assisted by the tugs Irma and Kathy and six brages. The tugs were acting as dredge tender to shift the pipelines, pontoons, barges and the dredge. Two of the barges were equipped with derricks which were used to put the pontoons, pipelines and other equipment in place. The others were water, oil or storage barges. The discharge pipeline supported by pontoons ran out in a northerly direction, directly astern from the dredge, for a distance of 1200 or 1300 feet. At this point, the pipeline turned down from the pontoon to the bottom of the channel and ran in an easterly direction across the Houston Ship Channel to a disposal area on the opposite shore, where silt pumped by the dredge from the channel bottom was deposited.
The pontoons supporting the pipeline consisted of metal cylinders 38 feet long and 52 inches in diameter. They were laid at right angles to the direction of the discharge pipe and were held together by two lines of strongbacks separated by cross beams and secured to the top of the pontoons. The strongbacks and cross beams were timbers 10 inches by 10 inches in cross section; the strongbacks were 32 feet in length. The line of pontoons and strongbacks was held in place by anchors placed at intervals along the line. The discharge pipeline was carried on top of the pontoons between the two lines of strongbacks, and it was made up of sections of pipe 40 feet long and 27 inches in diameter. The ends of the pipe sections were flanged and joined together by nuts and bolts. To permit flexibility ball joints were inserted at intervals. The pipeline, pontoons, strongbacks, etc. had been towed on the water to the location of the dredging by the tugs operating with the dredge and had been placed in position and assembled by the tugs and the derrick barges. One end of the pipeline was connected to the discharge pipe of the dredge.
The dredge was in position on the west side of the Houston Ship Channel, in the vicinity of Morgan Point and facing in a southerly direction. The shrimpboat Icie, a vessel 30 feet in length, was moored to the east side of Cook's Dock, a structure on the west shore of the Houston Ship Channel directly west of the pontoon line running from the stern of the dredge. The outboard side of the Icie was about 75 feet inshore of the pontoon line.
The Fort Mercer, a vessel about 525 feet in length, and assisted by the tug Ajax, was in the vicinity of Morgan Point when, due to the negligence of those in charge of her, she was allowed to leave the regular deep water channel, sheer to starboard and enter the area being dredged by the George W. Catt. As a result, the bow of the Fort Mercer was grounded ahead of and to the east of the dredge. In pulling her astern and in turning her bow to port in order to get her back in the regular deep water channel, the stern of the Fort Mercer was negligently permitted to come into collision with the floating pontoon line at a distance of about 500 feet from the stern of the dredge, thus damaging the pontoons and pipeline and forcing one of the pontoons into the Icie. The collision caused the Icie to sink. There was no contact between the Fort Mercer and the Icie nor between the Fort Mercer and any object other than the pipeline or pontoons or their connections.
The libelant, by reason of its ownership of the Fort Mercer, thereafter was compelled to pay certain sums for damages and expenses both for the claims for damage to the pontoon line and equipment, and the claims for damage to the Icie. The reasonableness of these sums is not disputed. The respondent denies responsibility under the insurance policy.
The basic issue is whether the collision of the Fort Mercer with the pontoons, and the forcing of the pontoons into the shrimpboat Icie, constituted 'collision of the insured vessel with another vessel or craft' within the meaning of the policy issued by respondent. If it was not, the libelant is entitled to recover in this action for damage to the pipeline and the Icie. For under the policy respondent agreed to cover:
'(4) Liability for loss of or damage to any other vessel or craft, or to property on board such other vessel or craft, caused otherwise than by collision of the insured vessel with another vessel or craft,' and
'(5) Liability for damage to * * * any fixed or movable object or property whatsoever, except another vessel or craft or property on another vessel or craft * * *.'
The libelant's position is that the collision of the Fort Mercer with the pipeline and the resultant collision of a pontoon with the Icie, is not a 'collision of the insured vessel with another vessel or craft' and that the damage to the pipeline is not damage to 'another vessel or craft or property on another vessel or craft.' The respondent's contention is that the pipeline was a part of the dredge and, together with the dredge, constituted a vessel or craft, and consequently, that the damage to the Icie and the pipeline was damage which was excluded by the exceptions in the clauses above quoted.
In my opinion the pipeline was not a vessel or craft or property on a vessel or craft.
Respondent does not contend that the pipeline in and of itself was a vessel. See Cope v. Vallette Dry-Dock Co., 1887, 119 U.S. 625, 7 S. Ct. 336, 30 L. Ed. 501; Evansville & Bowling Green Packet Co. v. Chero Cola Bottling Co., 1926, 271 U.S. 19, 46 S. Ct. 379, 70 L. Ed. 805. But respondent's argument is that while the pipeline may not have been a vessel, it must be considered a part of the dredge's equipment and a part of the dredge during the time it was attached thereto and being used by the dredge. There is, of course, no question that the dredge itself, engaged as it was in improving a navigable channel, was a vessel. Ellis v. United States, 1907, 206 U.S. 246, 259, 27 S. Ct. 600, 603, 51 L. Ed. 1047; Bowers Hydraulic Dredging Co. v. Federal Contracting Co., D.C.S.D.N.Y.1906, 148 F. 290, affirmed, 2 Cir., 153 F. 870, certiorari denied, 1907, 207 U.S. 587, 28 S. Ct. 255, 52 L. Ed. 352.
To sustain its contention that the collision with the pontoons and pipeline was a collision with a vessel, the respondent relies principally upon In re Margetts and The Ocean Accident and Guarantee Corp., (1901) 2 KB. 792. In that case the question arose under the terms of a policy of marine insurance. The policy provided coverage for collision between any tug of the assured and any vessel. The insured tug came into collision with an anchor attached by about 20 or 30 fathoms of chain to a schooner. As a result of striking the anchor, the tug sank. The insurance company contended that the anchor was not part of the schooner and that the striking of it by the tug was not a collision between the tug and the vessel. The Court held, to the contrary, that since the anchor was an appurtenance of the anchored vessel, the collision of the insured tug with the anchor was a collision 'with a vessel' within the terms of the policy.
The anchor was there regarded by the Court as 'an extended portion' of the vessel to which it was attached. ...