Klein v. Globe & Rutgers Fire Ins. Co., 2 F.2d 137 (3d Cir. 1924)

*138 *139 *140 *141 *142 *143 Lowrie C. Barton, of Pittsburgh, Pa., for appellant.

Reed, Smith, Shaw & McClay, of Pittsburgh, Pa., and Bigham, Englar & Jones, of New York City (George S. Brengle, of New York City, and John J. Heard, of Pittsburgh, Pa., of counsel), for appellee.

Before WOOLLEY and DAVIS, Circuit Judges, and THOMPSON, District Judge.

PER CURIAM.

This is an appeal from a decree of the District Court, entered in a suit in admiralty on a marine insurance policy. The steamboat Tornado was to take a voyage from Paducah, Ky., to Tampico, Mexico, and was insured by the respondent for the voyage, the amount of the policy being $85,000. The policy provided that the Tornado should be towed or go under her own steam to New Orleans, and from there she was to be taken on deck of a seagoing barge to Tampico. She was towed to New Orleans. The policy was then twice modified by riders, which provided that the vessel should be towed on her own bottom from New Orleans to Tampico, instead of being taken on the deck of a sea-going barge, and that the vessel and all arrangements be approved by Capt. C. A. Wilson.

Arrangements were made for the tug Richmond to tow the Tornado from New Orleans to Tampico. About 10 miles down the Mississippi from New Orleans they met strong winds and swells. They continued to Pilot Town, at the mouth of the river, where they took on a Gulf pilot, who told the captain of the Richmond that the water was rough and the sea heavy in the Gulf of Mexico, and ordered the tow to anchor. The Tornado seemed to be in good condition at that time, 10 o'clock in the forenoon. At about 5 o'clock in the afternoon the Tornado was listing, and an examination disclosed that she had about 14 inches of water in her hold. Her pumps were started, and everything was done to save her that could properly and reasonably be done; but she sank at about 8:40 o'clock that evening.

The owner and the insurance company could not agree on a settlement, and the owner, claiming the boat was a total loss, brought this suit for the full amount, $85,000, of the insurance. The case was tried to the court without a jury, and it entered a decree for the libelant for $50,922.60, with interest. The libelant has brought the case here by appeal, and contends that the loss of the boat was total, and he should have been awarded the full amount of the insurance. The respondent, on the other hand, while not appealing, contends, since this is a trial de novo, that the sinking of the boat was not due to a peril of the sea covered by the insurance policy, and that the decree should be reversed, but, if the court should think otherwise, the damages awarded were excessive, and should be reduced.

*144 The respondent has not satisfied us that the learned District Judge did not reach the right conclusion that the boat sank by reason of a peril of the sea, against which she was insured, nor has it satisfied us that the damages awarded were excessive. On the other hand, the libelant has not borne the burden of showing that the loss was total, and that the damages awarded were inadequate. We are in accord with the conclusions of the learned District Judge, and adopt his opinion as expressing our views, and so the decree is affirmed.