Burnham v. China Mutual Insurance , 189 Mass. 100 ( 1905 )

Lathrop, J.

Some of the policies in these cases cover “ the risk of collision sustained ” and others are against “ loss sustained by collision with another vessel.” We are of opinion that the two forms mean the same thing, namely, collision with another vessel. We agree with the plaintiff that if a vessel is temporarily aground, or at anchor, or at her dock, and is run into by another vessel, this is a collision with another vessel within the meaning of the policies. London Assurance v. Companhia De Moagens Do Barreiro, 167 U. S. 149, and cases cited. So, it may be true, as was decided in Chandler v. Blogg, [1898] 1 Q. B. 32, that where a vessel strikes, another vessel which is at the time under water, and resting on the bottom, this is a collision within the meaning of the policy, if the vessel is raised within a few hours. Mr. Justice Bigham in this case adopted the view that “ collision ” when used alone, without other words, meant two navigable things coming into contact; and that the sunken vessel, though she could not be navigated at the time, was still navigable, as she was raised within a few hours.

In the cases at bar the plaintiff’s vessel struck a wreck, sunk several hours before, and which was never raised. While it was practicable to raise her, the cost wonld have exceeded her value when raised. Under such circumstances we are of opinion that the plaintiff’s vessel did not come into collision with another vessel within the meaning of this word in the policies.

The case of Richardson v. Burrows, though not reported, is cited in Lowndes on Mar. Ins. § 196, in Spencer on Col. 14, and in Cline v. Western Assur. Co. 101 Va. 496. The counsel for the plaintiff state in their brief that they have had an opportunity to examine a stenographic report of the case, and that it was an action to recover for a partial loss of wheat shipped on a small schooner, which sailed from Lynn in England for Caen in France. During the night the vessel struck something which caused damage to the cargo. What the object was did not appear, but it was probably some old sunken wreck, or possibly floating wreck. After the evidence was in, Lord Coleridge inquired whether there were any cases of collision. None were referred to. Lord Coleridge ruled that he should hold that the word “ collision ” meant collision with another ship, and did not mean either a rock or a sand bank or floating wreck. The jury were then discharged by consent, and judgment given for the defendant. The case was decided December 16,1880. While this is a nisi prius decision, it is of some weight. See also Hough v. Head, 54 L. J. (Q. B.) 294; Reischer v. Borwick, [1894] 2 Q. B. 548 ; Cline v. Western Assur. Co. 101 Va. 496 ; The Bristol, 10 Blatchf. C. C. 537.

We do not regard the case of Chapman v. Fisher, 20 Times Law Rep. 319, as applicable to this case. It involved no discussion as to what is collision nor any adjudication thereon. The case of Barr v. Gibson, 3 M. & W. 390, relates to a bill of sale of a vessel on the shore. It has no bearing on this case.

Judgment in each case for the defendant.