Crew-Levick Co. v. British & Foreign Marine Ins.

GRAY, Circuit Judge.

This was an action on a policy of insurance, to recover the value of oil destroyed by fire on December 10, 1895, while in tank cars on a siding alongside of the plaintiff’s warehouse. The action was brought in the court of common pleas No. 4 of Philadelphia county, and on the application of the defendant was transferred to the circuit court of the United States for the Eastern district of Pennsylvania. The tank cars containing this oil had been transported (five of them by the Pennsylvania Railroad, and one of them by the Baltimore & Ohio Railroad) from the Pennsylvania oil regions, under six separate bills of lading or contracts of carriage, in each one- of which, the oil was stated to be consigned to “Crew-Levick Company, Swanson and Jackson streets, Philadelphia.” In detail, the facts, which are wholly undisputed, are these: At the corner of Swanson and Jackson streets, Philadelphia, the Crew-Levick Company at this tifne had an oil warehouse, surrounded by quite a yard, inclosed by a fence, containing, besides the warehouse, a cooper shop and some sheds and stables, all belonging to the Crew-Levick Company. On one side of this yard or inclosed area was Swanson street, along which ran the track of the Pennsylvania Railroad Company, and on the opposite side of the yard ran Meadow street, along which ran the track of the Baltimore & Ohio Railroad, so that the inclosed yard of the plaintiff company was situated directly between the tracks of these two railroad companies. - The private siding of the Crew-Levick Company was situated within this yard, alongside of the oil warehouse. It connected, through gates in the fence on either side, with both railroads, — on the Swanson street side with the Pennsylvania Railroad, and on the Meadow street side with the Baltimore & Ohio Railroad. In the regular course oí business the Pennsylvania Railroad Company, from its Washington Avenue Station, which is not far from the corner of Swanson and Jackson streets, makes its delivery of car loads of merchandise consigned to its regular customers, who have their own private sidings, by placing the cars containing the merchandise on the customer’s private siding, and leaving them there for their customer to unload at his convenience; the railroad company making no charge for the use of the car1, unless detained over 48 hours. In the regular course of business, qar loads of merchandise arriving at the Washington Avenue Station of the Pennsylvania Railroad, and consigned to any of the customers of the railroad having their private siding, are kept by the railroad company while notice of their arrival is sent by a messenger to. the consignee. The consignee, at his convenience, notifies the railroad company when he desires to have what is called “a shift”; that is, when he desires the railroad company to send an engine to remove from the customer’s private siding any unloaded cars, and to substitute in their place loaded cars, of the arrival of which notice has been given. Some time on December 9, 1895, the day before the fire, two of the six car loads of oil which were destroyed by the fire had been placed upon the private siding of the Orew-Levick flompany at Swanson and Jackson streets, alongside its warehouse; one having been placed there by the Pennsylvania Railroad, and one having been placed there by the Baltimore & Ohio Railroad. The next: day, December 10th, at about noon, the two cars just mentioned being still unloaded, the Orew-Levick Company sent word to the Washington Avenue Station of the Pennsylvania Railroad that it wished a shift that afternoon, and gave directions to have four more loaded cars placed upon its siding. As a consequence of these orders, between 4 and 6:15 o’clock of that afternoon the remaining four of the six loaded oil cars were placed on plaintiff’s private siding and left there. About 9 o’clock in the evening a fire occurred, which destroyed the warehouse, and with it six of the loaded tank cars, two of which had been left there the day before, and four that afternoon. Of the four others which were on the siding, two were hauled off at the Baltimore & Ohio end, and two at the Pennsylvania Railroad end (including the one which had projected through the gate), and were not burned.

The policy on which the suit is brought is irregular, in that it is a printed marine policy form, with many of the blanks unfilled, and to whch is attached a so-called "paster,” which contains the substance of the real contract: of insurance. A policy framed throughout: to express the meaning and intention of the parties would have avoided the difficulties out of which this litigation sprang. The transaction was an unbusinesslike and careless one, and has brought to the parties unnecessary trouble and expense. To arrive at the agreement: between the parties to this contract, we are referred lo a long printed form, containing a number of blanks, and evidently intended to be used in the writing of marine insurance alone; the defendant being a marine insurance company. This printed policy is, in its ordinary form, and as we have said, was meant to cover exclusively a marine risk, as a perusal will make obvious. It begins as follows:

“(Cargo) (No. 638,003.) “A.

“The British and Foreign Marine Insurance Company, Limited, of Liverpool. New York Branch.

“Grew-Levick Company, .on account of whom it may concern.

“In case of loss, to be paid in funds current in the United States to them.

“Do make insurance and cause to be insured, lost or not lost, at and from October 10, 1895, at noon, to October 10, 1896, at noon, as per form attached herein,

“Upon all kinds of lawful goods and merchandise, laden or to be laden on board the good-, whereof-is master, for this present voyage, or whoever else shall go for master in the said vessel, or by whatever other name or names the said vessel, or the master thereof, is or shall be named or called.

“Beginning the adventure upon the said goods and merchandise from and immediately following the loading thereon on board of the said vessel at--as aforesaid, and so shall continue and endure until the said goods and merchandise shall be safely landed at-as aforesaid. And it shall and may be lawful for the said vessel, in her voyage, to proceed and sail to, touch and stay at, any port or places, if thereunto obliged by stress of weather or other unavoidable accident, without prejudice to this insurance. The said goods and merchandise hereby insured are valued at-, as per form attached herein -, including premium; such valuation being represented by the assured as not exceeding invoice cost and-per Cent, thereof.”-

Following this are many printed stipulations defining or limiting the obligation of the company, most of which are expressly and in terms applicable to a seaborne cargo. Only one of these, in addition to what has already been quoted, is claimed to have any bearing on this litigation. It occurs after many printed provisions and conditions of the policy, and is as follows:

“This insurance warranted to be in all cases null and void to the extent of any insurance with any fire insurance companies directly or indirectly covering upon the same property, whether prior, or subsequent hereto in date.”

The following was stamped in red ink on the face of the policy:

“The special terms and conditions governing this insurance are set. forth in the contract form which is attached within and signed by L. A. Wight, attorney, and the contents of same shall supersede anything to the contrary in the printed body of this policy.”

Attached to and forming a part of policy Ho. 638,003, signed by L. A. Wight, attorney, the “contract form” hereto referred to is pasted on the back of the policy, and is as follows:

“New York, October 24, 1895.

“In consideration of $12.50 additional premium, this policy is hereby made to cover under the following form, and not as heretofore, to wit:

“Crew-Leviek Company, for account of whom it may concern. Loss, if any, payable to them.

“$2,500. On oil contained in tank cars in transit, principally from oil regions in Pennsylvania and New York to various places, and to Seaboard Oil Works, South Chester, Pa., and from Seaboard Oil Works to various places.

“It is the true intent and meaning of this policy to fully indemnify the assured for each and every loss by or in consequence of fire, derailment, or collision, not exceeding, however, the sum hereby insured, anything contained in the printed conditions of this policy to the contrary notwithstanding. '

“$2,500,1 year from October 10, 1895, at 10 per cent, per annum. Premium, $2.50.

“Attached to and forming part of policy No. 638,003, of British and Foreign Marine Insurance Company, Limited.”

The case was submitted to the jury by the learned judge of the court below, with instructions to return a verdict for the plaintiff for the amount claimed, reserving the question as to the points submitted by counsel for the defendant. 98 Fed. 71. The jury rendered a verdict accordingly. The points reserved were as follows:

“(1) Under the evidence in this case the oil which was destroyed by lire, and for which the plaintiff claims to recover, was not ‘in transit,’ and therefore was not within the terms of the defendant’s policy in suit. Consequently your verdict must he for the defendant. (2) The policy in suit provides, ‘This insurance warranted to be in all eases null and void to the extent of any insurance with any fire insurance companies directly or indirectly covering upon the same property, whether prior or subsequent hereto in date.’ Under the uncon-, tradicted evidence in this case, the plaintiff was carrying, at the time of ilie fire, insurance with a number of fire insurance companies, to the extent of 835,500, ‘on merchandise, consisting chiefly of oils in barrels and tanks, and barrels for same, their own, held in trust or on consignment, and sold, but not removed, contained in brick warehouse building and in tank cars on siding adjoining promises.’ The oil, to recover for which this suit is brought, was in tank cars on siding adjoining the premises of the Crew-Uevick Company. Consequently, if the policy in suit covered the oil after it was placed by the Pennsylvania Railroad Company upon the siding adjoining the premises of CrewLevick Company, the insurance was null and void, and your verdict must be for the defendant.”

Afterwards, the court being moved for judgment in favor of the defendant non obstante veredicto, these points were affirmed, and judgment entered for defendant as prayed. Upon the assignments of error to this judgment the contention of appellant is that inasmuch as the form attached to the policy states that “it is the true intent and meaning of this policy to fully indemnify the insured for each and every loss by or in consequence of Are, derailment, or collision, * anything contained in the'printed conditions of this policy to the contrary notwithstanding,” the words of said form, “on oil contained in tank cars in transit,” must be given a meaning broad enough to cover the oil in the cars after they had been delivered by the transportation company in the yard and alongside the warehouse of the appellant. To do this, we must ignore the interpretation uniformly given to such contracts for inland transportation, in the absence of any express language to the contrary. We, however, think such interpretation is the sound one, and applicable to the facts in this case. The transit of both cars'and oil was completed when the delivery was made by the railroad companies into the yard and alongside the warehouse of appellant. That this is true as between the transportation companies and appellant, there can be no question. Their responsibility for the safe conveyance of the merchandise was at an end upon its delivery, as stated. It was then in the control of the consignee, the appellant in this case, and out of the control of the transportation companies; and we think there is nothing in the language of the attached form relied upon by appellant, and quoted above, that ought, in reason, to change this well-settled interpretation to one in favor of the appellant. Ao authority has been cited, or business usage shown, to warrant this being done.

Bat the appellant further contends, independently of the force and effect claimed by it for the language in the form, which we have quoted, that the printed words in the beginning of the marine policy to which said form is attached require that the transit should not be considered as ended and complete until the oil was unloaded from the cars into the warehouse or receptacles of appellant. This so-called stipulation is found in the beginning of the printed marine policy, as hereinbefore set out. As much stress is placed upon this language, it may be again quoted:

“Upon all kinds of lawful goods and merchandise, laden or to he laden on hoard the good-, whereof-is master, for this present voyage, or whoever else shall go for master in the said vessel, or by whatever other name or names the said vessel, or the master thereof, is or shall he named or called.

» “Beginning the adventure upon the said goods and merchandise from and immediately following the loading thereon on hoard of the said vessel at-as aforesaid, and, so shall continue and endure until the said goods and merchandise shall he safely landed at-as aforesaid. And it shall and may be lawful for the said vessel, in her voyage, to proceed,” etc.

As we have already remarked, it is obvious that this whole printed policy is a marine one, and the contract set out, or to be set out when the blanks are filled, refers exclusively to sea, and not to land, carriage. The words relied upon by appellant to modify the meaning and change the interpretation that would ordinarily be given to the words “in transit” in the substantive contract for land carriage, attached, are, “and so shall continue and endure until said goods and merchandise shall be safely landed at-as aforesaid.” It is perfectly clear, when read with the context, that these words refer to a cargo to be carried by sea, and not to land carriage. The subject-matter, then, being entirely different, it is hard to see how a stipulation, made expressly as to one kind of service should be made applicable to one entirely different. But, more than this, it is impossible to avoid the conclusion that the language of the clause just quoted, with the blanks unfilled, is absolutely insensible. The words are unmeaning, so far as this contract goes, and can lend no aid in interpreting completed stipulations. Whether we consider the word “landed” as applicable in ordinary parlance to goods or passengers discharged from land vehicles, or as exclusively appropriate to the discharge of a cargo or passengers from a ship, we are clearly of opinion, for the reasons stated, that the clause in question cannot help us in the interpretation of the real contract contained in this policy. We quite agree that in the case of a deed or other contract, where the language used in any particular is doubtful or of difficult interpretation, it must be taken most strongly against the one who offers the deed or employs the language, and that this rule is applicable in certain cases to the interpretation of insurance policies, as being the language of the- insuring company, and not of the insured. This is not true in a case like the present one, where the insured has voluntarily accepted an imperfect document, containing obviously uncompleted and inapplicable stipulations, We think that both parties must be taken to have intended, by leaving the blanks referred to unfilled, that the clauses in which they occur should be nugatory. The doctrine of contra proferentem, so strongly invoked by appellant, cannot, therefore, apply here. In respect to these clauses, no deed is proffered, and no language is employed by either party io create a contract, or special stipulation in a contract. As said by the court below:

“The object [of the contract! was to protect property on land, not at sea. The woi*d ‘landed’ had, therefore, no appropriateness. Tt is impossible to suppose that this was not as apparent to the one party as to the other, or that either of them did not comprehend that the language which really limited the continuance of the risk was that contained in the ‘form attached,’ viz. ‘on oil contained in tank cars in transit.’ ”

The view taken of this first point reserved and passed upon by the court below renders it unnecessary to consider the second point. For the reasons above stated, the judgment of the court below should he, and is, affirmed.