Egan v. British & Foreign Marine Ins.

Mr. Presiding Justice Sears delivered the opinion of the court. It is conceded by counsel for appellant that if appellee is entitled to recover at all, the amount assessed as damages by the trial court is correct. But it is contended that there should be no recovery at all. This contention is based substantially upon two ground, viz.: First, that because appellee did not contribute at all to the expense of the recovery of the amount awarded against the propeller “ Marion,” therefore, under the rule of law governing, appellee is not entitled to any share of the amount recovered until all the loss sustained by appellant has been made good therefrom; and, secondly, that the agreement entered into March 15, 1890, between the appellant and other owners of the “ Armour ” on the one part, and appellee and others as insurers of the cargo upon the other part, recognizes the right of appellant to the amount recovered as loss upon the vessel and estops appellee as insurer of the vessel from any claim thereto. The general rule is well settled that in marine insurance, when the vessel is insured for a part only of its value, the owner is held to be a co-insurer as to such uninsured part, and in case of a loss, the underwriter pays only such proportion of the entire loss as the entire amount of insurance bears to the entire value of the property insured. Parsons on Mercantile Law (2d Ed.), 537; Parsons on Marine Ins., Vol. 2, p. 405; Angell on Fire & L. Ins., Sec. 249; Trull v. Roxbury M. F.I. Co., 3 Cush. 263; Whiting v. Ind. Mut. Ins. Co., 15 Md. 297; North of England Ins. Ass’n v. Armstrong, L. R., 5 Q. B. 244. In this case the policy being a valued policy, appellant and his co-owners wrnre, under the rule announced, to be held as co-insurers with appellee to the extent of the uninsured portion of- the fixed value. Appellant having recovered against the vessel which caused the loss, the question arises whether he is liable to appellee, as co-insurer, for its proportionate share of the amount thus recovered. We are of opinion that he is so liable, both upon general principles, as expressed in North of England Ins. Ass’n v. Armstrong, supra; Hart v. Western Railroad Co., 13 Metc. 99; Mobile, etc., R. R. Co. v. Jurey, Ill U. S. 584; Hall v. Railroad Co., 13 Wall. 367; Phoenix Ins. Co. v. E. & W. Trans. Co., 117 U. S. 312; C. & A. Railroad Co. v. Glenny, 175 Ill. 238—and as well by force of the express terms of the contract of insurance here in question. In re The Potomac, 15 Otto, 630. But it is strenuously contended that another rule, obtaining in cases of marine insurance, applies and governs here, viz., that when the owner, and, to the extent of uninsured value, co-insurer, has recovered part of the loss, through his own effort and at his own expense, by action against the one causing the loss, the underwriter, who has failed or refused to contribute to the expense of such action, can not enforce payment of any part of the amount recovered except it be the surplus remaining after satisfying the owner’s loss. Cases are cited as announcing this doctrine. It is, however, unnecessary to consider them beyond stating that however well the doctrine contended for may be established, it has no application to the facts of this case. In this case there was no failure or refusal to contribute to expenses of litigation against the “ Marion ” which could prejudice the rights of appellee, for by the contract of insurance it was expressly stipulated that all such expense should be a charge upon the insured property and should not be borne by the appellee. There remains to be considered only the effect of the contract entered into between appellant as one of the owners of the vessel, and appellee, as one of the insurers of the cargo. By this contract it was very definitely stated just what share of the "amount recovered appellee and others should get as -insurers of the cargo, and also what share thereof appellant and others should get as owners of the vessel. But the writing did not purport to determine any rights to the money thus recovered beyond fixing the relative interests of vessel owner and cargo owner. The value of the vessel in relation to the value of the cargo, and the rule of distribution between these two interests was settled, and nothing more. What disposition should be made by appellant and the other owners of the vessel, of the share received by them upon the loss on the vessel, is in no way determined by this contract. Appellee did not become a party to it as an insurer of the vessel, but merely as an insurer of the cargo. We are unable to find anything in the contract which in any way prevents appellee from recovering its proportionate share of the money paid by owners of the “ Marion ” for damage to the vessel owned by appellant and others. The error assigned as to the amount of the judgment having been waived by the arguments, it is unnecessary to consider that question. The judgment is affirmed.