THE OTHA J. SAMPLE.
THE OTHA J. SAMPLE. SCIPLE et at v. THE OTHA J. SAMPLE. (District Court, D. New Jersey.
SnIPPING-REGULATIONS AS TO STEAM BOH,ERS.
May 27, 1898.)
Under Rev. St. § 4431, which prOVides that "every plate of boiler Iron or steel made for use in the construction of steamboat bollers shall be so stamped in such places that the marks shall be left visible when such plates are worked into boilers," it is not necessary that the builder of a steamboat boiler furnish a name plate, shOWing the name of the manufacturer, place where manufactured, and the tensile strength of the boiler, in the absence of a special contract calling for same.
This was a libel in rem by H. M. Seiple and others against th& steamship Otha J. Sample. Judgment for libelants.
Georgea.. iVroom, fol' Ifbelanta. John P; IHarned, for ' This libel is founded on a writE:IRKPATRIOK, ten contl'aetfor balance due upon the purchase price of a boiler furnished6yilie libehints for the ,steam vessel Otha J. sample. The contract ClIlls for Qnevertical Inllrine boiler of certain dimensions, which sbltlrbe subject to the tests and laws governing; the building of Jnarine bpilers according to the United States laws; the said boiler to pass inspection by United States inspectors for 125 pounds ste:tl'l1;w;orking pressure, and to be complete, with grates,water pan, and hood made of heavy sheet iron. The boiler was built and delivered, and passed an inspection of the United States' inspectors for steam, working preSsure. In every respect that which the was furnished' complieu with the requirements of the contract. The did not furnish the "hood" called for in the contract,but' hllve made an allowan«e of seven dollars therefor, as they under an agreement made with Sample, the owner of the steam vessel: ,J satisfied from the evidence adduced that such agreementwas, made. ,It is testified to by Mr. Toadvine ,and Mr. Seiple on the part of the libelants, and denied by the defendant Sample, but the conduct of Sample in regard to the several bills rendered by the libelants on which the credit of seven dollars for failure 'to supply the "hood" was entered and: noted', whiclI!bills were accepted by Sample without, protest or comment, lend' strength to the position taken by the libelants that the rebate of selven (lollars from the face of the bill had been agreed upon as the value of the "hood;" The defendant claims an',allowance for the failure of the libelants to furnish with the beiHet a "name plate," showing the name of the manufacturer, the "where' manufacturi:ld, liM the number of' pounds tensile strain it would bear to the sectional 'square inclJ',. The 4431stsection of the Revised Statutes reqUires' "thatevel.'y plate Of boiler iron or steel made for use in the construction of steamboat boilers shall be so stamped in such places that the marks shall be left visible when such plates are worked into boilers." There does not seem to be any statutory requirement for a "n.aI\le plate" sU,eh as defendant has demanded, nor is it called for by the contraCt. Judgment should be for the libelants in the, sum,demanded.
INSURANCE CO. OF NORTH AMERICA V. CANADA. SUGAR-REFINING CO.
INSURANCE CO. OF NORTH AMERICA v. CANADA SUGAR-REFINING CO., Limited. (Circuit Court of Appeals, Second Circuit. No. 95.
L MARINE INSURAKCE-PROFITS-'TO'UL Loss.
April 19, 1898.)
. Under a contract of insurance of the profits on a cargo of sugar "against total loss only" there is no actual total loss of profits where any part, however small, of the cargo, is saved, and reaches the owner in condition to earn a profit; and in such case no recovery can he had.
SAME-COl\STRUCTIVE TOTAL Loss-MomTY RULE.
In the United States the owner may abandon ship or cargo, and treat the loss as constructively total, when the damage exceeds 50 per cent. of the total value; In cases of constructive total loss, abandonment is indispensable to recovery of insurance, except when it couid not possibly be of benefit to the insurer. Where insurance is upon the profits of a cargo, and not upon the cargo itself, a partial loss cannot. be converted by abandonment into a constructive total loss.
Appeal from the 'District Court of the United States for the Southern District of New York. This was a libel in personam by the Canada Sugar-Refining Company against the Insurance Oompany of North America to recover under a policy of marine insurance on profits on a cargo of sugar. The circuit court rendered a decree for libelant (82 Fed. 757), and the respondent has appealed. Clifford A. Hand, for appellant. Wilhelmus Mynderse, for appellee. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. WALLACE, Circuit Judge. The libel in this cause was filed to recover upon a contract of insurance with the libelant, evidenced by a certificate dated April 29, 1893, delivered by the appellant at Philadelphia, whereby the latter caused to be insured under its open policy No. 117,407, against pel'i!S of the sea, "$15,000 on profits on cargo of sugar against total loss only, valued at sum insured, shipped on board the British ship John E. Sayre at and from Iloilo to Montreal." The policy contains the usual clause making the insurer responsible only for so much as the amount of prior insurance may be deficient towards fully covering the property at risk. The sugar was owned by the libelant, consisted of about 2,460 tons, was of the value of about $181,000, and was insured for $166,145 by the Atlantic Mutual Insurance Company_ The insurance of the Atlantic Mutual Insurance Company covered the original cost price of the sugal"to the libelant and an advance in market price since:its purchase by the libelant; and when the insurance with the appellant was effected there had been a still further advance in marketpnce, so that the insurance on profits really