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SUN MUTUAL INS. CO. V. OCEAN INS. CO., 107 U. S. 485 (1883)

U.S. Supreme Court

Sun Mutual Ins. Co. v. Ocean Ins. Co., 107 U.S. 485 (1883)

Sun Mutual Insurance Company v. Ocean Insurance Company

Decided January 22, 1883

107 U.S. 485


1. Where, in a suit in admiralty by one insurance company against another upon a contract of reinsurance, it became essential for the libellant to show that the risk which it had assumed was the same as that insured against by the policy sued on, and the circuit court asserted the identity of the insurances not in the findings of fact, but as a conclusion of law, the question on appeal is not whether that might be true as a presumption or inference of fact from the circumstances stated in the findings, but whether, upon the facts found, it must be true as a matter of law.

2. The rule established in United states v. Pugh, 99 U. S. 265, as to findings of fact in cases from the Court of Claims, applies to appeals from decrees in admiralty under the Act of Feb. 16, 1875, c. 77.

3. It is the duty of the assured to communicate all material facts, and he cannot urge as an excuse for his omission to do so that they were actually known to the underwriters unless the knowledge of the latter was as full and particular as his own information.

4. The exaction of information in some instances may be greater in a case of reinsurance than as between the parties to an original insurance. In the former, the party seeking to shift the risk he has taken is bound to communicate such information within his knowledge as would be likely to influence the judgment of an underwriter.

This was a libel in admiralty, filed in the District Court of the United States for the Southern District of New York by the appellee upon a policy of marine insurance. A decree dismissing the libel was rendered in that court, which, on appeal, was reversed by the circuit court, and a decree entered in favor of the libellant. From that decree the present appeal has been prosecuted. The findings of fact made by the circuit court as the basis of its conclusions of law are as follows:

1. At the several times hereinafter mentioned, the libellant and the defendant were insurance companies engaged in the business of insuring against losses by perils of the sea. The libellant, to be referred to herein as the Ocean Company, was incorporated under the laws of the State of Maine, and had its principal place of business at Portland in that state. The

Page 107 U. S. 486

defendant, to be referred to as the Sun Company, was incorporated under the laws of the State of New York, and had its principal place of business in the City of New York.

2. On or about January 19, 1864, the Sun Company issued its open policy, No. 51,564, to the Ocean Company in the usual form for the insurance of cargoes at and from Cuba to Boston or Portland, it being, however, expressly understood and agreed that no risk would be taken under it unless the Ocean Company "take or have an amount on same risk equal to one-half the amount covered by" the Sun Company. On the 9th of February, 1864, it was agreed in writing noted upon the policy that the policy should "cover such other risks as this (the Sun) company may approve and endorse" thereon. Under this new arrangement, the clause limiting the risks to such as the Ocean Company retained an interest in to the extent named, to-wit, an amount equal to one-half that of the Sun, was kept in force; but February 24, 1864, the president of the Sun Company wrote to the Ocean Company as follows:

"We are willing that you be not obliged to retain a half of risk when you do not wish to do so, but we reserve the right to object to amounts returned, which it is not probable will be too great very often."

The policy issued is as follows:

"No.51,564.] By The Sun Mutual Insurance Company [Cargo"

"The Ocean Insurance Company, on account of whom it may concern, loss payable to them, do make insurance and cause to be insured, lost or not lost, at and from Cuba to Boston or Portland, on property."

"This company not to be liable for more than fifteen thousand dollars by any one vessel at one time, unless otherwise agreed upon at the time of endorsement."

"It is understood and agreed that this company does not take any risk unless The Ocean Insurance Company take or have an amount on same risk equal to one-half the amount covered by this company _______ upon all kinds of lawful goods and merchandise, laden or to be laden on board the good vessel or vessels _______ , 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

Page 107 U. S. 487

______. Beginning the adventure upon the said goods and merchandise from and immediately following the loading thereof on board of the said vessel at ______ aforesaid, and so shall continue and endure until the said goods and merchandise shall be safely landed at ______ 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 ports 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 ______. Touching the adventures and perils, which the said Sun Mutual Insurance Company is contented to bear and takes upon itself in this voyage, they are of the seas, men-of-war, fires, enemies, pirates, rovers, thieves, jettisons, letters of mart and counter-mart, surprisals, takings at sea, arrests, restraints, and detainments of all kings, princes, or people, of what nation, condition, or quality soever, barratry of the masters and mariners, and of all other perils, losses, and misfortunes that have or shall come to the hurt, detriment, or damage of the said goods and merchandises or any part thereof. And in case of any loss or misfortune, it shall be lawful and necessary to and for the assured, ______ factors, servants, and assigns to sue, labor, and travel for, in and about the defense, safeguard, and recovery of the said goods and merchandises, or any part thereof, without prejudice to this insurance, to the charges whereof the said insurance company will contribute according to the rate and quantity of the sum herein insured, having been paid the consideration for this insurance by the assured or _____ assigns at and after the rate of two percent nominal ______, subject to such addition or deduction as shall make the premium conform to the established rate at the time the return is made to the company. Property on deck warranted free from claims for damage by wet, exposure, breakage, or leakage. And in case of loss, such loss to be paid within thirty days after proof of loss and proof of interest in the said _____ (the amount of the note given for the premium, if unpaid, being first deducted), but no partial loss or particular average shall in any case be paid unless amounting to five percent, provided always, and it is hereby further agreed, that if the said assured shall have made any other assurance upon the premises aforesaid, prior in date to this policy, then the said Sun Mutual Insurance Company shall be answerable only for so much as the amount of such prior assurance may be deficient towards fully covering the premises hereby assured, and the said Sun Mutual Insurance Company shall return the premium upon so much of the sum

Page 107 U. S. 488

by them assured as they shall be by such prior assurance exonerated from. And in case of any insurance upon the said premises subsequent in date to this policy, the said Sun Mutual Insurance Company shall nevertheless be answerable for the full extent of the sum by them subscribed hereto, without right to claim contribution from such subsequent assurers, and shall accordingly be entitled to retain the premium by them received in the same manner as if no such subsequent assurance had been made. It is also agreed that the acts of the insured or insurers in recovering, saving, and preserving the property insured, in case of disaster, shall not be considered a waiver or acceptance of an abandonment. It is also agreed that the property be warranted by the assured free from any charge, damage, or loss which may arise in consequence of a seizure or detention, for or on account of any illicit or prohibited trade, or any trade in articles contraband of war."

"If laden on board a vessel of a belligerent nation, warranted free from loss or expense arising from capture, seizure, or detention, or the consequences of any attempt thereat; or if by a neutral vessel, warranted not to abandon in case of capture, seizure, or detention, until after condemnation of the property insured, nor until ninety days after notice of said condemnation is given to the company; also warranted not to abandon in case of blockade, and free from any expense in consequence of capture, seizure, detention, or blockade, but in the event of blockade to be at liberty to proceed to an open port, and there end the voyage, any stipulations in this policy to the contrary notwithstanding."

"In case of claims for damage on dry goods or hardware exceeding fifteen percent, the company to have the privilege of settling upon the principle of a salvage loss, paying to the assured the sum insured, with the freight and the duties."

"In witness whereof, the president or vice-president of the said Sun Mutual Insurance Company hath hereunto subscribed his name and the sum insured, and caused the same to be attested by their secretary in New York, the sixteenth day of January, one thousand eight hundred and sixty-four."

"MEMORANDUM -- It is agreed, that bar, bundle, rod, hoop and sheet iron, wire of all kinds, tin plates, steel, madder, sumac, wickerware and willow, manufactured or otherwise, salt, grain of all kinds, tobacco, Indian meal, fruits (whether preserved or otherwise), cheese, dry fish, vegetables and roots, rags, hempen yarn, bags, cotton bagging and other articles used for bags or bagging, pleasure carriages, household furniture, skins and hides, musical

Page 107 U. S. 489

instruments, looking-glasses and all other articles that are perishable in their own nature are warranted by the assured free from average unless general; hemp, tobacco stems, matting and cassia, except in boxes, free from average under twenty percent, unless general, and sugar, flax, flax seed and bread are warranted by the assured free from average under seven percent unless general, and coffee in bags or bulk, pepper in bags or bulk, and rice free from average under ten percent unless general."

"Warranted by the assured free from damage or injury from dampness, change of flavor, or being spotted, discolored, musty or moldy, except caused by actual contact of sea water with the articles damaged, occasioned by sea perils. In case of partial loss by sea damage to dry goods, cutlery, or other hardware, the loss shall be ascertained by a separation and sale of the portion only of the contents of the packages so damaged and not otherwise, and the same practice shall obtain as to all other merchandise as far as practicable."

"This company is not liable for leakage on molasses or other liquids unless occasioned by stranding or collision with another vessel."

"If the voyage aforesaid shall have been begun and shall have terminated before the date of this policy, then there shall be no return of premium on account of such termination of the voyage."

"In all cases of return of premium in whole or in part, one-half per cent upon the sum insured is to be retained by the assurers."

"100,000 (one hundred thousand dollars)."

"S. WHITEHEAD, Vice-president"

"E. R. ANTHONY, Secretary"

"1864. February 2. Additional $100,000 (one hundred thousand dollars), subject to same conditions as above."

"S. WHITEHEAD, Vice-president"

"E. R. ANTHONY, Secretary"

Written on margin opposite additional subscription the following:

"Warranted by the assured free from all claim for loss or damage arising from any warlike or belligerent act, or from capture, seizure, restraint, or detention by any privateer, cruiser, or armed vessel whatsoever."

3. This policy was issued with the expectation that it would be used by The Ocean Company for the purposes of reinsurance,

Page 107 U. S. 490

an arrangement for such a business on the part of the company having been made.

4. December 24, 1863, Charles S. Pennell, as an owner and agent of the ship C. S. Pennell, of 975 tons burden, and then lying in the harbor of Portland, Maine, chartered the whole of the vessel, including the staterooms in cabin not used by the officers, and deckrooms not used for the crew or for sails and stores, to Sutton & Co. for a voyage from New York to San Francisco. No cargo was to be received on board except with the written consent of the charterers, and they were to pay "for the charter or freight," on the good and proper discharge of the cargo in San Francisco, $26,500, less two and one-half percent commission. George M. Melcher was at the time master of the ship, and his primage on the freight money, if earned, would have been $1,325. This charter will be referred to as the San Francisco charter.

5. After the making of this charter, the vessel sailed from Portland to New York, and was there put up and advertised by Sutton & Co. as a general ship for San Francisco. That firm at that time represented what was known as the Dispatch Line of San Francisco packets.

6. January 30, while the ship was in New York, loading under her San Francisco charter and advertised for that voyage, her master chartered her again to the Peruvian government. By the terms of this charter, she was to sail from New York on or before June 1, 1864, to San Francisco, and thence proceed with all convenient dispatch to Callao, Peru, and from thence, if on inspection she should be found to be well conditioned for the voyage, to the Chincha Islands for a cargo of guano to be taken to Hamburg or Rotterdam. The freight to be paid was at the rate of 4 per ton of 20 cwt. British net weight of guano, subject, however, to a deduction of five shillings per ton if the vessel was not ready in Callao to proceed to Chinchas by December 15. This charter will be referred to as the Rotterdam charter.

7. On the 5th of February, 1864, while the ship was is New York loading, Charles S. Pannell, a part owner, took from the Ocean Company a policy insuring his interest in the ship for $8,000 against war risks, and his interest in the Rotterdam

Page 107 U. S. 491

charter for $8,000 against marine risks on the voyage between New York and the Chinchas. In this policy, the duration and locality of the risk was described as "at and from New York, to, at, and from San Francisco, Callao, and the Chinchas."

8. George M. Melcher was at the time owner of one-eighth of the ship, and master. On the 20th of March, he wrote one Sawyer, his agent at Portland, advising that the ship was about ready to sail and directing that insurance be effected on his interest as follows:

War risk to San Francisco, ship . . . . . . . . . $ 5,000

Charter to San Francisco, $26,500-1/8 . . . . . . 3,300

Primage on same . . . . . . . . . . . . . . . . . 1,325

Homeward charter from Chinchas, insure out, say

1,750 tons at 4 to 7,000, at currency rate

of exchange, $52,400, my 1/8. . . . . . . . . . 6,550

Primage on same . . . . . . . . . . . . . . . . . 2,650

Chronometers, Dent, 1883; Negus, 1,261. . . . . . 500

And our effects, clothing, &c. . . . . . . . . . 1,000



In the same letter it was said: "I think you had better put 5 or $6,000 more marine risk in case I should lose the ship."

9. Upon the receipt of this letter, Sawyer applied to the Ocean Company for a policy upon Rotterdam charter, primage, and personal effects to San Francisco. In doing so, he exhibited his letter of instructions and explained fully all the circumstances. The risk was accepted, and the policy issued March 23d in which the risk was described as follows: "$6,550 on charter; $2,650 on primage, and also $1,500 on property on board ship Charles S. Pennell at and from New York to San Francisco."

10. On the same day, the Ocean Company insured the master for $3,000 on his interest in the ship during the whole of her voyage, describing the duration and locality of the risk as "at and from New York to, at, and from San Francisco and Chinchas, with usual liberties at Callao, to her port of advice and discharge in Europe."

11. On the same 23d of March, the president of the Ocean Company wrote the vice-president of the Sun as follows:

Page 107 U. S. 492

". . . I also enclose returns for registry as follows: . . . $5,000, ship C. S. Pennell, to San Francisco and Chinchas, war; $5,000 fr. of do. . . . P.S.: I also enclose an additional return for insurance on charter, primage, and property per ship C. S. Pennell to San Francisco only."

The returns enclosed in this letter were as follows:

"To the Sun Mutual Insurance Company:"

"Enter on open policy of this company No. 51,564, $5,000 on charter of ship Charles S. Pennell at and from New York to, at, and from San Francisco and Callao to Chinchas."

"Rate, three percent on board."

"New York, March 23, 1864."

"J. W., V.P. Ocean Ins. Co."

"Per G. A. W., Sec'y."

"To the Sun Mutual Insurance Company:"

"Enter on open policy of this company No. 51,564, war risk only, $5,000 on ship Chas. S. Pennell at and from New York, to, at, and from San Francisco to Callao to Chinchas."

"Rate, three percent on board."

"New York, March 23, 1864."

"J. W., V.P. Ocean Ins. Co."

"Per G. A. W., Sec'y."

"Per G. A. W., Sec'y."

"To the Sun Mutual Insurance Company: Enter on open policy of this company No. 51,564, $6,550 on charter, $2,650 on primage, and $1,500 on property, on board ship Chas. S. Pennell at and from New York to San Francisco, including war risk."

"Rate, six percent on board."

"New York, March 23, 1864."

"J. W., V.P. Ocean Ins. Co."

"Per G. A. W., Sec'y."

The first and second of these returns were for reinsurance on the risks taken for Charles S. Pennell, and the last on account of the risks taken in favor of the master of the Rotterdam charter and personal property on board, from New York to San Francisco. The risk to the vessel, taken in favor of the master at the same time, was not reported to the Sun Company.

12. Upon the receipt of this letter, with its enclosures, the

Page 107 U. S. 493

president of the Sun Company wrote the Ocean Company, under date of March 24, as follows:

"Your favor of the 23d inst. is received, . . . and returns as stated. Those . . . on charter per Chas. S. Pennell, $10,700, in conformity thereto. For the marine risk per Chas. S. Pennell to San Francisco, thence to Callao and Chinchas, our regular tariff rate is four and one-half percent; the war risk is worth the same, but we propose to enter for both marine and war on $5,000 for four percent."

13. To this the president of the Ocean Company replied, under date March 26, as follows;

"Your favor of the 24th inst. is received. I think really, considering that you have the risk on charter, primage, and property to San Francisco at full rates, you should take the war and marine to San Francisco and Chinchas on C. S. Pennell at six percent, as there is or will be but little risk in the Pacific after leaving San Francisco. I can have both risks taken at less than these rates. . . ."

14. In response to this, the vice-president of the Sun wrote, under date of March 28, as follows:

"Your favor of the 26th inst. is received with a return, . . . which is entered in conformity thereto, as have also been the returns of the 23d inst., per ship C. S. Pennell."

15. The endorsement of these returns upon the open policy was as follows:

1864 Vessel From To

March 23 Ship Chas. S. Pennell N.Y., San Francisco Callao & Chinchas

Am'ts Rates Prems.

On charter, $5,000. 3 $150 marine


March 23 Ship Chas. S. Pennell N.Y. San Francisco Callao & Chinchas

Am'ts Rate Prems.

On vessel $5,000. 3 $150 war only

" " New York, San Francisco, charter, 6,550; 6,393 war & marine

" " New York, San Francisco, primage, 2,650; 6,159 war & marine

" " New York, San Francisco, property, 1,500; 6,090 war & marine

16. At the time these returns were made and accepted, the Sun Company had actual knowledge of the San Francisco charter, and had taken risks on cargo shipped on board the vessel to San Francisco under it.

Page 107 U. S. 494

17. When the returns were made by the Ocean Company to the Sun for acceptance and endorsement, no special mention was made of the Rotterdam charter, and no information was given the Sun Company of what had transpired between the Ocean Company and the agent of the master when the insurance was effected. No allusion was made to the letter of the master to his agent, which was shown the president of the Ocean in connection with the application to that company, and the Sun Company had no other knowledge of the existence of the Rotterdam charter than such as is to be inferred from the correspondence which preceded the acceptance of the risk.

18. Both the president of the Ocean Company and the vice-president of the Sun Company are dead. The first named died in July, 1869, and the last some time before January 1, 1867.

19. The ship sailed from New York to San Francisco about the first of April, 1864, having on board a full cargo under the San Francisco charter. Having met with a disaster on the voyage, she put into Rio Janeiro, where she was condemned and sold, and the voyage broken up.

20. The loss under the risk taken in favor of Charles S. Pennell, both on the ship and Rotterdam charter, was paid by the Sun Company without objection, October 23, 1865, and May 5, 1866.

21. In due time after the loss occurred, the master filed with the Ocean Company his proofs under his policy on account of the Rotterdam charter and his primage thereon. These proofs were promptly forwarded by the Ocean Company to the Sun, and no objections to their form were ever made. Payment was refused by the Sun Company on the ground that the master was overinsured, and also upon the ground that the ship had been fraudulently cast away, and the Ocean Company was advised not to pay the claim on that account.

22. Pursuant to this advice, payment was refused by the Ocean Company, and in October, 1866, Melcher, the master, commenced suit upon his policy in the courts of Maine.

23. Of the commencement of this suit notice was immediately given the Sun Company by the Ocean Company, and the Sun Company interested itself in the preparation for defense.

Page 107 U. S. 495

An agent of those interested, including another company having a risk upon the voyage, was sent to Rio Janeiro to ascertain the facts in relation to the loss and report. In the meantime, the suit upon the policy was suffered to remain in the court without being pressed. At the October term, 1869, the counsel for the plaintiff insisting that something should be done, it was agreed, on behalf of the Ocean Company, that the case should, if possible, be tried at the January term, 1870. In November or late in October, 1869, the counsel on the part on the part of the Ocean Company visited New York for the purpose of having a personal interview in respect to the case with the officers of the Sun Company. He there met the then vice-president of the company. At the interview which then took place, the points of defense that had been previously suggested by the companies having been discussed, the counsel stated that in his opinion, they could not be sustained by the evidence, but that he intended to make the point that the Rotterdam charter was not included in the risk as described in the policy. He said, however, that he had been informed by the attorneys who conducted the case for the plaintiff they had extrinsic evidence which would establish the liability and which they expected to introduce. This extrinsic evidence he considered inadmissible, but at the same time said that if admitted, the defense to the action would undoubtedly fail. He then informed the Sun Company that upon the presentation of the evidence on the trial, he should object to its admission, and he had no doubt the presiding judge, under the practice of that state, would take the advice of the supreme court upon that question before proceeding further. If the evidence was ruled out, he expected to succeed in his defense, but if admitted, he had little hopes. He did not at that time know precisely what the testimony would be, and he did not communicate to the company the particular facts relied upon.

24. At the conclusion of the interview, he was instructed by the vice-president of the Sun Company to go forward with the defense and make every point possible. He was paid at the time $100, for which he gave a receipt, as follows:

Page 107 U. S. 496

"NEW YORK, November 2, 1869"

"Received from the Sun Mutual Insurance Company $100 on account of legal expenses and services for defending the Ocean Insurance Company of Portland from claims for loss on charter and primage in case of the ship C. S. Pennell, reinsured by the Sun Mutual Insurance Company for the Ocean Insurance Company."


25. At the April term, 1870, the cause came on for trial, and the questions were raised upon the admissibility of the extrinsic evidence and reported to the supreme court for its opinion. The testimony objected to included the deposition of Sawyer, the agent of the insured, as to what transpired between him and the Ocean Company at the time the insurance was effected; the letter from the insured to Sawyer specifying the risk to be taken, and which was submitted to the company by the agent, as showing the authority under which he acted, and also the Rotterdam charter.

26. On the 6th of October, 1870, the attorney of the Ocean Company sent the Sun Company a copy of the case thus made, which contained a statement of the evidence offered and objected to.

In the letter transmitting this document, the attorney said:

"The question now presented to our court is simply whether he (the insured) shall be allowed to put in the testimony. If not allowed, there is an end of the case. If allowed, then we go to trial upon other points of defense."

26 1/2. In reply to this, the president of the Sun Company wrote as follows:

"NEW YORK, October 15, 1870"

"Messrs. J. & E. M. Rand, Portland, Me."

"GENTS: Yours of the 6th instant was duly received, also the printed documents which you sent, and which we have perused carefully."

"It is shown by the testimony that the policy was made in accordance with the application of the plaintiff, and that there was no misunderstanding in relation thereto calling for the admission of

Page 107 U. S. 497

evidence outside of the policy to explain it; certainly none would be admissible to contradict it, for that would be setting up a new contract other than the policy itself which is sued upon."

"It is important, therefore, to have excluded all evidence tending to contradict the policy. By the policy as made, the plaintiff insured on charter, New York to San Francisco, $6,550; on primage, $2,650; on personal effects, $1,500. There is no such charter shown, but the plaintiff sets up a charter to San Francisco and ports beyond, as described in the charter party. The insurance of the charter to San Francisco was an insurance of only a part of said charter, not amounting even to a part insurance of the charter, because as the charter party is to the effect that no money is to be paid by the charterers unless the whole round voyage is performed, and the contract being indivisible if no money was to be paid for the passage to San Francisco, the plaintiff had no insurable interest in that part of the charter; besides, the ship was loaded to her full capacity and was carrying full freight on said passage outside of the charter, which was covered under special policies. The plaintiff has therefore, by the perils insured against in the policy, suffered no loss beyond what he has already been indemnified for under his policy on freight. The interest of the plaintiff in the passage to San Francisco was therefore an impossible interest. I do not mean to say that he had no interest in the charter party, but the risk under our policy being only to San Francisco, ended before the charter party could by any possibility be performed. I think, therefore, that the main question is the question of interest, and think that the above reasons will be found sound in law. Please let me hear from you as to your opinion of them, and also as to your line of defense -- what your points are -- in order that I may be able to form some opinion as to the ultimate issue of the suit."

Yours respectfully,

[Signed] J. P. PAULISON, President

27. In or about January, 1872, the supreme court decided that the testimony was admissible, and on the 16th of that month the attorneys advised the Sun Company of the result and sent a copy of the opinion delivered. They also said that the case would probably come up again for hearing in a week or two, and asked that papers of any kind relating to the defense in the possession of the Sun Company might be forwarded to them at once.

Page 107 U. S. 498

28. Upon the receipt of this last letter, the case was submitted by the Sun Company to its counsel in New York, who gave his opinion in writing to the effect

"that the Sun Mutual Insurance Company's liability under the reinsurance policy cannot be extended beyond the obvious import of the terms in which it is expressed. The letter of Melcher ordering the insurance not having been exhibited to them nor the explanations of Sawyer made to them, they cannot be affected by them, and hence, if the admission of extrinsic evidence as to what took place between Sawyer and the Ocean Company, when the original insurance was made, varies the case as between that company and Melcher from what it appears to be on the face of the original policy, I cannot see that it is a matter that concerns the Sun Company."

29. January 29, a copy of this opinion was forwarded by the Sun Company to the attorneys in Portland and attention called to its contents.

30. At the January term, 1872, the cause was again tried and, the testimony being all in, the case was withdrawn from the jury and submitted to the court to enter such judgment as law and the evidence required. The point was directly made by the Ocean Company that the policy never attached, because the ship never actually or legally sailed under the Rotterdam charter.

31. On the 12th of July, 1872, the case having been printed, a copy was sent by the attorneys in Portland to the Sun Company, with a statement that the cause would come on for argument before the full bench in a few days. Permission was also asked to draw on the company at sight for $500 on account of fees and disbursements.

31 1/2. On the fifth of July, the Sun Company replied, denying its liability to pay fees and saying that "as the suit is against the Ocean Company and not against us, you must look to them for your fees." It is also said in the letter that when the payment of $100 was made in November, 1869, the case as subsequently developed was not fully understood.

32. A judgment was afterwards rendered in the suit against the Ocean Company for $9,200, and interest from April 27, 1865.

Page 107 U. S. 499

33. This judgment was satisfied by payments of the Ocean Company, as follows:

July 19, 1873 . . . . . . . . . $ 4,234.29

July 21, 1873 . . . . . . . . . 10,086.55

34. The costs in the action which were included in the payment were $574.17.

35. The account of the counsel in the cause for their professional services and disbursements, over and above the $100 paid by the Sun Company, was $1,164.70. This was also paid by the Ocean Company July 23, 1873, and was reasonable.

36. Payment of the amount of the judgment and the account for counsel fees was duly demanded of the Sun Company before the commencement of this suit, and refused.

The following is the statement by the circuit court of its conclusions of law:

1. The Sun Company's policy covers the Rotterdam charter.

2. The policy is not void because of any concealment by the Ocean Company.

3. The judgment in the Maine court against the Ocean Company is conclusive upon the issues there made and decided, and binds the Sun.

4. This action is not barred either by the statute of limitations or by lapse of time.

5. The Sun Company is bound in law to reimburse the Ocean for moneys expended on account of counsel fees, and the costs and expenses in defending the suit in the Maine court.

6. The libellant is entitled to a decree against the defendant for:

1. Amount paid in satisfaction of the Maine judgment $14,320.84

2. Amount paid for counsel fees, expenses, etc. . . . 1,164.70


In all . . . . . . . . . . . . . . . . . . . . $15,485.54

With interest from July 21, 1873, and the costs in both courts.

Page 107 U. S. 500

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