Isbell Enterprises, Inc. v. Citizens Casualty Co. Of New York, Defendant-Third Party v. Marine Mart, Inc., Third Party

JOHN R. BROWN, Chief Judge:

“Touching the Adventures and Perils which we, the said Underwriters, are contented to bear and take upon us, they are of the Seas, Men-of-War, Fire, Lightning, Earthquake, Enemies, Pirates, Rovers, Assailing Thieves, Jettisons, Letters of Mart and Counter-Mart, Surprisals, Takings at Sea, Arrests, Restraints, and Detainments of all Kings, Princes and Peoples, of what nation, condition or quality soever, Barratry of the Master and Mariners and of all other like Perils, Losses and Misfortunes that have or shall come to the Hurt, Detriment or Damage of the said Vessel, &c., or any part thereof * * So goes the Marine Hull Insurance Policy. So goes also —really went — this case which began as a maritime action by Shipowner [1] against the Underwriter [2] for the constructive total loss of the fishing vessel Captain Cracker arising from actions by a crew member who, without authority, singlehandedly took her to sea from under the very eyes of three Shipyard [3] people. With all of the romance that the quaint language of a Hull Policy conjures up, it looked fairly certain that in this latter day we would have to determine whether a crew member, obviously under mental aberrations, whose condition was diagnosed as a schizophrenic reaction of the acute undifferentiated type, and whose pre-Odyssey behavior was characterized by a psychiatrist witness as a psychotic state, could have, as the District Court held, the “willfulness” associated with barratry of master or crew and if, strictly speaking, he did not, then whether such taking was within the coverage for “all other like perils, losses, and misfortunes”. [4]

But this was not to be. For the Underwriter for its own good and sufficient reasons capitulated, paid off Shipowner’s claim, to concentrate its attack on the District Judge’s denial of recovery against Shipyard, impleaded as a defendant, F.R. Civ.P. 14, [5] on the theory that as bailee, it had failed to redeliver or in any event was negligent. We affirm.