#### MRS. ANNIE A. BAUM, Administratrix of T. A. BAUM Estate, Substitute Plaintiff for T. A. BAUM, Deceased, v. GIRARD FIRE & MARINE INSURANCE COMPANY.

(Filed 25 February, 1948.)

1. Insurance § 61—

A provision in a policy of marine insurance “warranted free of particular average unless caused by tbe vessel or interest being stranded, sunk, burnt, on fire or in collision,” means insurer exempts itself from liability from a particular peril or loss unless such loss arises from “being stranded, sunk, burnt, on fire or in collision.”

2. Same—

A policy of marine insurance indemnifying against loss caused by “collision” does not cover loss occasioned by contact between tbe vessel and a submerged obstruction.

Appeal by plaintiff from *Parker, J.,*at October Term, 1947, of Dake.

In April, 1941, tbe defendant issued to T. A. Baum and others as their respective interests might appear, a policy of insurance on a Fairbanks-Morse 100 HP. Diesel Engine, Serial No. 760519, in tbe scow type ferry “Emperor.” This engine, however, was installed in tbe plaintiff's ferry boat “Dare,” and was never operated in tbe “Emperor.”

On or about 3 May, 1941, while proceeding from Eoanobe Island to Mann’s Harbor, tbe propeller of tbe “Dare” struck some submerged object which plaintiff alleges damaged tbe engine; Tbe plaintiff alleges tbe defendant is liable to tbe estate of her intestate under tbe terms of tbe policy for tbe damages sustained. . ..

Tbe plaintiff T. A. Baum, having died after tbe institution of this action, tbe administratrix of bis estate was substituted as party plaintiff.

Tbe pertinent parts of tbe policy are as follows: “It is further mutually agreed that this policy does not cover bursting or explosion of. *526boilers, collapsing of flues or injury, derangement or breakage of machinery and/or any expenses in consequence thereof or any loss of or damage to any such parts and/or to any other parts of the vessel directly or indirectly resulting from such occurrences, unless the Assured shall establish that such occurrences were caused solely by sinking, stranding, collision with another vessel or burning.”

Attached to the policy is a mimeographed rider, reading as follows:

■ “(1) This insurance covers only upon ONE Faiebanks-Moese-100 H.P. Diesel Engine. Serial Numbee 160519.

“(2) 'Warranted free of particular average unless caused by the vessel or intei’est being stranded, sunk, burnt, on fire or in collision.”

At the close of plaintiff’s evidence the defendant moved for judgment as of nonsuit. The motion was allowed and the plaintiff appeals, assigning error.

*Martin Kellogg, Jr., and John II. Hall for plaintiff.*

*W. A. Worth for defendant.*

Denny, J.

The appellant excepts and assigns as error the refusal of the trial judge to admit certain evidence which would tend to show that the plaintiff requested the Agent of the defendant to issue the policy of insurance involved herein, on the engine in. question in the ferry boat known as the “Dare.”

Conceding but not deciding that the exclusion of this testimony was erroneous, we do not think it is material to a decision on this appeal.

If it be conceded that the policy covers the engine in question, the defendant denies liability on the ground that the policy does not cover the type of accident which the plaintiff alleges caused the damages to the engine. Therefore, the real question before us is whether or not the contact of the propeller of the “Dare” with some submerged object in the channel near Mann’s Harbor, was a collision within the meaning of the policy issued by the defendant.

The provision in the rider, which constitutes a part of the contract, and reads as follows: “Warranted free of particular average unless caused by the vessel or interest being stranded, sunk, burnt, on fire or in collision,” simply means the insurer exempts itself from liability from a particular peril or loss unless such loss arises from “being stranded, sunk, burnt, on fire or in collision.” 45 C. *J.*S., 945.

The language of the insurance contract proper, expressly exempts the defendant from any liability growing out of a collision except where the collision is with another vessel. The rider, howeyer, does not contain such express limitation. Therefore, it becomes necessary to ascertain *527wbat is ordinarily meant by “collision” when used in a marine insurance policy.

In 45 0. *J.*S., 936, it is said: “Injury to, or loss of, tbe insured vessel or goods by collision comes under tbe risk of perils of tbe sea, . . . and tbe word ‘collision’ in a policy means tbe act of two ships or navigable objects striking together. It does not include tbe striking against a submerged or sunken object, or other stationary, nonfloating object.. On tbe other band, it has been held that tbe term ‘collision’ includes the-impact of a vessel with other nonnavigable floating objects, provided such-collision is accidental.” *Lehigh & Wilkes-Barre Coal Co. v. Globe & Rutgers Fire Ins. Co.,*6 F. (2d), 736; 43 A. L. R., 215; *Cline v. Western Assur. Co.,*101 Va., 496, 44 S. E., 700; *Burnham v. China Mut. Ins. Co.,*189 Mass., 100, 109 A. St. Rep., 627, 75 N. E., 74; *Carroll Towing Co., Inc., v. Aetna Ins. Co.,*196 N. Y. S., 698, 203 App. Div., 430; *Newtown Creek Towing Co. v. Aetna Ins. Co.,*163 N. Y., 114, 57 N. E., 302; 11 C. J., 1011.

In *Lehigh & Wilkes-Barre Coal Co. v. Globe & Rutgers Fire Ins. Co., supra,*tbe Court held tbe steering of a vessel under tow in a narrow channel, so that it scrapes the side of tbe channel to its injury, is not a collision within tbe meaning of a marine insurance policy insuring; against collision.

In tbe case of *Cline v. Western Assur. Co., supra,*tbe vessel came in contact with some" “sunken or floating obstruction” and was damaged.. Tbe plaintiff sought to recover damages, and alleged such damages were caused by collision. Tbe decision of tbe Court is succinctly stated in1 tbe syllabus of tbe case, as follows: “Tbe term ‘collision’ in a contract of marine insurance means tbe act of ships or vessels striking together, and does not embrace the striking of a sunken or floating substance.” However, in tbe case of *Carroll Towing Co. v. Aetna Ins. Co., supra,*tbe Court bad before it tbe question whether a contact between a vessel and a floating, but nonnavigable, object constituted a “collision,” within tbe meaning of that word as used in a policy of marine insurance. Tbe Court held that accidental contact with a floating, but nonnavigable, object would constitute a collision within tbe meaning of tbe term as employed in a policy of marine insurance.

In *Burnham v. China Mut. Ins. Co., supra,*tbe Court bad under consideration several policies of insurance. Some of tbe policies insured against “tbe risk of collision sustained” and others against “loss sustained by collision with another vessel.” Tbe Court said: “We are of opinion that tbe two forms meant tbe same thing, namely, collision with another vessel.” Whereupon tbe plaintiff was denied recovery under-tbe policies. His ship bad struck a vessel, sunk several hours before. Tbe Court held tbe plaintiff’s vessel bad not come in contact with another vessel within tbe meaning of tbe policies. .

*528' ■ The authorities are almost unanimous in bolding that contact between a vessel and a submerged obstruction is not a “collision” within the meaning of that word, as used in a policy of marine insurance. Therefore, we hold that the policy of insurance involved herein does not cover the accident which the plaintiff alleges caused the damage to the insured property.

The judgment of the court below, is

Affirmed.