Baltic (Propeller), fire, 30 Aug 1896

The steamer BALTIC was burned at Collingwood on Monday. The loss was $15,000.
      Port Huron Daily Times
      Tuesday, September 8, 1896

      . . . . .

      STEAMER "BALTIC" BURNED
Collingwood, Sept. 6 -- Yesterday morning the steamer BALTIC, one of the pioneer steamers of the northern waters, was burned to the waters edge in the Hurontario Street slip here. The fire was first noticed at a quarter to 3 o'clock. Fortunately there was only a very light wind, and that from the south east, otherwise much valuable property in the immediate neighborhood would have been destroyed. The cribwork of the town wharf on the east and west side of the slip was burned, as was a few cords of wood owned by Messers Craig & Darling, whose tug was burned a few weeks ago near Michael's Bay. The burned steamer ( FRANCES SMITH, as she was formerly called ) was the first large boat to be built at a ship-yard on the northern lakes. She was built to the order of Captain Smith, by Simpson at his ship-yard in Owen Sound, during the Winter of I866-67, and was launched in June of the latter year. That year she was placed on the route between Collingwood and Owen Sound in the place of Captain Smith's small river steamer CLIFTON, which had done a profitable business for some years previous. Capt. Smith commanded the FRANCES SMITH until his death in 1872, after which Capt. Tait Robertson took charge. She was insured for $15,000,
      Meaford `Monitor'
      Friday, September 11, 1896

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Appendix 1 - Supreme Court Decision

THE LONDON ASSURANCE CORPORATION
(DEFENDANT) APPELLANT;

THE GREAT NORTHERN TRANSIT
COMPANY (PLANTIFF) RESPONDENT

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
.
A policy issued in 1895 insured against fire the hull of S.S. Baltic including engines ,&c., "whilst running on the inland lakes , rivers and canals during the season of navigation. To be laid up in a place of safety during winter months from any extra hazardous building." The Baltic was laid up in 1893 and was never afterwards sent to sea. In 1896 she was destroyed by fire.

Held, reversing the judgment of the Court of Appeal (25 Ont.App.R.393) that the policy never attached; that the steamship was only insured while employed on inland waters during the navigation season or laid up in safety during the winter months.

Held also, that the above stipulation was not a condition but rather a description of the subject matter of the insurance and did not come within sec.115 of the Ontario Insurance Act relating to variations from statutory conditions.

Appeal from the decision of the Court of Appeal for Ontario(1) affirming by an equal division of the court the judgement at the trail in favour of the plaintiff.
The plaintiff brought actions against seven insurance companies on policies insuring his S.S Baltic against loss by fire. The action against the Alliance Assurance Co. was tried and resulted in a verdict for the plaintiff, and on the company appealing it was agreed that the evidence on that trial should be treated as the evidence in all cases. The appeal resulted in the verdict at the trial being sustained by an equal division in the Court of Appeal. The Alliance Assurance Co. then settled with the plaintiff, the other six companies joining in an appeal to this court.

Wallace Nesbitt and McKay for the appellant referred to Slinkard v. Manchester Fire Assur. Co. (1): Benicia Agricultural Works v. Germania Ins. Co. (2); Pearson v. Commercial Union Assur. Co. (3).

Osler Q.C. and Douglas for the respondent cited wanless v. lancashire Ins. Co (4); Goring v. London Mutual Fire Ins Co. (5); Parsons v. Queens In. Co, (6)

The judgement of the court was delivered by:

SEDGEWICK J. - On the 5th September, 1896, the steamer Baltic owned by the Great Northern Transit Company, Limited, the present respondents, was burned while in dock at Collingwood, Georgian Bay. At the time of the fire he was insured against fire to the amount of $11,000 in seven companies, all of them except the Alliance Assurance Company being the present appellants. The companies having disputed their liability actions were brought and one of these cases was tried before Armour C.J., with a jury at Toronto in September 1897. Judgement was there given in favour of the plaintiffs, which judgement was sustained upon appeal by an equally divided court, Maclennan and Moss JJ, being of opinion that the judgement should stand, the Chief Justice and Osler J. dissenting. The appeal is from the judgement to this court.
      (1) 55 Pac.Rep.417.
      (2) 97 Cal. 468.
      (3) 1 App.Cas. 498.
      (4) 23 Ont. App. R.224.
      (5) 10 O.R. 236.
      (6) 2 O.R. 45.
It is an admitted fact that the last trip of the Baltic was made in the season of 18893. In September of 1893 she was laid up at Collingwood and from that date she never again went to sea. It also appeared that during 1894, 1895 and 1896 she never obtained a certificate of inspection provided by the Dominion Act without which she could not have been run; that her planking, her frames and her engine bed were in such condition that it would have been impossible for her to have been moved from her position by her own motive power; that her electric light plant and certain portions of her furniture had been removed, and that she was in such condition that she could not in any sense be described as a running boat.
Only two questions are raised; first, as to whether at the time of the fire the vessel insured came within the risk described in the policy; and secondly, as to whether the provisions of the Ontario Fire Insurance Act in regard to the conditions had been or should have been complied with.
The wording of the description of the risk in each of the policies is identical and is as follows:
On the hull of the S. S. Baltic, including engines, boilers and appurtenances thereto, anchors, chains, masts, spars, rigging, sails, cabin and office furniture, beds, bedding, linen, silverware and platedware, cutlery, china, glassware and earthenware, looking glasses, mirrors, wheelbarrows, trucks, clocks and apparel on board said steamer whilst running on the inland lakes, rivers and canals during the season of navigation.
To be laid up in a place of safety during winter months from any extra hazardous building.
Ordinary outfit to be allowed in winter and spring.
It is understood and agreed that the steamer insured under this policy has permission to carry merchandise, hazardous and non hazardous, as freight from port to port with one barrel of coal oil for steamer's use.
And the controversy mainly turns upon interpretation to be given to the words "whilst running on the inland lakes, rivers and canals during the season of navigation."
Three contention have been put forward:
The first (and it is that upon which the judgement of the trial judge is based and is followed by Mr. Justice Maclennan in the Court of Appeal) is that the clause was intended to confine risk to fire whilst the vessel was inland, whether on the lakes, rivers or canals during the season of navigation, but not on the ocean or ocean port." Another interpretation is that the phrase "whilst running" &c., applies to and qualifies not the S. S. Baltic itself but only some of the property and articles intended to be included in the risk. The third interpretation is that by the words in question the companies undertook to insure not a vessel laid up during the season of navigation but a vessel actively engaged or employed during that period upon the inland lakes, rivers or canals - that during the season of navigation she must be a vessel in use or as they say 'in commission," (a term applicable to national ships of war) - with the necessary ship's papers and properly provided with master, crew and everything requisite for the ordinary prosecution of the business of a merchant vessel.
I am not able to agree with the view of the learned Chief Justice of the Queen's Bench Division. IT is true that the word "inland" is an emphatic word confining the risk so far as locality is concerned to inland lakes, rivers and canals. So that if the loss should occur while the vessel happened to be say, at Halifax or any other Atlantic port or on the high seas, she would not be covered. But there are, it seems to me, other equally emphatic words and one of these words is "running." The Learned Chief Justice's interpretation gives no effect to it. But not only that; it necessarily introduces into the clause an idea which is opposed to the idea conveyed by the word "running." Namely, the idea that whether the ship was "running," that is, in active employment or use, or whether she was laid up either at anchor or in the dock or upon dry land, she was still within the words of the policy. This I think is not interpreting the contract but enlarging it, making a contract not contemplated by the parties. I have not been able to appreciate the second interpretation given to this clause to which I have referred. It is a clause qualifying either the word "Baltic," or the word "steamer." It contemplates not engines, anchors, office furniture, etc. running, but a steamer running, nothing more, nothing less.
The third interpretation is. I think the correct one. It is an element of importance that this is a fire policy not a marine policy. Two elements much more important in a fire policy than in a marine policy are those of locality and mode of use. The risk of a thing being burned depends not so much upon the thing itself as upon its location and the uses to which it is put. A wooden building used for the manufacture of Dynamite in a crowded city surrounded by factories continually emitting sparks from their chimneys or smokestacks may be absolutely uninsurable. The same structure removed for farming purposes to the open prairie might be insured at an almost nominal sum. Now this is not a "time" policy. A time policy is a phrase used only in marine insurance to distinguish it from a voyage policy. IT in no material respect differs from a policy upon a building or upon anything else capable of insurance against fire. Neither is it a policy insuring the subject matter from one definite period to another. It is rather a policy insuring it during such periods within two defined points of time as she may happen to come within the description and terms of the risk. In the present case she is insured, first, whilst running upon the inland lakes, rivers and canals during the season of navigation, and secondly, whilst she is laid up in a place of safety during winter months (removed) from any extra-hazardous building. There may be within the year many periods, longer or shorter, in which she is not covered at all. She may during the season of navigation be running on the high seas. Whilst so occupied she is not insured. So likewise during the winter months she may be running either on the high seas or upon the unfrozen waters of inland lakes, or at the City of Quebec engaged as a ferry from one side of the St. Lawrence to the other. Still she is not insured. I do not know and it is not material to determine to what extent the element of locality influenced the insurance companies in making these policies. I do not know whether navigation upon salt water is carried on at a greater risk than on fresh water or why the operations of this steamer were confined to the latte, but admitting that the parties in limiting the operations of the vessel to inland waters had in view the prohibition of navigation in ocean waters, it is perfectly clear that they had also in contemplation two distinct classes of risk, namely, the risk of fire whilst she was in actual use during the season of navigation and likewise the risk of fire whilst she was not in use but laid up in a place of safety during the winter months. The mode of use in both cases was material to the risk. In the summer months no special provision was made for her safety. Then she would be running. She would have her master and crew; she would have her life saving and fire saving apparatus; she would be under constant supervision and the danger of fire would be reduced to a minimum. In the winter months, however, she must be laid up. She may be laid up anywhere, whether in an inland port or an ocean port, but wherever laid up it must be in a place of safety and removed from and extra hazardous building. Looking at the whole clause it seems to me that the words 'running during the season of navigation' are mainly used in contrast to the words "laid up during the winter months." She is only covered by the clause whilst during the season of navigation she is running and whilst during the winter months she is laid up in a place of safety. This, it seems to me, is the true construction of the clause. It gives a natural and reasonable meaning to each of its words and it does not necessitate as the first interpretation does the insertion of the additional stipulation to which I have referred in order to give effect to it. If the view I take is incorrect and the first interpretation is the correct one; if it is not necessary hat during the season of navigation the vessel should be in actual use; if all that was contemplated by the parties was that during the season the vessel should exist in situ whether running or laid u. then she might be laid up anywhere, whiter in a place of safety or no; she might be anchored or even let run adrift upon the open lakes; she might be moored or hauled up high and dry in immediate proximity to any factory or building no matter how dangerous such proximity might be. Surely, as I view it, this consideration alone shows the untenable character of he ground upon which the judgement below is based.
One other point remains. It is contended that the stipulation contained in the words "whilst running, "&c., is a condition within the meaning of the Ontario Insurance Act. and inasmuch as it varies from or is in addition to the conditions by that Act made statutory, the policy should comply with section 115 of the Act which provides that such variations or additions should be printed in conspicuous type and in ink of different colour. So far as this point is concerned I entirely agree with the view taken by the learned Chief Justice of the Court of Appeal and Mr. Justice Osler. The stipulation in question is in no sense a condition but rather a description of he subject matter insured. It is descriptive of and has reference solely to the risk covered by the policy and not to the happening of an event which by the stature, therefore, does not apply.
On the whole I am of the opinion that the appeal should be allowed and the action dismissed; all costs to follow in the usual course.
      Appeal allowed with costs*

Solicitors for the appellant: Beatty, Blackstock, Nesbitt, Chadwick & Riddell

Solicitors for the respondent: McCarthy, Osler, Hoskin & Creeleman.


*Leave to appeal from the judgement to the Judicial Committee of the Privy Council has been refused.


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