The opinion of the court was delivered by: Perry, District Judge.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This action was tried by the court without a jury. The court
has heard and considered all of the evidence adduced and heard
argument of counsel. It has further considered the proposed
findings of fact and conclusions of law submitted on behalf of
each of the three parties by their counsel and the memoranda
of the various counsel. The court, being fully advised in the
premises, hereby makes the following as its findings of fact
and conclusions of law herein:
1. Plaintiff, Illinois Produce International, Inc.
("Illinois Produce"), is a corporation duly organized and
existing under the laws of the State of Illinois with its
principal place of business in that state; defendant and third
party plaintiff, Reliance Insurance Company ("Reliance") is a
citizen of the State of Pennsylvania, and defendant and third
party defendant, The Flying Tiger Line, Inc. ("Flying Tiger")
is a California corporation.
2. The amount in controversy, excluding interest and costs,
3. Plaintiff Illinois Produce had purchased 529 live
breeding hogs for shipment from Chicago to a farm near Saigon,
South Viet Nam. In late 1971 it proceeded to arrange for the
shipment via Flying Tiger aircraft and to purchase a certain
policy of insurance from Reliance.
4. Two of the hogs were dead upon arrival in Chicago for
shipment; and the remaining 527 were loaded for shipment on
January 8, 1972 at Chicago. On January 10, 1972 the shipment
of hogs arrived at the airport in Saigon. They were trucked to
a farm approximately 10 miles from the airport and there a
count showed 104 hogs were dead.
5. A claim for loss was presented by Illinois Produce to
Reliance and denied. Illinois Produce then brought this action
against Reliance to recover for an alleged breach of the
insurance contract; and Reliance filed a third-party action
against Flying Tiger and Kriegsman Transfer Co. ("Kriegsman"),
seeking indemnity if judgment is entered against Reliance.
Later Flying Tiger was added as a principal defendant by
plaintiff's amended complaint. On motion of Reliance,
Kriegsman was dismissed as a third-party defendant herein
6. In arranging for the shipment, Illinois Produce, on or
about December 20, 1971, entered into a written contract with
Flying Tiger, entitled Agreement of Airplane Charter, which
Agreement was numbered 5308. [Plaintiff's Exhibit 2] Said
contract was signed by both parties to be charged who were
both corporations dealing at arm's length and had constructive
knowledge of the provisions of the aforesaid contract. The
contract contained the following language, in part:
"9.(a) The Carrier shall not be liable for any
loss, damage, delay or other result not
caused by its negligence.
"(b) In addition to and without limiting the
generality of paragraph 9(a), the Carrier
shall not be liable for any loss, damage,
delay or other result caused by:
"(3) The nature of the shipment, or any
defect, characteristic or inherent vice
"(8) The death, injury or escape of live
7. In late December 1971, Illinois Produce purchased a
policy of insurance from Reliance and Reliance issued its
policy number CP48090 on December 30, 1971 covering the
shipment of the hogs in accordance with the terms and
conditions of said policy. The stipulated premium of $4,200.00
was duly paid by plaintiff. By the policy terms, Reliance
insured plaintiff against loss as defined and limited to 530
live hogs valued at $120,000. The policy [defendant Reliance's
Exhibit 2] contained the following applicable language as a
part of the printed form:
"The RELIANCE INSURANCE COMPANY, in
consideration of the payment of a premium as
agreed, does by this Policy insure, lost or not
lost ILLINOIS PRODUCE INTERNATIONAL . . .
In the sum of One Hundred and Twenty Thousand and
00/100 ($120,000.00) . . .
Upon Five Hundred Thirty (530) head of live hogs.
Valued at sum insured . . .
Laden on: Flying Tiger ...