30 L. ed. 501, 7 Sup. Ct. Rep. 336; Berton v. Tietjen & L. Dry Dock Co. [D. C.] 219 Fed. 763, 774; The Mac, L. R. 7 Prob. Div. 126, 51 L. J. Prob. N. S. 81, 46 L. T. N. S. 907, 5 Asp. Mar. L. Cas. 555; The Mudlark, L. R. [1911] Prob. 116, 80 L. J. Prob. N. S. 117, 27 Times L. R. 385; The Whitton, L. R. [1896] Prob. 42, 57, 65 L. J. Prob. N. S. 17, 73 L. T. N. S. 698, 44 Week. Rep. 263, 8 Asp. Mar. L. Cas. 110, affirmed in [1897; H. L.] A. C. 337, 66 L. J. Prob. N. S. 99, 76 L. T. N. S. 663). A hydro-aeroplane, while in the air, is not subject to the admiralty (The Crawford Bros. [D. C.] 215 Fed. 269), or so, at least, we may assume, because it is not then in navigable waters, and navigability is the test of admiralty jurisdiction. A hydro-aeroplane, while afloat upon waters capable of navigation, is subject to the admiralty, because location and function stamp it as a means of water transportation. Such a plane is, indeed, two things-a sea plane and an aeroplane. To the extent that it is the latter, it is not a vessel, for the medium through which it travels is the air. The Crawford Bros. supra. To the extent that it is the former, it is a vessel, for the medium through which it travels is the wa

If a sea plane, incapable of flight, breaks its moorings and causes injury to man or ship, there will be a remedy against the offending res. If, moving upon the water, it becomes disabled, and is rescued on the high seas by a ship, it will be subject to a lien for salvage. We think the jurisdiction of the admiralty is not less where the structure found afloat is sea plane and aeroplane combined. It is true that the primary function is then movement in the air, and that the function of movement in the water is auxiliary and secondary. That is, indeed, a reason why the jurisdiction of the admiralty should be excluded when the activities proper to the primary function are the occasion of the mischief. It is no reason for the exclusion of jurisdiction when the

mischief is traceable to the function that is auxiliary and secondary. Collision does not cease to be collision and a peril of the sea because the structure is amphibious. We cannot even say that the chance that the peril will be encountered is so remote as to be negligible. The records of the Navy Department show that there have been times, in transatlantic flights, when planes, abandoning the air, moved for days upon the water. The cause might be lack of fuel or other disability. Even in the absence of such causes, there must always, for at least some space, be movement upon the water before there is ascent into the air. Jurisdiction cannot vary as the distance is short or longer. That would require us to say that the plane, by keeping to the water, could transform itself into a vessel, but would leave us helpless to define the point at which transformation would be suffered. From such embarrassments of definition there is but one avenue of escape. It is found in the conclusion that the plane is plane is a vessel, and hence within compensation the jurisdiction of injury by the admiralty, when

Workmen's

hydro-aeroplane.

it is in fulfilment of its functions as a traveler through water, and has put aside its functions and capacities as a traveler through air.

The conclusion to which we are thus led is in accordance with the practice of the government, so far as practice has developed. The Treasury Department of the United States requires sea planes or hydro-planes to be registered as vessels. The same department has held that in navigating the water they are subject to the rules of the road. It has also held them to be vessels within the meaning of the Tariff Law (Act Oct. 3, 1913, § 4-J, subds. 5 and 6 [U. S. Comp. Stat. §§ 5309, 5310, 2 Fed. Stat. Anno. 2d ed. p. 885]; Treasury Decision No. 36,156). Rulings not dissimilar have been made by the Department of Commerce. A libel against a hydroaeroplane has been filed in the

The order of the Appellate Division and the award of the Commis

sion should be reversed, and the claim dismissed, with costs against the Industrial Commission in the Appellate Division and in this court.

Hiscock, Ch. J., and Hogan, Pound, McLaughlin, Crane, and Andrews, JJ., concur.

The reported case (REINHARDT V. NEWPORT FLYING SERVICE CORP. ante, 1324) holds that an injury by a hydro-aeroplane while it was moored in navigable waters was by a vessel within the admiralty jurisdiction, and that, therefore, the injury could not be compensated for under a state workmen's compensation act. (See, in that connection, annotation in 11 A.L.R. 1155, and the annotation to Berry v. M. F. Donovan & Sons, A.L.R. The court calls attention to the fact that the government departments require sea planes or hydro-aeroplanes to be registered as vessels, and hold that in navigating the water they are subject to the rules of the road. It was also stated that a hydro-aeroplane is two things

—.)

-a sea plane, as which it is the subject of admiralty jurisdiction, and an aeroplane, as which it does not come within such jurisdiction, since it is not a vessel. This appears to be the first case which has considered the question of the jurisdiction of admiralty over a combined air and water craft. One case has been disclosed, however, which has passed upon the question as to an aircraft.

In the case just referred to (The Crawford Bros. (1914) 215 Fed. 269) it was decided that admiralty had no jurisdiction of a libel in rem for repairs to an aeroplane. The court here said: "This is a libel in rem for repairs to an aeroplane. The matter is before the court upon exceptions by an intervening libellant, asserting a salvage claim for having salved the aeroplane after it had fallen into the waters of Commencement bay, the same being navigable

waters of Puget Sound,-while on a flight over said bay. The intervening libellant expressly avers that he does not wish to enforce his maritime lien for salvage. The exception is that the court has no jurisdiction in the matter. It is conceded, by counsel for libellant, that there is no precedent for this proceeding, but it is contended that, as jurisdiction in admiralty has, in the past, been extended to meet the needs of commerce and the questions arising therefrom, in the face of this new need, the jurisdiction should grapple with the questions arising out of navigation of the air, and not await legislative action. Familiar instances of the growth or evolution of the admiralty jurisdiction are pointed out: The adoption of navigability as the test of jurisdiction, rather than confining it to the ebb and flow of the tide; its extension to include steam vessels upon their advent, holding floating elevators, dry docks, rafts, submarine vessels subject to the jurisdiction; the giving of a maritime lien for personal injuries, as well as one to the stevedore. The progress thus shown, it is asserted, warrants the court in assuming jurisdiction of this cause. In 1909 an International Juridic Committee on Aviation was organized at Paris. "The committee on January 16, 1910, decided upon the outline of a legal Code of the Air, which has since been in course of elaboration, and progress upon which is regularly reported in the committee's review. The committee itself consists of jurists, lawyers, and legal students in France and French colonies, several of the states of

Germany, Austria-Hungary, Belgium, Brazil, Denmark, Spain, United States, Italy, Monaco, Netherlands, Argentina, Russia, Switzerland, Turkey, Sweden, Great Britain, Scotland, Canada, and Egypt. The national membership forms a national committee acting through a representative executive committee in Paris. This executive committee makes general studies upon a point of law, and issues its preliminary decisions to national committees, which report back their opinions, the whole of which are harmonized SO far as possible. The text decided upon in this way is definitely passed at annual congresses, which have been held at Paris in 1911, at Geneva in 1912, and at Frankfort in 1913. Law Notes, April, 1914, Page 5. An examination of the text of the Code decided upon by the committee shows a striking similarity between its provisions, in many respects, and the rules now applicable to water craft. This appears in the rules as to the nationality and registration of aircraft, flag regulations, documents, the law applicable in different jurisdictions and beyond the limits of any terrestrial jurisdiction, the requirements as to the log book, and the aerial rules of the road, although aircraft would not all, necessarily, move in the same plane. While the cómmittee has gone into much detail, and the analogy between air and water craft is strikingly manifested in the proposed Code, it has not yet. become law. Undoubtedly, it would be important to consider its provisions in determining what was reason

able and proper in a cause involving

aircraft in a common-law action. It

or

is noticeable that while recognizing the necessity, so far, the proposed Code contains no adaptation modification of the terrestrial common or statute law, or any application or modification of its principles, which will undoubtedly be necessary in view of the passage of such craft

over such jurisdictions, and their manifold relations thereto. In a case of tort, where the jurisdiction is fixed by the locality of the tort, the Supreme Court said: 'A maritime lien can only exist upon movable things engaged in navigation, or upon things which are the subjects of commerce on the high seas or navigable waters. It may arise with reference to vessels, steamers, and rafts, and upon goods and merchandise carried by them. But it cannot arise upon anything which is fixed and immovable, like a wharf, a bridge, or real estate of any kind. Though bridges and wharves may aid commerce by facilitating intercourse on land, or the discharge of cargoes, they are not in any sense the subjects of maritime lien.' The Rock Island Bridge (1867) 6 Wall. (U. S.) 213, 216, 18 L. ed. 753, 755. In view of the novelty and complexity of the questions that must, necessarily arise out of this new engine of transportation and commerce, it appears to the court that, in the absence of legislation conferring jurisdiction, none would obtain in this court, and that questions such as those raised by the libellant must be relegated to the common-law courts, courts of general jurisdiction. The action of the juridic committee on aviation manifests a recognition of the fact that legislation is necessary for the regulation of aircraft. They are neither of the land nor sea, and not being of the sea, or restricted in their activities to navigable waters, they are not maritime."

As to power of Congress to permit application of state workmen's compensation laws to injuries within admiralty jurisdiction, see annotation

in 11 A.L.R. 1155.

ance policy should not be indulged, where there is no real ambiguity. [See 14 R. C. L. 931, 932.]

Statement by Preston, J.:

Action at law to recover upon an accident insurance policy. Trial to a jury. At the close of plaintiff's evidence, the trial court sustained defendant's motion for a directed verdict in his favor. Plaintiff appeals.

Mr. E. C. Weber, for appellant:

The policy of insurance should be most favorably construed in favor of the plaintiff.

Meyer v. Fidelity & C. Co. 96 Iowa, 378, 59 Am. St. Rep. 374, 65 N. W. 328; Kirkpatrick v. Etna L. Ins. Co. 141 Iowa, 74, 22 L.R.A.(N.S.) 1255, 117 N. W. 1111; Simpkins v. Hawkeye Commercial Men's Asso. 148 Iowa, 551, 126 N. W. 192.

An insurance policy is to be interpreted according to its true character and purpose, and in the sense in which the insured had reason to suppose it was understood.

Sneck v. Travelers' Ins. Co. 88 Hun, 94, 34 N. Y. Supp. 545; Lord v. American Mut. Acci. Asso. 89 Wis. 19, 26 L.R.A. 741, 46 Am. St. Rep. 815, 61 N. W. 293.

Severance "at or above the ankle" should be construed according to the ordinary and fair meaning of the words used, and not in an anatomical or technical sense.

Sheanon v. Pacific Mut. L. Ins. Co. 18 A.L.R.-84.

77 Wis. 618, 9 L.R.A. 685, 20 Am. St. Rep. 151, 46 N. W. 799; 1 C. J. § 8, p. 417.

The provision in the policy, "loss, as used with reference to hand or foot, means complete severance at or above the wrist or ankle," is reasonably susceptible to two constructions, and the one most favorable to the insured should be adopted.

Peterson v. Modern Brotherhood, 125 Iowa, 563, 67 L.R.A. 631, 101 N. W. 289; Young v. Travelers Ins. Co. 80 Me. 244, 13 Atl: 896.

It was a question for the jury whether the amputation (or severance) was at or above the ankle.

Moore v. Ætna L. Ins. Co. 75 Or. 47, L.R.A.1915D, 264, 146 Pac. 151, Ann. Cas. 1917B, 1005; 1 C. J. 467; Beber v. Brotherhood of R. Trainmen, 75 Neb. 183, 121 Am. St. Rep. 782, 106 N. W. 168; Sheanon v. Pacific Mut. L. Ins. Co. supra.

Messrs. George R. Sanderson, J. M. C. Hamilton, Manton Maverick, and M. P. Cornelius, for appellee:

Where a policy of accident insurance promises payment for the loss of either foot, by complete severance at or above the ankle, there can be no recovery for loss of a foot where it appears through undisputed evidence that a substantial portion of the foot remains.

Wiest v. United States Health &

Acci. Ins. Co. 186 Mo. App. 22, 171 S. W. 570; Brotherhood of R. Trainmen v. Walsh, 89 Ohio St. 15, 103 N. E. 759; Continental Casualty Co. v. Bows, 72 Fla. 17, 72 So. 278; Hardin v. Continental Casualty Co. Tex. Civ. App. -, 195 S. W. 653; Peterson v. Modern Brotherhood, 125 Iowa, 562, 67 L.R.A. 631, 101 N. W. 289; Bingham v. Clubb, 42 Tex. Civ. App. 312, 95 S. W. 675.

Where the only promise to pay for the loss of a foot by a policy of accident insurance is a promise to pay for the loss of the foot by complete severance at or above the ankle, such a provision is valid. Where it is proved that a substantial portion of the foot below the ankle remains, the insured cannot recover and there is no occasion for the application of the doctrine of strict construction.

Mady v. Switchmen's Union, 116 Minn. 147, 133 N. W. 472; Stoner v. Yeomen of America, 160 Ill. App. 432; Newman v. Standard Acci. Ins. Co. 192 Mo. App. 159, 177 S. W. 803; Metropolitan Casualty Ins. Co. v. Shelby, 116 Miss. 278, 76 Sn. 839.

Before a court can consider the applicability of the doctrine of strict construction, it must first be sure that there is a real ambiguity as to the intention of the contracting parties. If a consideration of the entire instrument indicates that there is no ambiguity, then no question of construction can arise. Courts should not and will not conjure up a fanciful uncertainty by torturing the plain words of a policy, and, having by this means evolved an imaginary ambiguity, construe the same against the insurance company.

Mitchell V. German Commercial Acci. Co. 179 Mo. App. 1, 161 S. W. 362; McKinney v. General Acci. F. & L. Assur. Co. 128 C. C. A. 449, 211 Fed. 951; Blume v. Pittsburgh Life & T. Co. 183 Ill. App. 295; John Church Co. v. Etna Indemnity Co. 13 Ga. App. 826, 80 S. E. 1093; Lesher v. United States Fidelity & G. Co. 239 Ill. 502, 88 N. E. 208; Imperial F. Ins. Co. v. Coos County, 151 U. S. 452, 38 L. ed. 231, 14 Sup. Ct. Rep. 379; Standard Life & Acci. Ins. Co. v. McNulty, 85 C. C. A. 22, 157 Fed. 224; Delaware Ins. Co. v. Greer, 61 L.R.A. 137, 57 C. C. A. 188, 120 Fed. 916; Perry v. Provident L. Ins. & Invest. Co. 99 Mass. 162; Perry v. Standard Life & Acci. Ins. Co. 59 Tex. Civ. App. 50, 125 S. W. 374; Continental Casualty Co. v. Ogburn, 175

Ala. 357, 57 So. 852, Ann. Cas. 1914D, 377; Continental Casualty Co. v. Wade, 101 Tex. 102, 105 S. W. 35.

While it is true that a policy of insurance should be construed favorably to the insured in cases of doubt or ambiguity, this rule ought not to be permitted to have the effect to make a plain agreement ambiguous, and then to interpret it in favor of the insured.

Tigg v. Register Life & Annuity Ins. Co. 152 Iowa, 723, 133 N. W. 322; Currie v. Continental Casualty Co. 147 Iowa, 281, 140 Am. St. Rep. 300, 126 N. W. 164; Peterson V. Modern Brotherhood, 125 Iowa, 562, 67 L.R.A. 631, 101 N. W. 289; Hall v. Hardaker, 61 Fla. 267, 55 So. 977; Southern Home Ins. Co. v. Putnal, 57 Fla. 199, 49 So. 922.

By the policy defendant promised to pay plaintiff "indemnity for loss of life, limb, limbs, sight, or time, resulting from a personal bodily injury, all in the manner and to the extent hereinafter provided.

For loss of either foot, the principal sum of $1,000." A later provision in the policy reads: ""Loss,' above used with reference to hand or foot, means complete severance at or above the wrist or ankle." The petition is in two counts. In the first plaintiff claimed that he received an