Cary v. Home Insurance

H. T. Kellogg, J.: This is an action to recover upon a marine policy of insurance for injuries to a vessel occasioned by its capsizing when moored to a wharf. The vessel was a barge, one hundred and fifteen feet over all by thirty-four feet beam. A cargo weighing six hundred tons was loaded upon its decks at Jersey City. The cargo consisted of steel bars, kegs of nails, nuts and hoop irons. The steel bars, which were round, were placed upon the decks running fore and aft. The rest of the cargo was piled on top of the bars. The barge was towed to pier No. .1, Bush Terminal, Brooklyn, where she was tied up alongside of a scow which was tied up alongside of a steamship. Men came aboard to unload a carload of her cargo for which [124] a bill of lading was held. In order to get at the carload thus billed it was necessary to lift off forty or fifty tons of iron which was lying on top thereof. This was moved from where it was piled thirty or forty feet towards the bow, but no part whatever of the cargo was then or thereafter unloaded. Subsequently the vessel was moved across the basin to pier No. 2, where it was tied up. That evening the captain went ashore to get his supper at a restaurant more than a mile away, and was gone for two hours. When he left the ba,rge had some water in its hold and was fisted to starboard. When he returned it was fisting still more and had ten inches of water in its hold. The captain pumped her out and was' on or about the barge for about an hour and a half. At the end of this period he heard the cargo rolling across the decks. He jumped ashore and the cargo rolled over the starboard gunwale into the water, thereby capsizing the vessel and causing the injuries complained of. The policy insured the vessel “ against the adventures and perils of the harbors, bays, sounds, seas, rivers and. other waters.” It did not insure against “ rottenness, inherent defects, and other unseaworthiness.” In Berwind, v. Greenwich Ins. Co. (114 N. Y. 235) it was said that “ in the policy in suit loss from unseaworthiness is among the excepted risks, and it was, therefore, incumbent upon the plaintiffs to show that the loss arose from some of the perils covered by the policy; and to make out their case some evidence was necessary from which the jury could infer that the sudden sinking of the boat was not due to defective structure or condition.” In Van Wickle v. Mechanics, etc., Ins. Co. (97 N. Y. 350) it was said: “It cannot be said that a vessel, which, after a voyage of two or three hours, without encountering any danger or peril, sinks and disappears, was sound and seaworthy.” There was no evidence in this case indicating that this vessel encountered any peril through grounding, collision, high waves or winds. The only proof that any thing other than inherent unseaworthiness caused it to capsize was that given in relation to the shifting of its cargo. The policy provided that “ want of ordinary care and skill in loading and stowing the cargo of said vessel ” was an excepted risk. The forty tons of iron which were shifted were not moved so that [125] they might be unloaded, but to uncover other iron for that purpose, and even that was not unloaded. The shifting done was, therefore, performed in the course of “ loading and stowing the cargo of said vessel,” and was itself an excepted risk. Consequently, the case was devoid of proof that perils of the sea insured against caused the vessel to capsize. Furthermore, the insured had expressly warranted that the vessel should " at all times have a competent watchman on board.” This vessel had no watchman on board for more than two hours while its captain was at supper. The authorities definitely hold that such a warranty constitutes a condition precedent with which an insured must strictly comply in order to have a recovery. (First National Bank of Ballston Spa v. Insurance Co. of N. A., 50 N. Y. 45; Ripley v. Ætna Ins. Co., 30 id. 136.) As the proof that the warranty was broken is undisputed it is clear that no cause of action arose in favor of the plaintiff. For all these reasons the dismissal of the complaint was proper. The judgment should be affirmed. Woodward, Cochrane and Van Kirk, JJ., concur; John M. Kellogg, P. J., dissents, with an opinion.