Hills v. Rhenish Westfalian Lloyd Transport Insurance

Brady, J.: The policy on which this action was brought is an open one, and the question presented arises upon the written clauses. The defendant contended that the words “ including all risks of lighterage ” taken in connection with the clause that “ dried fruits and other merchandise by steamer to be insured free from particular average unless the vessel be stranded, sunk, burned or in collision,” make the insurance secured one on fifty casks of prunes per steamship Wieland from Hamburg to New York, including lighter-age risk, warranted free from particular average unless the vessel be stranded, etc., and insists that if the insurance per steamer is against total loss only, the goods while on the lighters are only insured to the same extent. This amalgamation of the two clauses does violence to the distinction between the risks assumed as expressed in the policy by its terms and as clearly intended. The underwriters undoubtedly knew what risks they proposed to take, particularly as the obligations were written in the policy and had an especial emphasis therefore. It will have been perceived that the policy makes the insurance from places in Europe to Atlantic ports in the United States direct or by port or ports, with privilege of transhipment for steamers, sailing vessels and other conveyances “ including all risks of lighterage.” There is no suggestion of partial or total loss or general or particular average as to lighters. Indeed the language relating to them is as broad and comprehensive as it can be “ all risks of lighterage.” The provision subsequently made for dried fruits does not relate to lighters in terms, but to such fruits and other merchandise by steamer, to be insured free from particular [556] average. The result of a due consideration of the provisions relative to each other therefore is that the words “all risks of lighterage ” mean any loss partial or total, by lighterage, while the loss by steamer is limited and to be free from particular average. This view gives to the language employed its ordinary meaning and carries out the familiar principle that in construing policies of insurance the words used must be taken in their ordinary sense as commonly used and understood, and if the sense in which they were used is uncertain, as they are found in a contract prepared and executed by the insurer they should be construed most favorably to the insured. (Herman v. Merchants Ins. Co., 81 N. Y., 184, 188.) This construction suggested is not however without authority to sustain it. In Goix v. Knox (1 Johns. Cas., 337) the words “against all risks” were held to cover all losses except those occasioned by the 'fraud of the insured. And that case was followed by Skidmore v. Desdoity (2 id., 77) again expressing the effect of such words. In Anthony v. Ætna Insurance Company (1 Abb. [U. S.] Rep, 343) it was said that the words “ usual risk of lighterage at Ontonagon,” which was in addition to the ordinary lake risks and perils were sufficient to authorize a recovery although it was not considered necessary for the plaintiff’s success to invoke their power. It is true that the case of Goix v. Knox was reversed (see Goix v. Low, 2 Johns. Cas., 480), but for a reason which did not in any way affect the proposition enunciated predicate of the effect of the words “ against all risks.” (See, also, Lane v. Nixon L. R., 1 C. P., 412.) The cases of Morean v. United States Insurance Company (1 Wheat., 219) and Wadsworth v. Pacific Insurance Company (4 Wend., 33) cited by the defendants’ counsel, are not in any respect in conflict with the rule declared. Both of them relate to memorandum articles as to which the insurer agreed to pay for a total loss only, and which here is subordinate to the written part in regard to lighterage risks. And Chadsey v. Guion (97 N. Y., 333) was disposed of on the ground that the insurance secured was upon a proper construction of the policy on the whole shipment, and therefore a part of it having been delivered, the remainder was not covered by its terms. The defendants’ contention cannot, for these reasons be adopted. The allegations in the complaint as to the loss of goods and notice [557] of sueli loss and as to the demand, are regarded as sufficient for the purpose for which they were inserted. (Code, § 533.) It may be. as suggested, that the demand made upon the defendants within the thirty days allowed them by the policy for payment was premature, but it is cured by the allegations of repeated requests subsequently made in accordance with the terms of the policy, and the fact that this action was not commenced until more than a year had expired from the time the loss occurred. Whether the plaintiffs can recover for a total loss must depend upon the fact-s established upon the trial. The allegation in the complaint relative to that subject is sufficient to put the defendants to their answer. Indeed, it must be said that the only question of serious import here, if any exist, springs out of the phrase “ including all risks of lighterage.” The others depend upon proof to be made. The judgment should be affirmed, with costs, with liberty to the defendants, however, to appear and answer on payment of costs. Daniels, J., concurred ; Davis, P. J., concurred in the result. Judgment affirmed, with costs, with liberty to the defendants to answer on payment of costs.