122 F. 448 | 2d Cir. | 1903
The controlling questions which have been argued upon this appeal are two: (1) Whether the action was not barred by failure to prosecute the claim within a year, pursuant to the condition of the policy; and (2) whether there was a total loss, actual or constructive, of the insured cargo. Upon the first question the members of this court are unanimous, and concur in the decision of the court below for the reasons stated in the opinion of Judge Brown. Upon the second question a majority of the court are of the opinion that there was a total loss, but, while agreeing that the decree should be affirmed, do not agree upon the reasons therefor; and one member of the court is of the opinion that there was not a total loss, and that the decree should be reversed and modified.
It is unnecessary to add anything to the opinion of the court below in -respect to the first question, and any statement of our views in respect to the second question would not be authoritative. We therefore deem it proper to affirm the decree, without an opinion.
1. Conditions in insurance policy as to time for bringing suit, see notes to Steel v. Phœnix Ins. Co., 2 C. C. A. 473; Rogers v. Home Ins. Co., 35 C. C. A. 404.
