Neidlinger v. Insurance Co. of North America

11 F. 514 | E.D.N.Y | 1880

Blatchford, C. J.

The libellants rest their case on a single point. They contend that, for the purpose of construing the policy, the barley is to be treated as if it had been shipped in bulk, and not in sacks; the insurance being of so many bushels, not divided and not specified as being in sacks, and there being no evidence that the respondent knew that the barley was shipped in sacks. The answer to this view is that the policy contains a provision that, in cases of partial loss by sea damage to any merchandise insured under it, the loss shall, so far as practicable, be ascertained by a separation and sale of only the damaged portion of the contents of the packages, and not otherwise. This clause is to be applied so as, in good faith, to give the respondent the benefit of the contract exempting it from liability for damage by dampness unless through actual contact of sea water with the articles damaged, occasioned by sea perils. There must be a separation of, at least, sacks with which sea water has’ come in contact. If there is to be a separation of the damaged parts of packages, there must be a separation of sacks, some part of the contents of which has been damaged by actual contact with salt water. If the barley was in fact shipped in packages as sacks, the respondent is entitled to the benefit of that actual fact in ascertaining the loss.

According to the certificates, the loss is to be adjusted in conformity with the conditions of the policy. Although the certificates specify only so many bushels of barley, yet the policy substantially provides that, if any merchandise insured under it is in packages, those with which sea water has come in actual contact shall be separated. On this principle, and assuming that all the grain in any sack which has come in actual contact with sea water is to be regarded as having come in actual contact with sea water, the damage is not 20 per cent, in respect of all such grain. The case is one not different in principle from what it would be if the certificates had specified so many sacks of barley, and had valued the contents of each sack.

There is no liability for damage from vapor arising from the sea water which has come in contact with one sack, so far as such vapor or the dampness thereof affects the barley in another sack, with which other sack sea water has not otherwise come in contact. Cary v. Boylston Ins. Co. 107 Mass. 140. To hold that the contact of such vapor is the actual contact of sea water, is to fritter away the good sense of the provision, which was introduced after decisions in such cases as Baker v. Manuf'rs Ins. Co. 12 Gray, 603. The view of the libellants would require the same decision under the actual contact clause as without it. I do not understand the case of Wood-ruff v. Commercial Ins. Co. 2 Hilton, 130, as being an authority for the libellants. The observations of the district judge in his decision in this ease, as to that case, seem to be well founded.

If all the damage in this case had been from vapor arising from sea water which had found its way into the ship, without any other actual contact of such sea water with any barley, it might as well then, as now, have been contended that the contact of such vapor1 was the actual contact of sea water. But this would take away all force from the actual contact clause.

The libel must be dismissed, with costs to the respondent in the district court and in this court.