261 F. 777 | 2d Cir. | 1919
The insured barge was always waterborne, and after becoming what the witnesses call “water-logged” was navigated over 80 miles, and then fastened to a wharf. Whether such a vessel can ever be said to have sunk, even within the meaning of a policy of insurance drawn and tendered by an insurer, is a question not requiring decision herein, because liability under this policy does not depend on the mere fact of a sinking (London Assurance v. Companhia de Moagens, 167 U. S. 149, 17 Sup. Ct. 785, 42 L. Ed. 113), but arises only if the particular average loss in suit was “caused by stranding (or) sinking.” On the facts recited, and assuming that a vessel of such buoyancy that she cannot go lower than “decks to,” is “sunk” when in that condition, the loss here claimed was not caused by such sinking but by a capsizing, which (so far as this record shows) was not the result of, nor caused by, the water-logging.
There never was a “stranding,” for, even if the small engine that remained fast to the capsized barge did at one time touch sand, it was “touch and go” only, and therefore no stranding, under the London Assurance Case, supra.
The decree is affirmed, with costs.
