56 F. 159 | S.D.N.Y. | 1893
The libel is filed to recover under a policy of insurance issued by the respondent on the 14th day of
“To fco confined to the general freight "business in the navigation of the rivers and canals, of the state of New York, the port, bay, and harbor of the city of New York, not outside of the Narrows. * * * Warranted not to go on the East river beyond the southwesterly end of Blackwell’s island. * * * With liberty to use the Harlem river and Port Morris.”
These provisions were followed by a clause specially stamped in the policy, in the following words:
“Lay-up clause waived, but during the period named therein confined to the port, bay, and harbor of New York, as described, both the North and East rivers, and the adjacent inland waters of New Jersey.”
The place where the canal boat sustained the loss by sea perils, was not within the port, bay or harbor of Mew York, nor within any of the limits described in the policy. The libel charges that the policy was designed to cover navigation in Long Island sound, and that when the premium was paid, the libelant, in answer to inquiries, was assured by respondent that it did cover navigation in the sound; and that, relying upon these representations, the policy was accepted and the premium paid; that the first intimation libelant ever liad that the policy did not cover the Sound was after the loss, when respondent refused to acknowledge any liability, or to attend to the survey of the damage. The libel thereupon alleges that the above statement was falsely and fraudulently made; that the libelant has duly complied with the conditions of the policy, and asks damages of the respondent in the amount of the loss.
The exceptions to the libel for lack of jurisdiction of the cause of action stated in the libel must be sustained. The libel does not in terms seek to reform the policy. If it did, that could not be done, in this court, but only by a court of equity, upon a bill filed for that purpose. Of such an action this court would have no jurisdiction. Andrews v. Insurance Co., 3 Mason, 6, 16. The present action cannot be sustained upon the terms of the policy itself, because the loss occurred outside of the express limits of the policy. The complaint is, in fact, an action for false and fraudulent representations, by which the libelant was induced to accept the policy, supposing that he was insured for the Sound, when he was not. Such an action is not upon the policy itself, but upon the negotiations leading to it. It is not brought like The Electron, 48 Fed. Rep. 689, for any misrepresentations in ihe policy, or for damages in the execution of the policy. The representations here are no part of the contract, but outside of it, and anterior, or preliminary to the contract, and as such not properly maritime. Marquardt v. French, 53 Fed. Rep. 603; The Eli Whitney, 1 Blatchf. 360; The Eclipse, 135 U. S. 599, 10 Sup. Ct. Rep. 873. As a tort, the case is not one of marine tort, because not arising upon the water, or in course of navigation. The exceptions are, therefore, sustained, and the libel must be dismissed; but, as the court has no jurisdiction, without costs.
