Lambert v. F. Wm. Gertzen Co.

112 Misc. 198

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 15, 1920
• Status: Published

Opinion

Mullan, J.

The plaintiff, desiring to send a package of goods to a person in Germany, delivered it, in November, 1919, to the defendant, a forwarding agent, for shipment. The latter shipped the package on the steamer Kerwood, which, at some time prior to December 8, 1919, was sunk near the Netherlands coast by coming into contact with a floating mine. The defendant had caused the plaintiff to be insured against ordinary marine hazards. The action is brought upon the theory that the defendant should have had the shipment covered against war risks. It seems to be in effect conceded, for the purpose of this appeal, that the policy obtained by the defendant did not cover against loss because of floating mines, whether or not that is properly to be deemed a war risk. The most that can be said of plaintiff’s version of the shipping agreement was that defendant was to do all customary things in connection with the shipment to insure the shipper’s reasonable protection. The defendant, clearly a qualified expert, testified that after the armistice shipping agents ceased to insure against war risks, and there was no attempt to rebut or impugn his testimony, which is convincing on its face. It follows, we think, that the defendant did all that he was required to do.

Judgment reversed, with thirty dollars costs, and complaint dismissed on the merits, with costs.

Bijur and Wagner, JJ., concur.

Judgment reversed, with thirty dollars custse