Plymouth Rubber Co. v. Insurance Co. of North America, Inc.

465 N.E.2d 1234, 18 Mass. App. Ct. 364, 1985 A.M.C. 2219, 1984 Mass. App. LEXIS 1533
CourtMassachusetts Appeals Court
DecidedJuly 17, 1984
StatusPublished
Cited by14 cases

This text of 465 N.E.2d 1234 (Plymouth Rubber Co. v. Insurance Co. of North America, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Plymouth Rubber Co. v. Insurance Co. of North America, Inc., 465 N.E.2d 1234, 18 Mass. App. Ct. 364, 1985 A.M.C. 2219, 1984 Mass. App. LEXIS 1533 (Mass. Ct. App. 1984).

Opinion

Kass, J.

Plymouth Rubber Co., Inc. (Plymouth Rubber), seeks to recover under a marine insurance policy issued by Insurance Company of North America, Inc. (INA), for cargo damage resulting from rough handling and improper storage on the dock at Khorramshahr, Iran. We have the following facts from the pleadings, affidavits, and a deposition filed in connection with a motion for summary judgment.

[365]*365In May of 1973, Clarence H. Tenney, then Plymouth Rubber’s quality control agent, travelled to the port of Khorram-shahr to collect samples of pipewrapping material and adhesive primer which Plymouth had shipped there. Tenney’s mission was stimulated by rejection of the goods as nonconforming by Plymouth Rubber’s customer, United Iranian Oil Company. On the basis of Tenney’s observation that Plymouth Rubber’s goods were stored outdoors at the dock and that some of the packaging was damaged from exposure to the weather, Plymouth Rubber took out a “Special Marine Policy” of insurance. The INA policy, obtained through Fred S. James & Co. of New England, Inc. (James), covered Plymouth Rubber’s “Pipe wrap, PVC tape, [and] chemicals . . . [w]hile at: Dockside Khoranshak [sic], Iran.” The policy, which was effective May 11, 1973, did not cover a vessel.

On two subsequent trips to Iran in the spring and summer of 1974, Tenney observed that many of Plymouth Rubber’s goods, which remained stored outdoors, were damaged. Some PVC tapes had melted from exposure to the sun, drum tops had rusted, and there was evidence of water contamination. In addition, several rolls of pipe wrapping were cut, unwound, dirty or broken. During his visits, Tenney saw that other cargo at the port was handled roughly. He reported that the storage area was extremely congested, that cranes and forklift trucks were operated at speeds too fast for the crowded conditions, and that cargo was frequently dropped from cranes onto tall piles of goods which collapsed from the extra weight. Tenney felt that much of the damage to Plymouth Rubber’s goods, such as loose and flattened rolls and broken spools, resulted from such rough handling at dockside.

Plymouth Rubber brought an action against INA and James, seeking to recover from INA under the terms of the policy. In the alternative, i.e., if the policy did not cover the damage to the goods, Plymouth Rubber’s complaint charged James with failure to perform its contract to secure insurance for damage to the goods stored at Khorramshahr and, in consequence, with a violation of G. L. c. 93A, § 2(a). In addition, Plymouth [366]*366Rubber charged INA with James’ breach of contract under an agency theory and — it seems inevitably — with a violation of G. L. c. 93A, § 2(a).

A judge of the Superior Court granted INA’s motion for summary judgment on those counts of the complaint which alleged that INA was liable to Plymouth Rubber under the terms of the policy, and that INA had violated G. L. c. 93A. Plymouth Rubber waived the count which sought to bind INA, under an agency theory, for James’ breach of contract. Upon allowance of a motion under Mass.R.Civ.P. 54(b), 365 Mass. 821 (1974), the judgment in favor of INA became final and Plymouth Rubber appealed. Plymouth Rubber’s claims against James remain to be tried.

INA seeks to limit its liability under the policy to a standard clause in the insurance form, the “Shore Clause,” on the basis of typewritten language on the face of the contract which reads, “Coverage as per Shore Clause above” followed by a schedule of the amount of insurance for various time periods. Plymouth Rubber argues that the policy of insurance is not so limited and that INA must also be liable for damage falling within the “Perils Clause,” another standard clause in the insurance form. Although typewritten language in a contract normally controls if it is inconsistent with other printed language, Bluewaters, Inc. v. Boag, 320 F.2d 833, 835 n.4 (1st Cir. 1963), we need not decide if any inconsistency arises from the typewritten language in the instant case. The only clause in addition to the Shore Clause upon which Plymouth Rubber seizes is the Perils Clause, and we have no difficulty in deciding that the damage to Plymouth Rubber’s goods while dockside at Khorramshahr does not fall within the coverage of that clause.

The Perils Clause provides, “PERILS CLAUSE: Touching the adventures and perils which this Company is contented to bear, and takes upon itself, they are of the seas, fires, assailing thieves, jettisons, barratry of the master and mariners, and all other like perils, losses and misfortunes (illicit or contraband trade excepted in all cases), that have or shall come to the hurt, detriment or damage of the said goods and merchandise, or [367]*367any part thereof’ (emphasis supplied). To prevail on its theory that the damage to its cargo falls within the coverage of the Perils Clause, Plymouth Rubber must show that such damage resulted from “perils of the seas” or “other like perils.”

The Supreme Court has construed “perils of the seas” to include “losses from extraordinary occurrences only; such as stress of weather, winds and waves, lightning, tempests, rocks, [etc.] . . . and not those ordinary perils which every vessel must encounter.” Hazard v. New England Marine Ins. Co., 33 U.S. (8 Pet.) 557, 585 (1834) (emphasis supplied). Thus, in Hazard, the Supreme Court upheld an instruction to a jury that if damage to a vessel by worms was an ordinary occurrence in the Pacific Ocean, then damage of that kind was not covered under the Perils Clause. In Commercial Trading Co. v. Hartford Fire Ins. Co., 466 F.2d 1239, 1245 (5th Cir. 1972), misdelivery of the cargo was held not to come within the “other like perils” portion of the clause, since that phrase referred to perils “very similar to or very much like th[ose] enumerated [in the Perils Clause],” quoting from Feinberg v. Insurance Co. of No. America, 260 F.2d 523, 527 (1st Cir. 1958).

In the instant case, the damage to Plymouth Rubber’s goods while stored on land at Khorramshahr resulted neither from an extraordinary risk nor one “peculiarly associated with maritime voyages.” See Southport Fisheries, Inc. v. Saskatchewan Govt. Ins. Office, 161 F. Supp. 81 (E.D.N.C. 1958). 11 Rhodes, Couch’s Cyclopedia of Insurance Law § 43:87, at 67 (2d ed. rev. 1982). See also id. §§ 43:92-43:125. Underwriters’ Agency v. Sutherlin, 55 Ga. 266, 272 (1875), on which Plymouth Rubber relies to support its position that damage to the stored goods by rain should fall within the Perils Clause, is inapposite. The court in Sutherlin was faced with construction of the “perils of navigation” clause, which is broader than the “perils of the seas” clause. See Lipshitz v. New Zealand Ins. Co., 34 Ga. App. 825, 834 (1926).

Even in its extremity, the plaintiff in Commercial Trading Co. v. Harford Fire Ins. Co., 466 F. 2d at 1245, felt compelled, in order to make its case, to argue that the mishap it had suffered [368]

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Bluebook (online)
465 N.E.2d 1234, 18 Mass. App. Ct. 364, 1985 A.M.C. 2219, 1984 Mass. App. LEXIS 1533, Counsel Stack Legal Research, https://law.counselstack.com/opinion/plymouth-rubber-co-v-insurance-co-of-north-america-inc-massappct-1984.