Van Wickle v. Mechanics' & Traders' Insurance

16 Jones & S. 95

• Court: The Superior Court of New York City
• Decided: February 6, 1882
• Status: Published

Opinion

By the Court.—Freedman, J.

The action is on a policy of insurance upon a cargo of coal shipped on board of the canal-boat W. S. Storms, from South Amboy, N. J., to New York city. The defense is unseaworthiness. That the assured, by the mere fact of effecting an insurance upon ship, freight, or cargo, and independently of the particular terms used, impliedly warrants that the ship is at the commencement of the voyage seaworthy; that this warranty is. a condition precedent to the policy attaching ; the extent of the warranty; the standard of seaworthiness—all. these questions have been so fully examined and discussed in Rogers v. Sun Hut. Ins. Co. (46 Super. Ct. 65), that a bare reference to that case is all that is necessary here. The case' at bar falls within the rule as there laid down.

Upon the question of seaworthiness the evidence shows that the vessel, after a voyage of about twenty-four or forty-eight hours only, and after her arrival at this port without having encountered any storm, stress of weather or other peril of the sea which might furnish an explanation, in fine weather and smooth water, and though properly loaded, suddenly sank at her dock without any apparent extraneous cause, and in such a way that in going down she looked as if she broke in two. This was presumptive evidence of unseaworthiness at the time of her sailing (Wright v. Orient Mut. Ins. Co., 6 Bosw. 269), and the plaintiffs having failed to give any proof showing seaworthiness, the complaint was properly dismissed.

The judgment should be affirmed with costs.

Russell, J., concurred.