Purofied Down Products Corp. v. Travelers Fire Ins. Co.

Citation278 F.2d 439
Decision Date04 May 1960
Docket NumberDocket 25748.,No. 77,77
PartiesPUROFIED DOWN PRODUCTS CORP., Plaintiff-Appellee, v. TRAVELERS FIRE INSURANCE COMPANY, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Norman D. Levy, New York City (Irving L. Spanier, New York City, on the brief), for plaintiff-appellee.

Vincent L. Leibell, Jr., New York City (Bigham, Englar, Jones & Houston, New York City, on the brief), for defendant-appellant.

Before SWAN, MAGRUDER and LUMBARD, Circuit Judges.

Rehearing in banc Denied June 2, 1960.

MAGRUDER, Circuit Judge.

An insurance company takes this appeal from a judgment by the district court in favor of the insured, in the sum of $8,418.37, on a marine insurance policy. We have determined that we should affirm the judgment under review, with a slight modification, 172 F.Supp. 472.

The insured, Purofied Down Products Corporation, hereinafter called "Purofied," is engaged in the business of importing feathers and processing them for use in the manufacture of pillows, comforters and sleeping bags. In November, 1949, the Travelers Fire Insurance Company, hereinafter called "Travelers," issued to Purofied an open or floating marine insurance policy. This contract was "valued"; that is, the parties stipulated in advance the amount to be paid the insured in the event of total loss. Because the insured could not know at the time it took out the policy the exact value of the subsequent shipments to be covered thereunder, the parties agreed upon a basis of value, rather than upon a specific figure:

"7. Valued premium included, at amount of invoice including all charges therein, plus any prepaid and/or advanced and/or guaranteed freight not included in the invoice, plus 10%, foreign currency to be converted into dollars at bankers\' sight rate of exchange applicable to each invoice and/or credit and/or draft."

The policy contained other provisions relevant to the issues in this case:

"19. This insurance shall not be vitiated by any unintentional error in description of vessel, voyage or interest, but any such error must be reported to this Company as soon as known to the Assured, and additional premium paid if required."
"26. (A) It is a condition of the liability of this Company that all risks hereunder be reported as soon as known to the Assured and amounts declared as soon as ascertained; and should the Assured fail to report risks covered hereby, then this policy as to all subsequent risks, shall become null and void if this Company shall so elect;
(B) The Company is entitled to premiums, at rates of this Company, on all risks covered herein whether reported or not;
(C) This Company shall have the privilege, at any time during business hours, to inspect the records of the Assured as respects shipments coming within the terms of this Policy."
"27. It is a condition of this Policy, and it is hereby agreed, that the Assured\'s brokers, Buhler Service Corp. * * * shall be deemed to be exclusively the agents of the Assured and not of this Company in any and all matters relating to * * * this insurance. Any notice given or mailed by or on behalf of this Company to the said brokers * * * shall be deemed to have been delivered to the Assured."

Also by endorsement in 1952, a term was added to the contract in the nature of a limitation, as follows:

"No suit or action for recovery of any claim arising under this Policy shall be sustainable in any court unless such suit or action shall have been commenced within 12 months next after notice to the consignee of the arrival of the shipment."

A schedule attached to the policy established premiums at a certain rate per $100.00 of insurance.

A shipment of feathers consigned to the insured was totally lost on July 18, 1952, while at sea aboard the M/S Black Gull. Prior to this date the insured had sent to the underwriter a provisional declaration covering the estimated value of the shipment, which was stated to be $52,000. Subsequent to the loss, and after both parties were aware of the same, the insured sent to the underwriter a final declaration, again giving the value of the shipment as $52,000. In this respect the insured was merely following a "customary procedure" which it had indulged in throughout the life of the policy: in declaring the amount of each risk or shipment to which coverage attached, it reported only the invoice amount of the shipment and omitted the appropriate freight charges plus the extra ten per cent. Since the insurer determined the amount of the premium upon the basis of the final declaration, which seems to be the declaration required by clause 26(A), the premiums billed by the insurer and paid by the insured during the life of the policy were lower than they should have been.

The evidence does not show and the trial court made no findings as to whether or not the undervalued declarations were the product of bad faith on the part of the insured or whether or not the insurer at the time it issued its check for $52,000 was cognizant of the insured's "customary procedure." It may well be that Travelers had the right to consider the policy void and refuse to recognize Purofied's claim in toto. Cf. Atlantic Fruit Co. v. Hamilton Fire Insurance Co. of New York, 1929, 251 N.Y. 98, 167 N.E. 184.1 But even if Travelers did not know, when it paid the $52,000, that Purofied's declarations had always been undervalued, the receipt of such knowledge assuredly preceded the initiation of this action. Travelers having up to now made no claim of forfeiture, it must be deemed to have waived whatever option it conceivably may once have had. See Brink v. Hanover Fire Insurance Co., 1880, 80 N.Y. 108; Fuessler v. Chautauqua County Patrons' Fire Relief Ass'n, 1940, 260 App.Div. 991, 23 N.Y.S. 2d 288; Lieberman v. Equitable Life Assurance Society, 1938, 168 Misc. 259, 5 N.Y.S.2d 777.

Purofied claims that under clause 7 of the policy it was entitled to recover from the insurer the amount of $52,000, as stated in its final declaration, and prepaid freight in the amount of $680.63, plus an additional ten per cent, or a total of $52,000 plus $5,945.69, with interest. Travelers contends that Purofied is bound by the figure stated in its final declaration. We think the issue is governed by St. Paul Fire & Marine Insurance Co. v. Pure Oil Co., 2 Cir., 1933, 63 F.2d 771. There the insurer issued certificates of insurance to the insured under a floating marine policy at a time when both parties knew that the goods to which the certificates applied had been lost. These certificates of insurance are the counterparts of the declaration involved in the present litigation, being equivalent to the insurer's receipt of the insured's declaration. See Thayer, "Marine Insurance Certificates," 49 Harv.L. Rev. 239 (1935). In the St. Paul Fire & Marine Insurance Co. case, the certificates stipulated that the oil lost was to be valued at $2.75 a barrel. The policy itself valued each risk at the sales price of the goods at the port of destination on the date of sailing. After paying the insured $2.75 per barrel, a figure which both parties calculated to be the sales price at port of destination on day of sailing, the insurer discovered that $2.19 was the correct price and sued to recover the excess from the insured. The court held that the certificates of insurance did not create a new valuation, for they were issued after knowledge of the loss had reached both parties. Had these certificates been issued prior to the loss, they perhaps would have bound both insured and insurer. Because they were issued after notice of loss, however, they could only constitute an accord which later payment might satisfy.

Such a result is sound. The purpose of a binding declaration of value being to stipulate damages in advance, once the risk has been lost the damages are suffered, and the insurer is in debt to the insured. After notice of loss, a stipulation of the damages owing can be binding, if at all, only as an agreement to discharge the outstanding debt by payment of the sum agreed upon. In other words, if the parties so intend, a declaration of value by the insured and acceptance by the insurer following the loss of the risk may be an accord later to be satisfied by payment of the stipulated figure. Taken solely as a declaration of value, Purofied's report is not binding.2

Notwithstanding the existence of dispute as to the amount due for the loss aboard the Black Gull, Travelers mailed to Buhler Service Corporation, which acted only as insured's agent and broker in the transaction, a check for $52,000, payable to Purofied. There was no statement by the insurer that this check was tendered as "full and final payment" on the policy; nor was there any covering letter to that effect accompanying the check. Under date of August 28, 1952, Buhler Service Corp. forwarded this check to Purofied, with a letter stating that:

"We take pleasure in delivering to you draft of the Travelers Insurance Company in the amount of $52,000. in full and final payment of your Ocean Marine loss which occurred on July 18th, 1952 on the S.S. Black Gull. In that connection, we call your attention to the fact that the declaration you filed with the Insurance Carrier indicated that the full valuation was $52,000. The latter amount was, therefore, the maximum amount of coverage you purchased."

The above was the language of Purofied's agent, not that of Travelers, as was emphasized in clause 27 of the policy, quoted above. The letter of August 28, 1952, may have indicated the subjective opinion of the insured's agent, but assuredly evinces no agreement between insured and insurer that the receipt of the check was to discharge the insurer's liability under the policy. Nor did Purofied defraud Travelers by depositing the check, for Travelers imposed no condition on its use. Under such circumstances, an accord and satisfaction...

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