Feinberg v. Insurance Company of North America, No. 5387.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtMAGRUDER, , and WOODBURY and HARTIGAN, Circuit
Citation260 F.2d 523
PartiesMorris FEINBERG, Treasurer, et al., Plaintiffs, Appellants, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant, Appellee,
Docket NumberNo. 5387.
Decision Date04 November 1958

260 F.2d 523 (1958)

Morris FEINBERG, Treasurer, et al., Plaintiffs, Appellants,
v.
INSURANCE COMPANY OF NORTH AMERICA, Defendant, Appellee,

No. 5387.

United States Court of Appeals First Circuit.

November 4, 1958.


260 F.2d 524

Morris Michelson, Boston, Mass., for appellants.

William T. Conlan, Boston, Mass., with whom Norman B. Silk and Ely, Bartlett & Brown, Boston, Mass., on brief, for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

WOODBURY, Circuit Judge.

This appeal is from a judgment dismissing a complaint in an action brought in the court below under its diversity jurisdiction to recover under a policy of marine insurance for damage to the yacht Mariposa and its equipment. Trial was by the court without a jury.

The Mariposa was a luxurious twinscrew Chris-Craft cabin cruiser, 42 feet long with a beam of 13 feet and a draft of 3 feet. On the evening of June 6, 1957, she was left securely moored at the main dock of a marina in the Neponset River in Dorchester, Massachusetts. Where she lay she was in the range of a flood light mounted on a building of the marina and she was left at that particular place to discourage marauders from boarding her, there being no night watchman in attendance. An employee of the marina testified that he observed the yacht at her mooring, apparently undisturbed, about 10:30 that night when he drove by in his automobile.

At about 7:30 on the following morning the Mariposa was discovered some 90 feet away tied up in a different way at another float of the marina out of the range of the flood light and in a sinking condition with some 4 feet of water in her hull. Employees of the marina at once went to work, some with mechanical pumps and others with buckets, and when some of the water had been removed it was discovered that the sea cock or drain plug located in the bottom of the hull near the bow had been unscrewed and removed. In spite of diligent search, the plug has never been found. At the same time it was also discovered that, although there was no evidence of a forced

260 F.2d 525
entrance into the yacht, several items of personal property, such as cases of liquor, fishing tackle, guns and ammunition and a TV set had been removed. Smudges, finger marks and scuff marks on the river side of the hull indicated that this property had probably been carried away in a small boat positioned alongside

The District Court found that during the night strangers moved the Mariposa from the float where she was left moored to the float in darkness some 90 feet away "solely to facilitate the removal of bulky personal property," that they entered by unlocking the cabin door with a skeleton key and removed the personal property in a small boat stationed alongside, and that afterward they removed and carried away the drain plug. The Court said that it did not believe scuttling the yacht was a mere afterthought, but that "contemplation of scuttling was part of the original plan" conceived by the strangers who during the night moved the boat, boarded her and took the items of personal property out of her.

The question as posed by the court below and presented to us on this appeal is whether moving the yacht to another dock 90 feet away in order to steal personal property on board and with the intention of scuttling her thereafter, the subsequent entry and larceny and the ultimate scuttling, come within the coverage of the insurance policy sued upon.

It is not contended that the policy covers scuttling, or vandalism, or larceny of personal property from the yacht, as such. Nor is it urged here, although it was in the court below, that the damage to the boat resulted from a "peril of the sea." It is not contended that the loss was caused by "assailing thieves," and certainly there is nothing to indicate barratry of the master and mariners. Of course, there is no suggestion of jettisons or of fire or lightning. Thus for present purposes the critical clause of the policy reads: "Touching the adventures and perils which this Company is content to bear, and does take upon itself, they are * * * theft of the entire Yacht * * and of all other like perils, losses and misfortunes, that have or shall come to the hurt, detriment or damage of said Yacht or any part thereof." The question therefore narrows to whether on the facts found there was a "theft of the entire Yacht" or whether she suffered a "like" peril, loss or misfortune within the meaning of the clause of the policy of insurance quoted above.

The District Court ruled, we think correctly, that the policy covered damage to part of the vessel and loss of its equipment only if caused by a peril specified in the policy. Thus, since the peril of theft is expressly limited to theft of the entire vessel, it follows that the theft...

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18 practice notes
  • Compagnie De Reassurance D'Ile de France v. New England Reinsurance Corp., Nos. 93-2338
    • United States
    • U.S. Court of Appeals — First Circuit
    • 5 Mayo 1994
    ...(citing Jimenez v. Peninsular & Oriental Steam Navigation Co., 974 F.2d 221, 223 (1st Cir.1992); Feinberg v. Insurance Co. of N. Am., 260 F.2d 523, 527 (1st Cir.1958)) ("In construing a contract, we must give reasonable effect to all terms whenever possible."); id. at 1052-53 ......
  • Falmouth Nat. Bank v. Ticor Title Ins. Co., No. 90-1335
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 7 Septiembre 1990
    ...that whenever possible, each word in an insurance policy should be considered and given some meaning. Feinberg v. Insurance Co. of N. Am., 260 F.2d 523, 527 (1st When considering an insurance policy in its entirety, the general rule is that any ambiguity should be construed against the insu......
  • Catlin (Syndicate 2003) At Lloyd'S v. San Juan Towing & Marine Servs., Inc., Civil Nos. 11–2093 (FAB), 11–2116(FAB).
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • 30 Julio 2013
    ...in the clause would effectively render the entire clause a ‘literary embellishment.’ ”) (citing Feinberg v. Ins. Co. of N. Am., 260 F.2d 523, 527 (1st Cir.1958))). Fatalistically, Catlin does not justify how “other causes of whatsoever nature arising either on shore or otherwise” supports i......
  • U.S.A. v. Alegria, No. 98-1976
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 6 Agosto 1999
    ...contracts generally, should be construed where possible to give effect to every term and phrase. See Feinberg v. Insurance Co. of N. Am., 260 F.2d 523, 527 (1st Cir. 1958) ("In construing Page 186 a contract, we must give reasonable effect to all terms whenever possible."). In the......
  • Request a trial to view additional results
18 cases
  • Compagnie De Reassurance D'Ile de France v. New England Reinsurance Corp., Nos. 93-2338
    • United States
    • U.S. Court of Appeals — First Circuit
    • 5 Mayo 1994
    ...(citing Jimenez v. Peninsular & Oriental Steam Navigation Co., 974 F.2d 221, 223 (1st Cir.1992); Feinberg v. Insurance Co. of N. Am., 260 F.2d 523, 527 (1st Cir.1958)) ("In construing a contract, we must give reasonable effect to all terms whenever possible."); id. at 1052-53 ......
  • Falmouth Nat. Bank v. Ticor Title Ins. Co., No. 90-1335
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 7 Septiembre 1990
    ...that whenever possible, each word in an insurance policy should be considered and given some meaning. Feinberg v. Insurance Co. of N. Am., 260 F.2d 523, 527 (1st When considering an insurance policy in its entirety, the general rule is that any ambiguity should be construed against the insu......
  • Catlin (Syndicate 2003) At Lloyd'S v. San Juan Towing & Marine Servs., Inc., Civil Nos. 11–2093 (FAB), 11–2116(FAB).
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • 30 Julio 2013
    ...in the clause would effectively render the entire clause a ‘literary embellishment.’ ”) (citing Feinberg v. Ins. Co. of N. Am., 260 F.2d 523, 527 (1st Cir.1958))). Fatalistically, Catlin does not justify how “other causes of whatsoever nature arising either on shore or otherwise” supports i......
  • U.S.A. v. Alegria, No. 98-1976
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 6 Agosto 1999
    ...contracts generally, should be construed where possible to give effect to every term and phrase. See Feinberg v. Insurance Co. of N. Am., 260 F.2d 523, 527 (1st Cir. 1958) ("In construing Page 186 a contract, we must give reasonable effect to all terms whenever possible."). In the......
  • Request a trial to view additional results

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