Jarvis Towing & Transp. Corp. v. Aetna Ins. Co.

• Decision Date: 24 November 1948
• Citation: 298 N.Y. 280,82 N.E.2d 577
• Court: New York Court of Appeals Court of Appeals
• Parties: JARVIS TOWING & TRANSP. CORPORATION et al. v. AETNA INS. CO. et al.

298 N.Y. 280

82 N.E.2d 577

JARVIS TOWING & TRANSP. CORPORATION et al.

v.AETNA INS. CO. et al.

Court of Appeals of New York.

Nov. 24, 1948.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Jarvis Towing & Transportation Corporation and others against Aetna Insurance Company and others, to recover upon a marine hull insurance policy. From a judgment of the appellate division of the Supreme Court in the first judicial department, 273 App.Div. 853, 77 N.Y.S.2d 260, entered March 5, 1948, unanimously affirming a judgment of the Supreme Court, 72 N.Y.S.2d 696, in favor of plaintiffs entered in New York County upon a verdict rendered at a trial term, defendants appeal by permission of the Court of Appeals.

Reversed and complaint dismissed. Henry J. Bogatko and William M. Keegan, both of New York City, for appellants.

Joseph K. Inness, of New York City, for respondents.

DESMOND, Judge.

Plaintiffs (two affiliated corporations which we shall call ‘plaintiff’) were respectively, the actual owner and the demise charterer or ‘chartered owner’ of the tug American Eagle, and, as such, brought this action to recover upon a marine hull insurance policy issued to them by defendants. The tug had sustained damage, from one of the perils insured against, when, while tied up for the night at a Brooklyn pier, in January, 1945, one of her stern planks was stove in by floating ice. The sole question is as to whether or not plaintiff proved compliance with this part of the policy: ‘Warranted by the assured that when this vessel is tied up or moored, it shall at all times be in charge of a competent watchman in the employ of the Assured, who shall make careful examination of the vessel throughout at frequent intervals, including inspection of the bilges.’ On the trial there was a jury verdict for plaintiff, judgment thereon being affirmed unanimously by the Appellate Division, whereupon we granted defendant leave to appeal to this court.

It is undisputed, and the trial court correctly instructed the jury, that the provision above quoted is an express promissory warranty, which must be literally complied with, and that noncompliance forbids recovery, regardless of whether the omission had causal relation to the loss. Ripley v. Aetna Ins. Co., 30 N.Y. 136, 86 Am.Dec. 362;First Nat. Bank of Ballston Spa v. President, etc., of Insurance Co. of North America, 50 N.Y. 45;Cary v. Home Ins. Co., 199 App.Div. 122, 191 N.Y.S. 529, affirmed 235 N.Y. 296, 139 N.E. 274;Snyder v. Home Ins. Co., D.C., 133 F. 848, affirmed 2 Cir., 148 F. 1021;Shamrock Towing Co. v. American Ins. Co., 2 Cir., 9 F.2d 57, 60.

Plaintiff's testimony, accepted by the jury, shows that the tug had tied up at one of the several piers which make up plaintiff's Brooklyn terminal, late in the afternoon preceding the disaster. After the mooring, banking of fires and pumping of bilges had been attended to, as was usual every afternoon, the master and the fireman departed, leaving engineer Thomas, who customarily slep on board. Thomas was not instructed to, or expected to, act as a night watchman but was permitted to sleep on the tug. He left early in the evening to go to dinner and a theatre, returning about 10:00 P. M., at which time he looked at the lines, the boiler and the bilges, found everything in ordr, and then went to bed. When he awoke at 3:45 A. M., the tug was sinking.

Plaintiff had a contract or arrangement with Oceanic Service Company, a so-called ‘watching concern’, by the terms of which the ‘day supervisor’, and the ‘night supervisor’ of that company were to keep plaintiff's tug under observation at all times during their respective tours of duty and to see that there was always steam up. Oceanic Service Company, with a considerable force of patrolmen, furnished police and watchman service for the piers at one of which the American Eagle tied up every afternoon after her day's work. The patrolmen had no duties in connection with watching the tug, but their supervisors, one during the day and the other at night, were stationed, or made their rounds, at points where the tug was in plain view nearby. Both supervisors testified that the tug when tied up, was at all times in full view of the Supervisor on duty. But there is...