Kerr v. Union Marine Ins. Co.

• Decision Date: 03 September 1903
• Citation: 124 F. 835
• Parties: KERR et al. v. UNION MARINE INS. CO., Limited.
• Court: U.S. District Court — Southern District of New York

124 F. 835

KERR et al. v. UNION MARINE INS. CO., Limited.

United States District Court, S.D. New York.

September 3, 1903

Butler Notman, Joline & Mynderse (Wilhelmus Mynderse, of counsel) for libelants.

Albert A. Wray, for respondent.

HOLT District Judge.

This is an action upon a contract of marine insurance. On November 4 1901, the libelants, John E. Kerr & Co., merchants, of New York, applied to the respondent, the Union Marine Insurance Company, Limited, for insurance on a cargo of logwood on the brigantine A. Elida, from Black River Jamaica, to New York. The application was made on a printed form used by the respondent. It contained a provision that the insurance was subject to the conditions of the printed form of policy used by the company at its New York agency at that date, which form, among other provisions, insured ships 'lost or not lost.' The application, when filled out, stated the usual particulars of the vessel, cargo, and, voyage. In the space opposite the printed words, 'Time of Sailing' were inserted the written words 'Not sailed.' The date 'Nov. 4th, 1901,' was also written on the application. This application, so filled out, was submitted to an officer of the insurance company by Mr. Woore, a member of the firm of McDowall, Carrol & co., insurance brokers, representing Kerr & Co. Certain immaterial provisions in the application were changed. Mr. Woore then asked the rates of insurance, which were given, and written upon the application. Mr. Woore then wrote upon the application 'Inquiry,' to indicate that it was not a complete application, and left it with a representative of the insurance company, who placed it upon a file of pending inquiries. Mr. Woore reported the rates and terms to Kerr & Co., who thereupon endeavored to secure more favorable rates from other companies, and, among other inquiries, cabled to England. While these inquiries were being made, the matter slipped along until the 12th of December, 1901, when Kerr & Co. received a letter from Black River, dated the 3d of December, which stated that 'the Elida clears to-day.' Kerr & Co. immediately telephoned to McDowall, Carroll & Co. to close the insurance at once. Mr. Woore went to the office of the insurance company, and ascertained from Mr. Whitlock, the representative of the company, that the insurance company was ready to complete the insurance on the terms stated. He reported to Kerr & Co., and was directed by them to close the insurance regardless of rates. Mr. Woore thereupon returned to Mr. Whitlock, and told him that he wanted to make the risk binding, and Mr. Whitlock said that he would bind it for him. Mr. Whitlock then put his initials on the application, under the word 'Binding,' struck out the word 'Inquiry,' and struck out the date 'Nov. 4th, 1901,' and inserted over it the date 'Dec. 12/01.' Thereupon McDowall, Carrol & Co. notified Kerr & Co. that the insurance was taken. This was about 5 p.m. on the 12th of December. The next morning, December 13th Kerr & Co. heard that the Elida and her cargo had been lost. She sailed from Black River December 4th, and was wrecked on December 7th on the south coast of Cuba, about 18 miles from Cape Corrientes. The ship and cargo were a total loss. The captain and crew made their way in a small boat around the west end of Cuba until they finally found a fishing vessel, which took them to Havana, a journey occupying five days. The captain reached Havana on December 12th, about 6 p.m. Until he reached there he had no means of communication with New York. He immediately cabled to the agents of the vessel at New York. The cablegram reached New York at 7:04 p.m. on the 12th of December. It was not delivered to the agents until the following morning, and the news reached Kerr & Co., through the agents, that forenoon. Kerr & Co. thereafter duly tendered the premium, filed proofs of loss, and demanded payment of the insurance, which was refused.

This action is brought upon the binding slip to recover the insurance. The answer alleges three grounds of defense: That the libelants concealed the sailing and the loss, that the vessel was unseaworthy, and that the statement in the binding slip, 'not sailed,' was a warranty or a representation that the vessel had not sailed on December 12th, which vitiated the insurance. On the trial the respondent's counsel suggested another defense-- that this court has no jurisdiction.

In my opinion, there is no evidence that the libelants knew of the loss or concealed it. The evidence is clear and entirely uncontradicted that t...