Kuehne & Nagel, Inc. v. Baiden

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before NUNEZ; STEUER
• Citation: Kuehne & Nagel, Inc. v. Baiden, 354 N.Y.S.2d 648, 44 A.D.2d 296 (N.Y. App. Div. 1974)
• Decision Date: 25 April 1974
• Parties: , 1974 A.M.C. 1373 KUEHNE & NAGEL, INC., Plaintiff-Respondent-Appellant, v. F. W. BAIDEN and all other underwriters at Lloyd's Subscribing Policy of Insurance 655/MA44619, Defendants-Appellants-Respondents.

Page 648

354 N.Y.S.2d 648

44 A.D.2d 296, 1974 A.M.C. 1373

KUEHNE & NAGEL, INC., Plaintiff-Respondent-Appellant, v. F. W. BAIDEN and all other underwriters at Lloyd's Subscribing Policy of Insurance 655/MA44619 Defendants-Appellants-Respondents.

Supreme Court, Appellate Division, First Department.

April 25, 1974.

Nicholas J. Healy, Jr., New York City, of counsel (Healy & Baillie, New York City, attys.), for plaintiff-appellant.

William Warner, New York City, of counsel (Symmers, Fish & Warner, New York City, attys.), for defendants-appellants.

Before NUNEZ, J.P., and KUPFERMAN, MURPHY, STEUER and TILZER, JJ.

STEUER, Justice.

Plaintiff is the assignee of the charterer of the motorship Valhall. (Hereinafter plaintiff's assignor will be referred to as plaintiff.) Plaintiff chartered this vessel on April 16, 1970, for a voyage from Gdynia, Poland, to Santa Marta, Colombia. The purpose of the voyage was to transport 300 jeeps consigned to Caribe, the purchaser of the jeeps. Most of the jeeps were stowed in the hold but a substantial number were stowed on deck. On the voyage many of the jeeps stowed on deck were damaged and some were swept overboard in an encounter with heavy seas. Upon the ship's arrival at Santa Marta, Caribe inspected the shipment and fixed the damage to the consignment at some $81,000. It refused to pay the freight charges. By virtue of tacit understanding, though without any express agreement, plaintiff forbore to press for the freight charges and Caribe sought no further compensation. In Colombia the statute of limitations has run against any claim that either of these parties might have against the other.

Defendant had issued to plaintiff its policy of insurance insuring plaintiff against liability as charterer of the vessel. On that policy plaintiff has brought an action for the amount of the freight, not as freight per se but as the amount it was required to pay to settle Caribe's claim against it for cargo damage. Defendant resists the claim. Both sides moved for summary judgment, both maintaining that there are no disputed questions of fact. Special Term denied both motions on the ground that there are questions of fact. We do not see any.

Initially, it is not contested that an insured charterer under a marine policy may settle any claim against it arising under a risk covered by the policy and the insurer, subject to the reasonableness of the settlement, must make the insured whole. Forgoing the freight charge was a method of settlement and there can be no question of the reasonableness of the amount. The sole remaining element to constitute plaintiff's claim would be to show that the claim that was settled was for a risk insured against.

Caribe in asserting its claim against plaintiff never alleged...