Long Dock Mills & Elevator Co. v. Mannheim Ins. Co.
| Decision Date | 21 July 1902 |
| Citation | 116 F. 886 |
| Parties | LONG DOCK MILLS & ELEVATOR CO. v. MANNHEIM INS. CO. |
| Court | U.S. District Court — Southern District of New York |
Wing Putnam & Burlingham, for libellant.
John W Ingram, for respondent.
The libelant was engaged in the grain and feed business with a place of distribution on the Harlem River, at 135th Street and Mott Haven Canal. On or about the 20th day of October 1900, it sold a quantity of feed to be delivered at Kingsbridge on the Harlem River and the boat 'A. J Squires' was employed to make the delivery. The unloading was to be done by the purchaser and to avoid the additional expense incident to taking the cargo out of the hold, it was stipulated that it should be laden on deck. The quantity was too great for one load and it was arranged that two trips should be made. In conformity with the usual course of business, the libellant instructed its insurance agents to cover the risks, which they did by placing them with the respondent. A binder was first obtained, and then a certificate of insurance, the material parts of which are as follows:
'New York, Oct. 24th 1900.
'This is to certify that on the 22d day of October 1900 this Company insured under open Policy No. 2 made for Long Dock Mills & Elevator One Thousand Dollars on Hay, grain & feed in bags on deck. Valued at Sum Insured on board By. A. J. Squires. At and from Mott Haven Canal & Harlem River to Kingsbridge, N.Y. loss, if any, payable to the order of The Assured on presentation of this Certificate, and Loss to be adjusted to the holder thereof, in conformity with the conditions of the said Policy, and paid at the Office of the Company's General Agency in New York.
The Certificate represents and takes the place of the Policy, and conveys all the rights of the original Policy holder (for the purpose of collecting any loss or claims) as fully as if the property was covered by a Special policy direct to the holder of this Certificate, and free from any liability for unpaid premiums.' On the margin the following appeared:
The first question in the case arises with respect to what constituted the contract of insurance. The libelant contends that the foregoing is the complete contract and the respondent contends that a form of policy in use by the company should be deemed to be incorporated therein. It appears that no policy was ever written out for the libellant but it is stated in the testimony of the respondent that it was agreed the insurance was issued under the usual conditions contained in the respondent's form of Canal Cargo policy and that it was not usual to actually make out and issue formal policies in matters of this kind. The question is not without difficulty in view of some of the language employed in the certificate. Nevertheless the certificate clearly refers to a policy and the testimony seems to establish that the ordinary form of policy used by the defendant company was referred to and intended to be considered as a part of the contract. In any event, its provisions do not go much beyond what would be required of the insured under the implied warranty of seaworthiness which always attends a contract of marine insurance.
This form of policy contained exceptions against loss arising from want or ordinary care and skill in loading or navigating the boat or from the boat being unduly laden, from spilling of cargo by careening of the boat in consequence of carelessness or overloading, from not keeping the boat well pumped out from any unseaworthiness either from the condition of the boat or want of proper manning. It also provided that in case of loss or misfortune it should be the duty of the captain and crew, or those having command, to use the utmost diligence and attention to save the property.
The boat was loaded with about 53 tons of the feed on deck on the afternoon of the 23d day of ...
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