Providence Washington Ins. Co. v. Lovett, Adm. No. 1764.
| Decision Date | 21 October 1953 |
| Docket Number | Adm. No. 1764. |
| Citation | 119 F. Supp. 371 |
| Parties | PROVIDENCE WASHINGTON INS. CO. v. LOVETT. |
| Court | U.S. District Court — District of Rhode Island |
Marshall Swan, and John B. Dillon, Providence, R. I., for libellant.
Raymond E. Jordan, and Kirk Hanson, Providence, R. I., for respondent.
This is an admiralty action brought pursuant to the general admiralty jurisdiction and under Title 28 U.S.C. § 2201, whereby the libellant, the Providence Washington Insurance Company, seeks a declaratory judgment as to questions concerning the validity and enforceability of an insurance contract, civil and maritime, between the parties relating to the gas yacht, Braemar, owned by the respondent and located within the jurisdiction of this Court.
The libellant is a corporation, organized under the laws of the State of Rhode Island, located at Providence, and authorized to carry on a maritime insurance underwriting business. The respondent is the owner of the yacht Braemar, and a resident of Providence, in said State. No question is raised in this case relative to the jurisdiction of this Court.
On August 9, 1950, the libellant issued to the respondent a policy of marine insurance, insuring the yacht Braemar, and the respondent as owner, against the perils of the sea during the term of one year from August 9, 1950 to August 9, 1951. The policy of insurance contained a lay-up warranty that the said yacht "shall be laid up and out of commission from November 1st at noon until May 1st at noon."
On November 25, 1950, the Braemar, a 40 foot gasoline motor cruiser, was moored in the last or most outward finger slip on the south side of the main pier at Port Edgewood Marina. In the latter part of October, 1950, the respondent ordered the management of Port Edgewood Marina to haul up his yacht for the winter. Prior to November 1, 1950, the respondent caused to be removed from his said yacht the ship's papers, all navigation equipment, the wet batteries, all fresh water from the bilges, pumps, motors, etc., and all gasoline from the tanks. On November 25, 1950, storm warnings were received at Port Edgewood Marina and shortly thereafter his yacht, the Braemar, was secured by extra lines in a seamanlike manner by those in charge of the boatyard. The storm occurred late that day with easterly winds of high velocity. During this storm one or more of the lines, with which the Braemar was moored, slackened by force of the wind so that she rubbed against a protruding bolt in the slip and wore a hole in her side that caused her to sink. The damage to the Braemar was in the amount of three thousand dollars.
It was agreed between the parties that pleasure craft, similar in size and class to the Braemar, were not customarily wet stored at Port Edgewood Marina for the entire winter season. Nevertheless, such craft were moored in the water out of service for the entire winter season at certain other specified locations in the Narragansett Bay area.
The pier herein mentioned extended out from the shore for a distance of approximately 150 feet and ran, generally, east and west, with the Providence River running, generally, north and south. Narragansett Bay was to the south of Port Edgewood Marina as indicated by the chart of this particular body of water. The pier was maintained on pilings as were the finger piers running from it in a northerly and southerly direction. The yacht, berthed as aforesaid, was tied up and facing in a southerly direction.
The Port Edgewood Marina pier was fully protected from the west. It was protected from the north and northeast by a Navy pier and land mass. On the east was the opposite shore line of the Providence River, less than a nautical mile distant and plainly visible from Port Edgewood Marina. Some distance southerly of the pier, a yacht club building was situated which protruded somewhat into the water. The pier, however, was completely unprotected from the southeast, in the direction of Narragansett Bay.
The libellant contends that the yacht Braemar was not laid up and out of commission on or prior to November 1, 1950, but was left moored and unprotected against the winter storms at Port Edgewood Marina; that on and after November 1, 1950, there was a breach of the warranty to lay up and decommission in that the respondent failed to haul her up on shore for the winter prior to November 1, 1950, and that as a result of said breach, the policy of insurance ceased to have any force or effect between November 1, 1950 and May 1, 1951. The libellant further contends that, as a result of the failure of the respondent to properly lay up and decommission said yacht, it was sunk on November 25, 1950.
The respondent contends that the yacht Braemar was laid up and out of commission prior to November 1, 1950, and was also laid up and out of commission at the time it was sunk on November 25, 1950; that the warranty to lay up and decommission was not breached as the libellant contends, but was, on the contrary, in full force and effect at the time of the sinking on November 25, 1950. The respondent further contends that there was a well-established custom and practice for the wet storage of boats at Port Edgewood Marina pending hauling up between November 1 and December 15 and that the Braemar was placed in wet storage in a safe place in accordance with this prevailing custom and practice. The respondent further contends that the libellant has, without cause, failed and refused to pay a just claim of insurance for the sinking of his said yacht.
The sole issue for determination by this Court is whether there was compliance with the lay-up warranty contained in the yacht policy issued by the libellant to the respondent.
It is a well-established principle, as stated in Gelb v. Automobile Insurance Co. of Hartford, 2 Cir., 168 F.2d 774 at page 775, that "parties are presumed to contract with reference to general customs and usages which explain the specific meaning of a term used and personal knowledge of the customary meaning need not be had by the parties to the contract."
Evidence was adduced by the libellant and the respondent relating to the practice or custom existing in the Port of Providence and Narragansett Bay generally, and particularly at...
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