Weinberg & Holman, Inc. v. Providence Washington Ins. Co.

• Decision Date: 18 November 1930
• Citation: 254 N.Y. 387,173 N.E. 556
• Court: New York Court of Appeals Court of Appeals
• Parties: WEINBERG & HOLMAN, Inc., v. PROVIDENCE WASHINGTON INS. CO.

254 N.Y. 387

173 N.E. 556

WEINBERG & HOLMAN, Inc.,

v.PROVIDENCE WASHINGTON INS. CO.

Court of Appeals of New York.

Nov. 18, 1930.

Action by Weinberg & Holman, Inc., against the Providence Washington Insurance Company. From a judgment of the Appellate Division (228 App. Div. 612, 237 N. Y. S. 918), affirming a judgment of the Trial Term on the verdict of a jury in favor of plaintiff, defendant appeals.

Reversed, and complaint dismissed.

Appeal from Supreme Court, Appellate Division, First department.

Arthur W. Clement and Henry J. Bogatko, both of New York City, for appellant.

George X. Levine, Alfred B. Nathan, and S. Howard Imbrey, all of New York City, for respondent.

POUND, J.

This is an action on an open cargo policy of insurance to recover for the loss sustained by reason of the theft, pilferage, or nondelivery of a part of a shipment of raw fur skins from London to New York. The Policy covers all goods shipped by or consigned to plaintiff ‘at and from ports or interior places throughout the world to ports or interior places in the United States, by land and water, direct or otherwise, including the risks of trans-shipment and lighterage and with all liberties as per contract of affreightment,’ and including theft, pilferage, or nondelivery.

Furs were shipped to plaintiff from London to New York. At some time and place between the time when the shipment left the warehouse and the time when it arrived in New York, a portion of the furs was stolen. Before any particular risk was covered by the policy, the shipper was required to send a declaration of the shipment to the insurance company. In this case the declaration stated that the shipment was made per steamer Homeric from London to New York. The goods were in fact shipped from London via Southampton to Havre, France, and reshipped from Havre to New York via Southampton. They thus crossed and recrossed the English Channel on transport steamers before proceeding on the steamer Homeric from Southampton, although the direct and usual voyage did not require such transshipment. The insurancecompany received no notice of the routing via Havre until after the loss was discovered. The shipment was made in this way to obtain the advantage of lower freight rates from the French port to New York; it being cheaper by reason of a rate was to ship from a French port. Payment of the loss was refused of the ground that the shipment was not made from London to a port in the United States but from London to the French port and from the French port to Southampton, where they were loaded on the Homeric and shipped to New York.

The question of deviation or change of voyage does not arise in the case. Lower rates were obtained by making the shipment to Havre and then by an independent shipment from France to New York. No voluntary and unnecessary departure of the ship Homeric from the regular and usual course of the specified voyage insured was shown. The goods were not shipped in accordance with the declaration of the shipment, but were deliberately shipped from another port by another route which was not doviated from.

The plain purpose of the clause requiring the shipper to declare each and every...