Merchants & Shippers Insurance v. St. Paul Fire & Marine Insurance

Headnote

Insurance (marine) — action to recover on contract of reinsurance — defenses of failure to disclose material facts and of false representations.

Merchants & Shippers Ins. Co. v. St. Paul F. & M. Ins., Co., 219 App. Div. 636 , affirmed.

Appeal from a judgment, entered March 14, 1927, upon an order of- the Appellate Division of the SupremCourt in the first judicial department, reversing a judge ment in favor of plaintiff entered upon a verdict directed by the court and directing judgment in favor of defendant. The action was to recover on a contract of marine reinsurance, “ warranted free from particular averages unless the vessel or craft be stranded, sunk or burnt.” The defenses were that the plaintiff had failed to disclose to defendant the nature of the goods, or the fact that the vessel had sailed on December 13, 1919, the application for reinsurance not having been made until January 2, 1920; that there had been no disclosure of the presence in the original insurance of a twenty-one-day prolongation of voyage clause, which was an unusual clause and not customarily annexed to policies of marine insurance; that the defendant had not known of the foregoing facts at the time it approved the terms of the compromise between the insured and the plaintiff, but that the plaintiff had made false representations to the defendant that the ship had stranded and had been on fire, and had thereby led defendant to believe that the warranty contained in the contract of reinsurance “ free from particular average unless the vessel or craft be stranded, sunk or burnt * * * ” had been opened.