Hyperlawhypertext legal database Van Wickle v. Mechanics' & Traders' Insurance 48 N.Y. Super. Ct. 95

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Van Wickle v. Mechanics' & Traders' Insurance

48 N.Y. Super. Ct. 95 16 Jones & S. 95 Court N.Y. Super. Ct. Decision date 1882-02-06 English

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p. 95
SIMON VAN WICKLE, et al., Appellants, v. THE MECHANICS’ & TRADERS’ INS. Co., Respondent.

Headnote

Marine insurance —implied warranty of seaworthiness—evidence of unseaworthiness.
That a canal-boat, upon arrival in port, after a voyage of forty-eight hours, without having encountered storm, stress of weather or other peril of the sea, in fine weather and smooth water, and though properly loaded, suddenly sank at her dock without apparent cause, and in such a way that in going down she looked as if she broke in two, is presumptive evidence of unseaworthiness at the time of sailing.
Rogers v. Sun Mutual Ins. Co. (46 Super. Ot. 65), followed as to • implied warranty of seaworthiness by effecting insurance, etc.
Before Freedman and Russell, JJ.
Decided February 6, 1882.
Appeal by the plaintiffs from judgment dismissing the complaint with costs.
The facts appear in the opinion.
L. Laflin Kellogg, for appellants.
Stanley & Clarke, attorneys, and Stephen G. Clark, of counsel, for respondent.

The action is on a policy of insurance upon a cargo of coal shipped on board of the canal-boat W. S. Storms, from South Amboy, N. J., to New York city. The defense is unseaworthiness. That the assured, by the mere fact of effecting an insurance upon ship, freight, or cargo, and independently of the particular terms used, impliedly warrants that the ship is at the commencement of the voyage seaworthy; that this warranty is. a condition precedent to the policy attaching ; the extent of the warranty; the standard of seaworthiness—all. these questions have been so fully examined and discussed

p. 96
in Rogers v. Sun Hut. Ins. Co. (46 Super. Ct. 65), that a bare reference to that case is all that is necessary here. The case' at bar falls within the rule as there laid down.

Upon the question of seaworthiness the evidence shows that the vessel, after a voyage of about twenty-four or forty-eight hours only, and after her arrival at this port without having encountered any storm, stress of weather or other peril of the sea which might furnish an explanation, in fine weather and smooth water, and though properly loaded, suddenly sank at her dock without any apparent extraneous cause, and in such a way that in going down she looked as if she broke in two. This was presumptive evidence of unseaworthiness at the time of her sailing (Wright v. Orient Mut. Ins. Co., 6 Bosw. 269 ), and the plaintiffs having failed to give any proof showing seaworthiness, the complaint was properly dismissed.

The judgment should be affirmed with costs.

Russell, J., concurred.

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