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FORSTER v. INSURANCE CO. OF NORTH AMERICA

June 25, 1943

FORSTER
v.
INSURANCE CO. OF NORTH AMERICA



The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

This is an action brought by the plaintiff, to recover back premiums, voluntarily paid by the plaintiff to the defendant for insurance on shipments declared under an open marine cargo policy and an open war risk policy, which shipments, it is now claimed, were not in fact insured, because they were not within the coverage of the open policies.

The voyages have been terminated, the cargoes delivered, except the one that was lost, for which payment was made, and the policies cancelled about two years before this action was instituted.

 The plaintiff, in 1939, on his application, received from the defendant two open cargo policies, one insuring against marine risks, and the other against war risks.

 The policies constituted separate contracts, but the war risk policy covered only shipments which were insured under the marine policy, and it was therein agreed that "the description of such shipments, the valuation thereof, the designation of the overseas Vessel on which they are to be carried and of the ports of loading and discharge, as reported under the said Policy against marine risks shall be deemed incorporated herein."

 The marine policy, by its terms, insured "Merchandise consisting principally of fur cuttings."

 To bring any particular shipment within the coverage of the open policies, declarations were necessary.

 The open policies, as originally written, insured only merchandise shipped from ports and from places in the United States to ports and/or places in the United Kingdom and continent of Europe (excluding Russia).

 By rider, attached to the marine policy, dated January 2, 1940, it was provided: "Effective as to all shipments made on and after December 27th, 1939, it is understood and agreed that the trading limits in this policy are extended to include at and from ports and/or places in the United Kingdom and continent of Europe (excluding Russia) to ports and/or places in the United States."

 By rider, attached to the marine policy, dated June 18, 1940, it was provided "Effective as to all shipments made on and after June 15th, 1940, it is understood and agreed the trading limits in this policy are extended to include at and from ports and/or places in the United Kingdom and continent of Europe (excluding Russia) to ports and/or places in the United States and/or Canada."

 On October 17, 1939, by rider attached thereto, it clearly appears that the coverage of the war risk insurance policy was inferentially, if not directly, extended to imports into the United States.

 After the issuance of the open policies, and prior to their cancellation, the plaintiff, or persons authorized by him, filed with the defendant fifteen "applications" or "declarations" as to shipments on which plaintiff wished insurance.

 Two of these, the declarations being dated June 30, 1939, and July 7, 1939, respectively, described the shipments as fur cuttings, to be carried from New York to Paris and New York to London, respectively, and as to them, plaintiff does not now ask for recovery.

 As to the other thirteen, 10 declared merchandise consisting of "furs", or "raw furs" or "raw rabbit skins" or "raw squirrel skins" or "Persian paws" or "mink tails", and 3 declared merchandise consisting of ...


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