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BETESH v. FIRE ASS'N OF PHILADELPHIA

February 28, 1950

BETESH et al.
v.
FIRE ASS'N OF PHILADELPHIA



The opinion of the court was delivered by: NOONAN

The above entitled action having duly come on to be tried before this court and each of the parties having offered proof in support of his respective pleading, and due deliberation having been had, I hereby find and decide as follows:

Findings of Fact

1. That at all times hereinafter mentioned European Linen Importing Corporation was a domestic corporation.

 2. That on or about May 23, 1945, a certificate of dissolution of the said corporation pursuant to Section 105 of the Stock Corporation Law, McK.Consol.Laws, c. 59, was duly filed with the Secretary of State, and that Isaac Shalom and Isaac Betesh were appointed liquidating directors of the aforementioned corporation.

 3. That at all times hereinafter mentioned the plaintiffs were and still are citizens of the State of New York.

 4. That the defendant is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, and the defendant is duly licensed to do business in New York State and is doing business in the City and State of New York.

 5. That the amount involved in this controversy exceeds the sum of Three Thousand ($ 3,000) Dollars, exclusive of interest and costs.

 6. That on June 19, 1940, defendant issued its marine policy of insurance No. O.P. 708, whereby, in consideration of certain premiums agreed to be paid, it agreed to insure certain classes of shipments of merchandise made by European Linen Importing Corporation:

 'Against all risks of physical loss of or damage to the property insured from any external cause whatsoever, irrespective of percentage, excluding, nevertheless, all risks of loss or damage excluded by the F. C. & S. Warranty or the Strikes, Riots and Civil Commotions Warranty and excluding all claims for loss or damage caused by delay, deterioration or loss of market.

 'The risks of War and Strikes and Riots are covered only to the extent that they may be covered under the War, Strikes and Riots clauses endorsed hereon.'

 This marine policy contained the following f. c. & S. (Free of Capture & Seizure) Warranty: 'Warranted free from capture, seizure, arrest, restraint, detainment, confiscation, preemption, requisition or nationalization, and the consequences thereof or of any attempt thereat, whether in time of peace or war and whether lawful or otherwise; also warranted free from all consequences of hostilities or warlike operations (whether there be a declaration of War or not), piracy, civil war, revolution, rebellion, or insurrection, or civil strife arising therefrom.'

 7. That on June 19, 1940, defendant issued its war risk policy of insurance No. O.P.W. 708, which contained the following clause: '1. This insurance is only against the risks of capture, seizure, destruction or damage by men o war, piracy, takings at sea, arrests, restraints and detainments and other warlike operations and acts of kings, princes and peoples in prosecution of hostilities or in the application of sanctions under international agreements, whether before or after declaration of war and whether by a belligerent or otherwise, including factions engaged in civil war, revolution, rebellion or insurrection, or civil strife arising therefrom, and including the risks of aerial bombardment, floating or stationary mines and stray or derelict torpedoes; but excluding claims for delay, deterioration and/or loss of market, and warranted not to abandon (on any ground other than physical damage to ship or cargo) until after condemnation of the property insured. Also warranted not to abandon in case of blockade, and free from any claims for loss or expense in consequence of blockade or of any attempt to evade blockade; but in the event of blockade, to be at liberty to proceed to an open port and there end the voyage.'

 8. That clause 2 of the war risk policy contains the following Frustration Clause: '2. Warranted free from any claim based upon loss of, or frustration of, the insured voyage or adventure caused by arrests, restraints or detainments.'

 9. That clause 4(c) of the war risk policy provides that the insurance shall not attach to the interest insured thereunder at a port or place of transhipment to another overseas vessel after expiry of fifteen days (counting from midnight of the day on which the ...


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