The opinion of the court was delivered by: LEVET
This is an action by an insured for a loss under a marine open cargo policy of insurance. Prior to the commencement of this action the defendant paid to the plaintiff $ 52,000 which was the invoice amount of the shipment here at issue. Plaintiff seeks in this action to recover the cost of freight plus an additional 10% allegedly due as a result of said loss.
After hearing the testimony, examining the exhibits, the pleadings, briefs and proposed findings, this court makes the following Findings of Fact and Conclusions of Law:
1. The plaintiff, Purofied Down Products Corp., is a corporation duly organized and existing under the laws of the State of New York, with its office in the City of New York.
2. The defendant, The Travelers Fire Insurance Company (sometimes also referred to as the 'insurance company') is a corporation duly organized and existing under the laws of the State of Connecticut and authorized to carry on the business of fire insurance in the State of New York.
3. Plaintiff is in the business of importing feathers and downs and processing them for use and manufacture of pillows, comforters and sleeping bags.
4. On or about November 28, 1949, the defendant made and issued to the plaintiff through plaintiff's broker, Buhler Service Corporation (hereinafter called 'Buhler'), defendant's open marine policy No. MOC 1208. (See Exhibit 1, which is the contract produced by plaintiff)
5. Paragraph 16 of Policy No. MOC 1208 provided that the policy was deemed continuous and to cover and attach on all goods shipped on and after November 28, 1949, and was to continue in full force thereafter until cancelled by either party giving the other 30 days' written notice, such cancellation, however, not to prejudice any risk in transit at the termination of that period.
6. Policy MOC 1208 contained an endorsement effective as of February 13, 1951, whereby the defendant's limits of liability under the policy were in creased to not more than $ 200,000 for loss on any one vessel or conveyance or in any one place at any one time, but in respect to shipments on deck the defendant's liability was increased to not more than $ 20,000 for goods so carried on deck of any one vessel. (Exhibit 1)
7. Policy MOC 1208 was not cancelled by either party at any time between November 28, 1949 and July 18, 1952. (See pleadings)
8. Policy MOC 1208 set forth, among other things, that the defendant agreed to insure plaintiff against loss by fire of plaintiff's goods and merchandise, consisting principally of feathers in compressed bales, which were being transported by boat from European countries, excluding Russia, to United States Atlantic ports north of Cape Hatteras.
9. Paragraph 7 of said Policy No. MOC 1208 was as follows:
'Valued premium included, at amount of invoice including all charges therein, plus any prepaid and/or advanced and/or guaranteed freight not included in the invoice, plus 10%, foreign currency to be converted into dollars at bankers' sight rate of exchange applicable to each invoice and/or credit and/or draft.'
10. Paragraph 26 of said policy was as follows:
'(A) It is a condition of the liability of this Company that all risks hereunder be reported as soon as known to the Assured and amounts declared as soon as ascertained; and should the Assured fail to report risks covered hereby, then this Policy as to all subsequent risks, shall become null and void if this Company shall so elect;
'(B) The Company is entitled to premiums, at rates of this Company, on all risks covered herein whether reported or not;
'(C) This Company shall have the privilege, at any time during business hours, to inspect the records of the Assured as respects shipments coming within the terms of this Policy.'
11. Paragraph 27 of said policy was as follows:
'It is a condition of this Policy, and it is hereby agreed, that the Assured's brokers, Buhler Service Corp. or any substituted brokers, shall be deemed to be exclusively the agents of the Assured and not of this Company in any and all matters relating to, connected with or affecting this insurance. Any notice given or mailed by or on behalf of this Company to the said brokers in connection with or affecting this insurance, or its cancellation, shall be deemed to have been delivered to the Assured.'
12. Policy No. MOC 1208 provided that the rates of insurance per $ 100 for shipments carried below ship deck from Holland, Belgium and France to United States ports north of Cape Hatteras was .125. Said rates related to shipments of feathers in compressed bales while being transported in metal steamers full powered motor vessels of Class A lines per the defendant's specifications. (Exhibit 1)
13. The original and one copy of the policy were delivered by the defendant to plaintiff's agent, Buhler. Buhler sent the original to the plaintiff. This original was produced at the trial by the plaintiff. (Exhibit 1)
14. On or about January 15, 1952, defendant sent a letter to Buhler, which Buhler received on or about said date, enclosing an endorsement effective as to all shipments after February 15, 1952, to be incorporated in the open marine policy MOC 1208, heretofore referred to. (See Exhibit J)
15. Upon receipt from the defendant of said letter of January 15, 1952 (Exhibit J), Buhler sent plaintiff a letter dated January 21, 1952, enclosing the endorsement received from the defendant. (Exhibit J-1)
16. The endorsement Buhler received from the defendant, as aforesaid, reads in part as follows:
'Effective as to all shipments made on and after February 15, 1952 this Policy is amended as follows:
'No suit or action for recovery of any claim arising under this Policy shall be sustainable in any court unless such suit or action shall have been commenced within 12 months next after notice to the consignee of the arrival of the shipment.' (See Exhibit I)
17. During the period of this policy the plaintiff customarily filled out declarations and mailed them to Buhler, who had instructed plaintiff how to fill them out. The forms came through Buhler's ...