The opinion of the court was delivered by: CANNELLA
The instant admiralty and maritime claim was commenced in September 1971 by the plaintiff, Alexander J. Sipowicz, against the defendant insurers to recover $20,000 arising out of the sinking of the yacht GREEN LION on May 14, 1970. Plaintiff asserts that the loss resulted from a peril insured against by the terms of the time hull policies issued by the defendants and that, therefore, he is entitled to recover damages. Defendants take the position that the sinking was of a nature not embraced by the provisions of the policies and, therefore, that they are not liable to plaintiff herein. The case was tried before this court, without a jury, on November 2 and 14, 1973. At trial, three witnesses were called and gave testimony and certain additional documentary evidence was received. For the reasons set forth below, the court finds for the defendant insurers and grants their motion for judgment dismissing the complaint, with prejudice.
The GREEN LION, a wooden auxiliary cutter (sloop) of some 50 feet in length, built in the Netherlands in 1943, was purchased by plaintiff from a Mr. Paul Gabel in the spring of 1966. At the time of purchase plaintiff sought to insure the vessel with Lloyd's New York broker, Mr. Gilbert Fonda. In order that the insurance issue, plaintiff caused a condition survey of the yacht to be made. The survey was conducted on April 17, 1966, by the Salvage Association of London and a survey report, No. 22539, was subsequently issued. That report listed 41 specific recommendations for repairs to be made on the vessel. Among the items listed was the repair or reconditioning of certain deteriorated, missing or broken metal fastenings and frames. At trial, plaintiff testified that all work recommended by this survey was performed in 1966, either by the Tri-Boro Shipyard or by the plaintiff, his friends and his family. Thereafter, on June 24, 1966, defendants issued to plaintiff two time hull insurance policies for the GREEN LION, which policies were made subject to the terms and conditions of the American Yacht Form and which insured the vessel against named perils only. The policies were valued at $15,000
and were renewed annually by plaintiff, the last renewal, Cover Note No. T.42471, being in full force and effect at the time of the instant loss.
The GREEN LION was launched in June 1966, several days prior to June 24th, and was sailed without incident during that entire summer. At the close of the 1966 sailing season the vessel was towed to the Little Ferry Marina, located on the Hackensack River in New Jersey, where it was hauled and laid-up ashore on a crib (dry docked).
From the fall of 1966 until May of 1970 the yacht remained ashore, on the crib, for reasons not here relevant. Prior to re-launching the boat in 1970 plaintiff, his family and friends, performed certain work on the GREEN LION's hull. These efforts included scraping off the old paint and repainting the hull, caulking the hull, and replacing planks where such re-planking was indicated.
On May 3, 1970, the vessel was taken to the launching slip at the Little Ferry Marina and placed upon a travel lift for launching. After the boat was placed in the water, a leak developed along the bottom seam of the hull next to the keel. In order that this leak might be observed, the yacht was allowed to remain on the slings of the travel lift overnight. On May 4, the GREEN LION was hauled and the vessel's leaking seam was cleaned and re-caulked. The vessel was then re-launched and moved to a dock 100 feet from the launch slip, where it remained until May 9. On May 9 the yacht was moved, under its own power, to a mooring two and one-half miles away, where it remained until May 13. Between May 4 and May 13 it was observed that the vessel was continuously leaking at various points along the bottom seam. Plaintiff testified that such leaking was a normal condition of a wooden boat until the seams swelled to a sufficient degree. Plaintiff did, however, attempt to plug this leak with cotton during the three days the boat was at the mooring.
On May 13, the leak not having subsided, plaintiff returned the GREEN LION to the Marina so that she could again be hauled and the hull investigated in order that the cause of the leak might be determined. Plaintiff testified that upon returning the vessel to dock at the Marina on the night of the 13th, he secured her, checked the bilge pump, (the pump had controlled the water entering the hull throughout this period) and closed her for the night. On the afternoon of May 14 it was discovered that the GREEN LION had sunk at her berth.
Following the loss of the vessel plaintiff obtained several salvage bids and ultimately the Little Ferry Marina was retained to raise the boat. A diver was sent down by the salvager in order to ascertain the vessel's condition and to close all her openings. On May 22 three pumps were attached to the boat and she rose 18 inches in the water. The vessel then stopped rising when water began to enter her in the keel area. The salvage operations ceased and subsequently, with a sudden movement, the GREEN LION's keel and keelson broke away from the hull. Ultimately, the salvager succeeded in raising the yacht, minus keel, keelson and the two lower planks on each side of the hull, and in laying her up on shore.
It is evident, indeed not disputed, that the GREEN LION sank due to the incursion and accumulation of water in her hull during clear weather and upon calm seas. In dispute is the cause of this condition. Plaintiff contends that the cause of the sinking is unknown and that the vessel's demise was the product of an unforeseen and unforeseeable accident to an otherwise seaworthy vessel. The defendants assert that the GREEN LION sank because of her inherently defective and unfit condition. In support of this position the insurers introduced the expert testimony of Mr. Nicholas Ryder.
Mr. Ryder, a marine surveyer with over 45 years of experience, was retained by defendants to survey the vessel and he first observed the vessel when it was submerged, on May 15. He later surveyed the vessel on May 25, after it was laid up on shore. Mr. Ryder testified that his expert opinion was that the sinking of the yacht was caused by a separation of the keel and keelson from the rest of the hull and that this separation was of such a degree as to allow the incursion of water in a quantity sufficient to cause the boat to submerge. He attributed this separation to the vessel's metal fastenings which secured the keel and keelson to the hull and which had, in his opinion, deteriorated from their original thickness of 3/8 of an inch to 1/16 of an inch, or to "the point of no return."
Mr. Ryder further stated that plaintiff's attempt to plug the leak from the inside of the hull only served to further pry the keel and keelson from the vessel. He stated that the keel and keelson had broken away from the hull during the attempt to raise the GREEN LION because the deteriorated fastenings were not capable of supporting the 7 ton lead keel and that they were sheared off under its weight. He concluded that the keel's dropping off was inevitable because a 7 ton keel could not be supported by fastenings in so deteriorated a state.
Mr. Ryder based his opinion upon a visual inspection of approximately 50 percent of the fastenings involved; those that remained after the vessel was raised. He found that they had not been repaired, replaced or restored in compliance with the 1966 survey. He observed no new bolts, no new steel for the assisting frames and discoloration in the areas he inspected, (in short, no new work). Plaintiff, on the other hand, had previously testified that he had scraped the angle iron frames down to the bare metal, checked the bolts and fasteners, changed the fastenings wherever necessary, and painted the frames with red lead anticorrosive paint. Other than plaintiff's own statement, no evidence was introduced to rebut Mr. Ryder's testimony.
After a careful review of the testimony and exhibits in this case, the court finds that plaintiff insured's yacht, the GREEN LION, sank on May 14, 1970, at its dock at the Little Ferry Marina, in clear weather and upon calm seas, and that the sinking was caused by the incursion and accumulation of water in her hull. The court further finds that the incursion and accumulation of water in the hull resulted from a separation between the keel and keelson and the remainder of the hull, which separation was the direct and proximate consequence of the deteriorated condition of the fastenings and frames which secured the keel and keelson to the rest of the hull. The court finds that these metal fastenings, which were originally 3/8 of an inch in thickness when the vessel was constructed and which had deteriorated to a thickness of 1/16 of an inch at the time of the loss, were not capable, either alone or in conjunction with the other parts of the vessel, of supporting a 7 ton lead keel and that the separation of the keel and keelson from the rest of the hull was an inevitable consequence of this condition.
Plaintiff, in order to recover damages herein, must demonstrate that the loss which he has sustained is encompassed within the purview of one or more of the perils insured against by the defendants. To this end plaintiff here asserts that the sinking of the GREEN LION resulted from either a "peril of the sea" or a latent defect, and that, therefore, his losses are recoverable either under the "Perils" or the "Inchmaree" clause or both such clauses of the instant policies. Such clauses, as contained in the defendants' policies, are standard in form and are set out in the margin.
On the facts of this case and for the reasons ...