#### Thomas J. McNally, Plaintiff, *v.*The Insurance Company of North America, Defendant.

(Supreme Court, Ulster Special Term,

March, 1900.)

Shipping — Perils of the sea — Destruction of a canal-boat from its malposition, on the bottom of a tidal harbor, caused by the action ef a stream running into the harbor.

Where the action of a fresh water stream constantly running into a tidal harbor causes a seaworthy canal-boat, moored by its owner for the first time at a dock in the harbor for discharge of its cargo of *62sand, to lean over towards the stream, after taking the bottom at night on the ebb-tide, and the sand remaining undischarged is shifted by such leaning over and the boat is thereby wrenched and strained beyond repair, the loss is within the perils of the sea insured against, and the insurer’s contention that it was the result of natural wear and tear is not maintainable.

Aotioe on a marine insurance policy.

Hasbrouck *&*Gill, for plaintiff.

Black *&*Kneeland, for defendant.

Betts, J.

This is an action brought on a marine insurance policy.

The plaintiff was the owner of the canal-boat A. *&*G. Rathgeber, which was insured by the defendant.. The boat was subsequently wrecked.

The defense is that the boat was injured and sunk by natural wear and tear, and not by the perils of the sea, or any of the perils insured against by the policy.

The facts are substantially as follows: The boat was insured for general freighting business in the navigation of certain waters in and about the city of Rew York. On or about the 18th day of October, 1898, the following indorsement was made by the defendant and attached to the policy of insurance: “ Canal-boat A. & G. Rathgeber. Privilege is hereby granted the above-named boat to make one trip to Glen Cove Bay and return, with privilege to discharge cargo at Hamaroneck, Rew York.”

The plaintiff with his boat secured a cargo of sand at Glen Cove Bay and returned to Hamaroneck, reaching there about four o’clock in the afternoon, and the boat was made fast to the dock or wharf at that place. Hamaroneck is a tidal harbor. A portion of the cargo of sand was taken off that night, work thereon being continued until about six o’clock. At about six o’clock, the plaintiff left his boat, returned again about ten o’clock, and went to bed on the boat: At that time the boat had taken the bottom on the falling of the tide. At about twelve o’clock he heard the boat creaking, but did not arise, and about six o’clock in the morning, found that the boat was full of water. The boat remained on the bottom until her *63cargo was discharged, and was then raised and taken to Hoboken or Jersey City, where it still lies, a wreck.

The testimony of the plaintiff, which is not contradicted, is, that at the dock at Mamaroneck, and about eight feet therefrom, there was a little gully about six feet wide, which had a running stream of water in it all the time, about three feet deep, no matter how low the tide was. After the tide went out, one-half of the boat, in width, was on the bank of this stream alongside the wharf, and the other half was over the stream on the aft side. The result of the tide leaving the boat was that the boat took the bottom in a malposition, the sand shifted to the aft side, and the boat shifted and leaned over to that side and was injured so that it was not worth repairing.

The plaintiff who was in charge of his own boat had never been at Mamaroneck before.

He knew, however, that it was a tidal harbor, but did not know of the existence of this small stream of water near the dock, nor anything about the condition of the bottom upon which the boat would rest.

The testimony is that the boat had been recently repaired and was seaworthy. There is no testimony tending to show unseaworthiness on her part.

The question before me is whether the loss in "the manner generally described above is a loss by one of the perils insured against. The defendant claims that it is not, that a boat entering a tidal harbor expects to take the bottom, and any damage that results therefrom is the natural wear and tear of the boat unless some storm, gale of wind or some fortuitous accident intervenes. While the plaintiff concedes the general rule to be as claimed by the defendant, he yet claims that the taking of the ground by the boat in the manner described was such an accident as brought it within the conditions of the policy.

I think the contention of the plaintiff is right and that the taking of the bottom in this tidal harbor, in the manner taken by this boat, was a loss within the perils insured against by this policy.

It was held in the case of Potter v. Suffolk Ins. Co., by Judge Story, in 19 Fed. Cas. 1186, that the underwriters on the common policy of insurance are liable for all accidents arising from all extraordinary circumstances, and not from the inherent weakness of the vessel. That was a case in which the brig Ben*64jamin Buggies, from Hew York, was taking a cargo at the harbor of Hewport, in England, which was a dry or tidal harbor, the tide rising and falling about thirty feet; the bottom, at the wharf, consisted of soft mud of several feet in thickness, resting on a stony bottom, commonly called “ shingles ”. After lying there several days it was found that the brig had sprung a leak and was damaged and the cause for the leakage or damage was not clearly defined. The boat was repaired and proceeded on her voyage, and some time after, an action was brought against the insurance company for damages sustained there. The insurance company there, as here, insisted that if the boat was damaged at that place it was the ordinary wear and tear to be expected of the boat, taking the bottom in a tidal harbor. The surveyors, called to examine that boat, reported the nature of her damage and that it was “ sustained by the said vessel lying badly on the ground The court held, *“*My opinion upon a full survey of the evidence is, that the loss is not attributable to any inherent-weakness of the vessel, but is attributable to other extraneous and extraordinary causes, such as striking some hard substance, or malposition, or bad taking of the ground, or overlaying the dock. If attributable to any such extraneous and extraordinary cause, taking effect by reason of the ebbing of the tide, it is in my judgment a loss by perils of the sea, for which the underwriters are responsible ”,

It will be noted that this case is not so strong as the one at bar, for the reason that the court does not undertake to say, nor does the 'evidence disclose what particular cause. of several causes did the injury, while in this case it is apparent that the damage to the boat was done by the malposition in which she took the ground occasioned by the gully or stream of water flowing in the peculiar position that it did. near the dock or wharf at Mamaroneck.

This case (Potter v. Suffolk Ins. Co.) is followed in Hagar v. New England Mutual Marine Ins. Co., 59 Me. 463; the court- holding that- “ All ships moored in tidediarbors are liable, as the tide ebbs, to take- the ground in a mal-position, or to strike their bottoms against some hard substance, and to be thereby injured. , This danger constitutes one of the perils of the sea for which underwriters are responsible

The principal case (Potter v. Suffolk Ins. Co.) is also quoted with approval in Pennsylvania R. R. Co. v. Manheim Ins. Co., 56 Fed. Repr. 301. In that case a lighter in the employment of the plaintiff grounded upon a shoal in a slip *65at Jersey City, striking, in taking the ground, a log, the existence of which was unknown, which stove a hole in the bottom of the lighter, from which, subsequently, the lighter careened over, dumping part of her cargo overboard.. There the insurance company claimed, among other defenses, that the loss did not arise through any peril of the sea covered by the insurance policy, and the court held: “ The first ground of defense evidently cannot be sustained. The loss was damage by sea water, arising, not in the ordinary course of grounding in the slip, but from careening consequent on the settling of the boat upon a dangerous log, not before known. This was an accident, such as occasionally arises in the ordinary handling of lighters in the harbor, in course of transit; and in such transit as was contemplated both by the policy and by the bill of lading. Upon a loss happening in that way, it makes no difference, as between the insurer and the insured, whether the original grounding and settling on the log was by some one’s negligence, or without negligence. The immediate and proximate cause of the loss as between the insurer and insured was a sea peril, covered by the policy”. See, also, Petrie v. Phenix Ins. Co., 132 N. Y. 137, where a canal-boat took the ground when the tide went out, and was injured. The court held that the loss was within the perils insured against.

An English case of Magnus v. Buttemer, 11 C. B. 876, is claimed by the defendant to be authority for holding that this loss here is not within the perils insured against. I think that case is easily distinguishable from the one at bar. There the vessel was moored at a beach which was hard, shingly and steep. The vessel was there several days, and there was no accidental or unforeseen taking of the ground upon the tide receding, and the boat at each time floated upon the return of the tide. In that case the court held that whatever damage was sustained by the boat, was the natural wear and tear. In any event this case was an English case, and the rule does not seem to have been carried in this country to the extent claimed by the defendant here.

I conclude, that this was a loss within the policy, and findings may be prepared accordingly.

Ordered accordingly.