
    Loren E. Huntley, Respondent, v. Providence Washington Insurance Company, Appellant.
    
      Ma/rine insurance — when a “vessel is 'not lying between piers.”
    
    A clause in a policy of marine insurance exempting the insurance company from liability for damages occasioned by ice, “except when the vessel is lying between piers,” is designed to relieve the company from liability for damages thus occasioned except when the vessel is lying between two piers so contiguous to each other as to furnish shelter to both sides of the vessel; and if the vessel be injured by ice while lying at the south side of a pier, when the next pier southerly is nearly a half mile away, the insurance company is not liable for such injuries.
    Appeal by the defendant, the Providence Washington Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of March, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the llth day of March, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      La Boy S. Gove, for the appellant.
    
      James K. Symmers, for the respondent.
   Hatch, J.:

This action is brought to recover upon a marine policy of insurance, issued by the defendant upon the steam canal boat W. E. Witter against loss by reason of marine peril. The policy was issued on the 1st day of September, 1898. By its terms it provided that the vessel should be securely moored in a place satisfactory to the company between noon on the tenth day of September and noon on the first day of April following the issuance of the policy, the company to be notified as to the time when and the place where it was to be laid up. There was some modification of this policy, as was conceded upon the argument, whereby the boat was authorized to be navigated during the prohibitory season, but no liability was to attach to the defendant company for any damage inflicted by ice when being so navigated. The liability of the company in this regard was concededly limited to a case “ from damage in consequence of ice, except when the vessel is lying between piers.” The proof disclosed that the boat was navigated to the pier of the General Chemical Works, located at Shady Side on the New Jersey shore of the North river, where she was engaged in receiving cargo. She remained at the end of the pier while the tide was at flood. When the tide began to ebb the plaintiff loosened the boat and swung her around to the south side of the pier, and while lying in this position in the early morning she was struck by a cake of ice upon the port side, receiving injuries from which she sank. The only question to be determined is, was the boat, at the time when she was struck by the ice, located in a place where liability for injuries therefrom would attach, or, in other words, did the place where the boat was lying bring her within the excepted clause of the policy, so that liability attached for damage occasioned by ice ?

It was undisputed that the first pier south of the chemical works5 pier, where the boat was lying, was distant by actual measurement 2,200 feet. Between these points there were two projections from the shore into the river, but it was not claimed that these projections constituted piers within the meaning of the policy. A case was, therefore, presented where the court was called upon to determine whether a boat lying between piers so situated is within the exception contained in this policy. There is no proof in the case showing, or tending to show, any practical construction of the language of the policy in this respect either by custom or otherwise. The question presented, therefore, became one of law for determination by the court and not by the jury, as a case was not presented where conflicting inferences could be drawn from the proofs submitted.

If, however, the interpretation of the contract by the jury was the proper one, the defendant could not complain, as the result would be the same had the court construed it in like manner; consequently, it would not be aggrieved by the judgment entered thereon. By the terms of the policy the defendant did not assume liability for damage inflicted by ice when the boat was being navigated. What it sought to secure was a reasonably safe place for the boat when it should be laid up, and its liability was conditioned thereon. By the terms of the policy the boat was authorized to be navigated between Philadelphia, Baltimore and New York. If she lay at any time at one side of a pier between these points in a sense, ■and as a physical fact she would be lying between piers, even though they were miles apart. In the present case the boat was lying between piers which were separated by nearly half a mile. If the policy be construed as contemplating piers situated long distances apart, then it would necessarily follow that the boat might lie midway between such spaces, although at the time when so fastened or anchored she would be as liable to injury from ice as though there were no piers on either side. Such a construction of the clause in ■question would furnish no protection to the insurer whatever, and -the exception which it made would be absurd and meaningless. It as manifest that such construction cannot obtain, as its effect would be to furnish no exemption at all from liability on account of ice, and evidently these parties did not contemplate that such were the terms of the contract. By a reasonable construction of the clause in question it seems to have been intended that when the boat was tied up it should be so situated as to receive shelter from piers upon -either side. The physical condition required that the boat should be protected upon one side as well as the other, for as the tide flowed and ebbed the boat would be subject to peril from one side or the «other, and when the tide flowed or ebbed upon the exposed side of the boat a pier situated 2,200 feet away would furnish no protection whatever from such danger, and if anchored midway between piers miles apart no shelter to either side would be obtained. The primary purpose was to secure shelter for the boat when liability attached. Manifestly such a condition was within reasonable contemplation, and in order to secure it, it would be necessary that the piers be so contiguous to each other as to furnish such shelter to both sides of the boat. It is probably true that the distance which might separate the piers and still furnish shelter would be somewhat elastic and be determined by existing conditions. A case may arise where a question of fact would be presented as to whether the piers between which the boat laid were within the -contemplation of the policy, and reasonably furnished the protection for which the contract stipulated. Piers, however, so situated ;as to be useless in protection of the boat are in no sense within the terms of this policy. In the present case there was no protection whatever against floating ice from the pier to the south of where the boat laid. Consequently, at the time she received the injury, she was not within the exception contained in the policy, and, therefore, no liability attached thereunder for the injury which she received.

It follows from these views that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

'Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  