The stipulation of warranty contained in the policy that the boat is “ to be securely moored in a safe place satisfactory to this Company,” is to be construed in connection with other provisions in the policy. The defendant was expressly exempted from liability for unseaworthiness or from “ any neglect in not keeping the vessel well pumped out,” and the duty was also imposed upon the insured that the vessel should “ be tight.” There was the further provision that it was incumbent upon the insured “ to sue, labor and travel for, and. to make all reasonable exertions in and about the defence, safeguard and recovery of the said vessel or any part thereof, without prejudice to this insurance.”
That is, inasmuch as the insurance extended to other losses than by fire, the .company required the insured to use prudence and caution in keeping his vessel in a seaworthy condition.
The boat was moored at Erie basin on the tenth of December, and it was loaded with corn. In February it was leaking badly and sixty bushels of corn were spoiled, and the captain of the boat, therefore, removed it to Morris basin, unloaded his cargo and returned to the Erie basin. We apjiréhend this removal of the boat did not vitiate the contract of insurance. The courts will not put that interpretation upon an agreement which will result in a forfeiture, unless no other construction can be fairly spelled out of its terms. Two things the owner of the boat desired to do:
First. To get rid of his corn which was being damaged, and, second, to repair the boat. Had he allowed the boat to remain moored at the Erie basin and sink or become unseaworthy he very properly would have been charged with negligence. It certainly was a question of fact whether under all the circumstances this was a proper exercise of the care required of him.
The vessel continued to leak during the winter and the owner endeavored to stop it by caulking, but the leaking increased until *327about the tenth of March it grew more apparent. He, therefore, took his boat again to Morris basin at Lawless’ dry dock, about two miles from where it was moored, to have it repaired. The repairs were made and he went to another dock close at hand and took on two tons of coal to enable him to get back to the Erie basin. He there discovered' that the stay bolts had been wrenched out and to repair these it was necessary to go where there was a machine shop. His pilot arranged to have this done at Burlee’s dry dock, four miles farther down. He started for that place, stopped over night at Bayonne, where the fire occurred. Before leaving Erie basin he endeavored to get into a dry dock in that basin to have his boat repaired, but was unable to do so. Again I think it was a question of fact whether he acted properly and within a fair endeavor to repair his boat. Irrespective of any provision in the policy this duty was incumbent upon him. ( Union Insurance Co. v. Smith, 124 U. S. 405, 427; Berwind v. Greenwich Ins. Co., 114 N. Y. 231, 234.) He could not sit by and allow his boat to sink through his own carelessness and then hold the defendant liable on its policy.
It is suggested that New York harbor is filled with floating ice in the month of March and the risk was consequently increased. Loss from ice the defendant by its policy is expressly relieved from.
It is contended that the real reason for the owner of the boat leaving Erie basin was to fulfill a contract to take a load of merchandise to Carteret, N. J. This was a question of fact and the evidence fully justifies the conclusion of the court adversely to this suggestion. Lewis, the owner of the boat, testified to the reason which induced him to go to Lawless’ dry dock. He further testified that it would take twelve tons of coal to make the trip to Carteret; that he had not taken on sufficient provisions or engaged any crew for this trip. This is corroborated in a measure by the evidence of the pilot, who testified that after he reached Lawless’ dry dock and discovered the serious in jury to the boat he called up. the proprietor of Burlee’s place and arranged to have the boat repaired at that dock. The evidence, therefore, is quite clear that the motive of the owner of the boat in leaving the Erie basin was to mend its leaky condition.
The evidence clearly shows also that the owner of the boat was not seeking to spirit it away without the knowledge of the defend*328ant. The insurance had been obtained through a Mr. Reddy who occupied the same office with the defendant. Reddy delivered policies and received premiums on behalf of the defendant, and the dealings of the owner of the boat were chiefly with this insurance agent, and that seems to have been true largely of boat owners, Reddy was notified of the condition of the boat and advised that it be removed and repaired. While this may not strictly be held within the terms of the policy a notice to the defendant, it does take the sting out of any criticism upon the motive of the boat owner.
I think the judgment should be affirmed, with costs.
Williams, J., concurred.
. Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon .questions of law only, the facts having been examined and no error found therein.