Smith v. Switzerland General Insurance Co. of Zurich

The policy of insurance at bar permits a recovery for loss or damage “ through negligence or error in judgment of engineers or employees ” of the carrier vessel. Negligence here, if any, is the failure to perform a duty, on the part of the carrier’s engineer or employees, in keeping the fruit refrigerated at an improper temperature, thus permitting it to rot. The negligence must be measured by the duty. The duty, regardless of the carrier’s obligations under the contract of carriage, was to keep the fruit under a proper temperature. Though there is no such duty at common law, the carrier had…