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DEROSE v. ALBANY INS. CO.

June 17, 1992

JOHN DeROSE t/a SUPER FISHALL, INC., Plaintiff,
v.
ALBANY INSURANCE COMPANY, et al., Defendants.



The opinion of the court was delivered by: GARRETT E. BROWN, JR.

 BROWN, District Judge

 This matter comes before the Court on motion by the defendants for summary judgment. For the following reasons, defendants' motion is granted and plaintiff's complaint will be dismissed in its entirety. *fn1"

 FACTUAL BACKGROUND

 The following material facts are undisputed. Defendant, the Albany Insurance Company ("Albany"), issued a named perils policy of hull, protection and indemnity insurance with endorsements and warranties, number 8H20921, for the vessel Spray III and Super Fishall, Inc., for the period May 16, 1990 to May 16, 1991. That policy of insurance contained a machinery endorsement which provided:

 Warranted not liable for loss or damage to machinery and appurtenances unless directly caused by stranding, sinking, fire or collision with another vessel, except to the propeller and propeller shaft.

 Kenny Aff., Ex. 2. Thus, damage to the vessel's machinery or appurtenances is not covered under the policy unless it is caused by stranding, sinking, fire or collision with another vessel.

 On or about May 15, 1991, the vessel Spray III, while engaged in fishing in the Atlantic Ocean off the coast of Belmar, New Jersey, sprung a leak in her forward compartments. Thereafter, the vessel took on water up to a level located approximately mid-way up the engine block in the engine compartment. The lazarette compartment situated aft remained intact and watertight, keeping the vessel afloat. Plaintiff was able to raise the anchor, start the engine, and bring her to a position some 200-300 yards off Bay Head.

 There, the United States Coast Guard responded and using portable pumps commenced pumping water from the vessel. After the ingress of water was stabilized, Sea Tow, a private company, towed the vessel to Belmar Marine Basin where she was tied afloat alongside the dock. Subsequently, the vessel was towed to Yank's Boat Yard and hauled. The vessel was placed in storage where she remains today.

 Plaintiff sued in Superior Court, under the above policy, alleging that the vessel struck a submerged object, resulting in partial submersion and substantial property damage. Defendants thereafter removed the action to this Court based upon diversity of citizenship. See 28 U.S.C. § 1441(a).

 DISCUSSION

 Summary judgment may be granted only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The nonmoving party receives the benefit of all reasonable doubts and any inferences drawn from the underlying facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Fed. R. Civ. P. 56(e) also requires that when a nonmoving party bears the burden of proof at trial as to a dispositive issue, that party is required to go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. Celotex Corp., 477 U.S. at 324. For an issue of fact to be genuine, the nonmoving party must do more than simply show that there is some metaphysical doubt as to the material facts. Matsushita, 475 U.S. at 586. Issues of material fact are genuine only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A nonmoving party may not rely on allegations without factual support. See Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990).

 In support of their motion, defendants argue that the vessel did not "sink" as that term is used in the insurance policy. *fn2" Plaintiff does not dispute that the vessel did not "sink," but rather claims that it was "sinking" when the damage occurred.

 The policy does not define the term "sinking." Instead, defendants rely on the definition of sink contained in Webster's Dictionary, various authorities on marine insurance who have defined that term, and several cases dealing with ...


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