Hanover Fire Insurance Company v. Harold W. Holcombe

223 F.2d 844

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 5, 1955
• Docket: 15406
• Status: Published

Opinions

HUTCHESON, Chief Judge.

Alleging that the vessel Doromar had been insured by the defendant against loss by fire, and that, while the policy was in force, the Doromar burned and sank and became a total loss, plaintiff sued to recover the loss.

The defendant, admitting that, under the terms of the policy, burning and sinking were perils insured against, pleaded as a separate and complete defense an express warranty of seaworthiness and that the vessel was unseaworthy at the time of the commencement of the voyage.

While the answer did not specify wherein the vessel was unseaworthy, the issue tendered and tried under the answer was that the “Doromar” was insufficiently manned and, therefore, unseaworthy for the voyage from Miami to Panama Canal.

In support of its claim, the respondent proved that the vessel broke ground for the voyage with a crew of three men, and offered opinion testimony of several witnesses that this was an insufficient complement and the vessel was, therefore, unseaworthy.

On his part plaintiff called opinion witnesses who expressed the view that the “Doromar” was properly manned.

At the conclusion of the testimony, the district judge, stating “The testimony on the issue is extremely complicated, and the court concludes it does not preponderate in favor of the defendant, and, therefore, the defendant has not carried the burden of proof”, found for plaintiff and gave judgment accordingly.

Appealing from that judgment, defendant is here insisting not that it did not have the burden of proving unseaworthiness ¹ but that the finding that it did not carry its burden was clearly erroneous and that the judgment may not stand.

We do not think so. In McLanahan v. Universal Insurance Co., 1 Pet. 170, 7 L.Ed. 98, cited by defendant as its leading authority, the court, 1 Pet. at page 184 said:

“What is a competent crew for the voyage; at what time such crew should be on board; what is proper pilot ground; what is the course and usage of trade in relation to the master and crew being on board when the ship breaks ground for the voyage; are questions of fact, dependent upon nautical testimony; and are incapable of being solved by a court, without assuming to itself the province of a jury, and judicially relying on its own skill in maritime affairs.”

From this utterance to that in the latest decisions on this question, the view of the courts has been uniform. What, in effect, appellant asks us to do in this case is, “assuming to ourselves the province of a jury and judicially relying on our own skill in maritime affairs”, to substitute our opinion for that of the trial judge. The district judge could not, he did not, in determining the issue, rely on his own skill in maritime affairs. He was bound to decide the case on his opinion of the weight of the evidence in the light of the rule that defendant bore the burden of establishing its defense. Refusing to judicially rely on his own skill in maritime affairs and deciding the case upon the evidence as enjoined upon him by the decisions, he found the issue against the defendant. To set his finding aside as clearly erroneous, we are not furnished with any basis, we think we have none, except judicially relying on our own skill in maritime affairs. Couch, Cyclopedia of Insurance Law, Yol. 5, Section 1089, thus correctly states the rule controlling here:

“The presumption of law is that every vessel is seaworthy until the contrary is proved, and the burden of proving that a vessel is unseaworthy lies upon the insurance company.”

Appleman on Insurance Practice, Vol. 21, Section 12237, page 120, is to the same effect. We think we cannot under this rule reverse the judgment without denying to the district judge’s findings the weight they are entitled to under Admiralty Rules, No. 46%, 28 U.S.C.A., McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6.

The judgment is affirmed.

1 . New York & P.R.S.S. Co. v. Aetna Ins. Co., 204 F. 255, at page 258; Fireman’s Fund Ins. Co. v. Globe Nav. Co., 9 Cir., 236 F. 618.