Inland Rivers Service Corp. v. Hartford Fire Insurance

418 N.E.2d 1381, 66 Ohio St. 2d 32, 20 Ohio Op. 3d 20, 1981 Ohio LEXIS 465

• Court: Ohio Supreme Court
• Decided: April 8, 1981
• Docket: No. 80-568
• Status: Published

Opinions

Per Curiam.

The cause before us concerns recovery for a loss under a “perils of the sea” clause of a marine insurance policy.

This clause reads, in relevant part: “Touching the adventures and perils which this company is contented to bear and take upon itself, they are of the waters named herein, fire, lightning, earthquake, assailing thieves, jettisons, barratry of the master and mariners and all other like perils that shall come to the hurt, detriment or damage of the vessel named herein.”

Marine insurance policies have long insured against various “adventures and perils” which may befall vessels and cargo. Usually included among those risks are perils “of the seas” or “of the waters.” Coverage extends to fortuitous losses occurring through extraordinary action of the sea. Extraordinary action of the wind and waves is a sea peril, as are collision, foundering, stranding, and striking on rocks and icebergs. Gilmore & Black, The Law of Admiralty (1975 Ed.), at pages 72-73. Even damage to a moored vessel by its striking a sharp object constitutes a peril of the sea where it results from extraordinary and unforeseen factors and not from the inherent weakness of the vessel itself. Annotation, 85 A.L.R. 2d 446, 448. Ordinary wear and tear on a vessel is not, however, contemplated as a peril of the sea. 11 Couch on Insurance 434, Section 43:112.

It is undisputed that one seeking to recover on an insurance policy generally has the burden of proving a loss and demonstrating coverage under the policy. See, generally, 30 Ohio Jurisprudence 2d 934, Insurance, Section 1024. The issue in the instant case is whether, under a “perils of the sea” clause, the insured sustains this burden by merely showing that the probable cause of a leak (which results in a loss) is external to the vessel, or whether the insured must also show exactly who or what caused the leak.

Paragraph six of the syllabus in Western Insurance Co. v. Tobin (1877), 32 Ohio St. 77, reads as follows: “When a steamboat is shown to have been seaworthy at the time she was insured, and no intervening circumstance occurs to render her unseaworthy, her seaworthiness is presumed to continue; but when, during the life of the policy, she springs a dangerous leak, without apparent cause, a new presumption arises — -that of unseaworthiness; yet, as this new presumption is not a conclusive one, the owners are not required, to entitle them to recover for the loss, to show the identical cause of her loss, but may show a probable cause.”

Applying Tobin, supra, to the instant case, we conclude that the record shows that the barge was seaworthy when it was insured and that no intervening circumstance arose to render it unseaworthy. The record further shows that the barge sprang a dangerous leak without apparent cause, thus raising a rebuttable presumption that it was unseaworthy when it sank. To overcome that presumption, the appellant needed to show a probable cause of the loss by a peril of the sea. This burden could be satisfied by showing that the loss probably resulted from a fortuitous cause external to the barge. However, appellant had no burden to prove exactly who or what may have caused the dangerous leak.

The record reveals that appellant offered expert evidence that a hole found in the side plate of the barge, below the water line, had been “punched in” by an instrumentality external to the vessel, and that the hole was the cause of the sinking. We find this evidence to be sufficient to support the trial court’s finding that appellant overcame the presumption of unseaworthiness and carried its burden of persuading the finder of fact that the loss resulted from a covered “peril of the sea.”

For the foregoing reasons, the judgment of the Court of Appeals is reversed.

Judgment reversed.

W. Brown, P. Brown, Sweeney, Locher, Holmes and C. Brown, JJ., concur.