City Motor Trucking Co. v. Franklin Fire Ins.

CO SHOW, J. It is elementary that the findings of the court have the effect of a verdict of a jury and that if there is any evidence to support the findings, the judgment of the court based upon the findings will not be disturbed by this court, providing the findings and conclusions are sufficient to support a judgment: Or. L., § 159. The principle of Marine Insurance Law applicable is stated by standard authorities as follows: “It is an implied condition of marine insurance on vessel, cargo, or freight that the vessel shall be seaworthy, which means that she must be suffi *105 ciently tight, staunch, and strong to resist the ordinary attacks of wind and sea during the voyage for which she is insured, and that she must be properly manned and equipped for the voyage.” Hughes on Admiralty, 59. “In every voyage policy of marine insurance there is an implied warranty that the vessel is in all respects seaworthy, and such warranty can be excluded only by clear provisions of the policy. * * This implied warranty of seaworthiness is not limited to cases of insurance upon vessels but applies equally to insurances on cargo, freight, and other subjects of marine insurance.” 36 C. J. 1071, 1072, §§ 206, 207. “By far the most important of the implied warranties is that of seaworthiness, which we will deal with first in order. In every voyage policy there is implied warranty that the ship shall be seaworthy for the voyage when she sails, by which is meant she shall be in a reasonably fit state as to repairs, equipment, crew, and all other respects, to encounter the ordinary perils of the voyage insured at the time of sailing on it.” 2 Arnould on Marine Insurance and Average (10 ed.), 889, § 686. “The warranty of the ship’s seaworthiness is equally implied in a voyage policy, whatever be the subject of insurance. It therefore applies no less to insurances effected by the owner of the goods than to those effected by the owner of the ship.” 2 Arnould on Marine Insurance and Average (10 ed.), 892, § 689. See, also, § 713, p. 923. This principle seems to have been unanimously applied by the courts to all cases involving claims under marine insurance policies: Union Ins. Co. of the City of Philadelphia v. Smith, 124 U. S. 405 (31 L. Ed. 497, 560, 8 Sup. Ct. Rep. 534); Cary v. Home Ins. Co., 235 N. Y. 296 (139 N. E. 274). The case last cited is very similar to the instant case. In page 300 (139 N. E. 275), the court says: *106 “In order to bring the loss within the terms of the policy plaintiffs must also establish affirmatively that the scow was seaworthy at the time the cargo rolled off the deck. A ship is seaworthy when reasonably fit in all respects to encounter the ordinary perils of the sea, incident to the adventure insured. (The Southwark, 191 U. S. 1, 8 [48 L. Ed. 65, 24 Sup. Ct. Rep. 1, see, also, Rose’s U. S. Notes].) To be seaworthy the ship’s cargo must be properly stowed. ‘One of the conditions implied by law in case of an insurance upon cargo, is that it shall be stowed in a safe and proper manner, and in the usual and customary place for the carriage of g-oods of the description insured; and any breach of this warranty by which the risk is varied and the perils insured against increased, vitiates the policy.’ ” Adderly v. American Motor Ins. Co. of Baltimore, 1 Fed. Cas. 166 (Fed. Cas. No. 75). After the plaintiff has made a prima facie case, the burden of proof of seaworthiness is then on the defendant when that matter is an issue in the case. 2 Arnould on Marine Insurance and Average (10 ed.), 934, § 725, where the rule is stated thus: “The burden of proof on the issue of unseaworthiness is on the underwriter. Where, however, a ship soon after sailing founders, or becomes so leaky or disabled as to be unable to proceed, and this cannot be ascribed to any violent storm or other adequate cause, the fair presumption is that it arose from causes existing at the time of her sailing, and consequently that she was not then seaworthy.” The same authority in page 936 in Section 726 says: “The whole question as to what constitutes seaworthiness is peculiarly a question for a jury.” Nome Beach Lighterage & Transportation Co. v. *107 Munich Assur. Co., Limited, et al., 123 Fed. 820; Thames & Mersey Ins. Co. v. Pacific Creo. Co., 223 Fed. 561 (139 C. C. A. 101); Fireman’s Fund Ins. Co. v. Globe Nav. Co., 236 Fed. 623 (149 C. C. A. 614). The evidence in this case does not give any cause for the loss. There is no evidence of any collision or unusual swell, storm or wind. The attorney for appellant in his brief says: “The cause of the wreck is not known.” Under some of these authorities above herein cited, a loss occurring under facts similar is presumed to have resulted from unseaworthiness of the vessel: Cary v. Home Ins. Co., 235 N. Y. 296 (139 N. E. 274). A presumption is evidence: Or. L., §§ 799, 868, subd. 2. There was some evidence, therefore, to support the finding to the effect that the loss did not occur as a result of any of the risks covered by the policy. The loss was not a result of a peril of the sea. We are, therefore, not permitted to interfere with the judgment, even though we thought the weight of evidence was contrary to the findings upon which the judgment is based. Criticism is made by the appellant of the findings and conclusions. We think the findings sufficient and that the conclusions support the judgment. It was not necessary for the court to make findings on the issues joined by the affirmative defenses since the court found that the plaintiff had not proved his allegations. The fact that the court used the word “barge” instead of “cargo” is immaterial. The subject of the action was the load on the barge, and the barge itself as a vessel was not insured. No one could be' misled by the clerical mistake, which was a mere slip of the pen. The *108 court evidently concluded from the evidence' that the plaintiff failed to prove a loss coming within the terms of the policy. The judgment is affirmed. Affirmed.