The plaintiff sued to recover on several insurance policies. The defendants denied certain allegations contained in the complaint and each company pleaded two affirmative defenses, concealment and that the barge insured was not seaworthy. As to the first affirma tivc defense the trial court found the facts as alleged by the defendants. As to the. other affirmative defense it found the probative facts but did not find on the ultimate fact. Continuing it made conclusions of law in favor of the plaintiff. At this time the defendants contend that the judgment should be reversed and that the trial court should be directed to enter judgment for the defendants. That contention we think must be sustained.

The things insured were the engines on a barge, W. T-B No. 60. The barge was, and for several years had been, at San Quintín, Mexico. In 1929 it was insured. In 1930 the insurance was renewed. By the terms of the policy the movements of the barge were limited to a zone having a radius of seven miles in and about San Quintín. Desiring to take the barge to San Francisco the owners applied to have the policies modified. That matter was taken up in 1930 and the modification was accomplished March 13, 1931, upon the payment of an additional premium. Among others the court made the following findings:

Under the facts recited above M. Thompson & Company was acting as the agent of the insured; and C. T. Bowring & Company was acting as the agent of M. Thompson & Company. The most that can be said is that Mr. Worden disclosed to M. Thompson & Company, his own agent, the facts. But there is no evidence that any of the facts happening after the original policies were written were communicated to the insurers.

In every marine insurance a warranty is implied that the ship is seaworthy. (Civ. Code, sec. 2681.) That rule applies to a modification of a contract of insurance as well as to the original contract. (Civ. Code, sec. 2582.) As a general rule, unless inquiry is made the insured need not communicate such facts as are covered by a warranty, express or implied. (Civ. Code, sec. 2464, subd. 3; 2 Duer on Insurance, p. 572 et seq.) But to that rule there are well-defined exceptions. In 2 Duer on Insurance, at page 435, the author says:

The plaintiff cites and relies on California Co. v. New Zealand Ins. Co., 23 Cal. App. 611 [ 138 Pac. 960 ], An examination of that case discloses that the facts were materially different from the facts in the instant ease. Nothing we have said is at variance with it. On the other hand the case has much in favor of the case as made by these defendants.

The judgment is reversed and the trial court is directed to enter judgment on the findings as made in favor of the defendants.

Nourse, P. J., and Spence, J., concurred.

A petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 27, 1935.

Shenk, J., voted for a hearing.