1. Marine Insurance—Seaworthiness of Vessel—Evidence of Custom.

On an issue as to the seaworthiness of an insured vessel for a voyage from San Francisco to Nome, the contention of defendant being that as the vessel was not sheathed she was not reasonably fitted to encounter the ice which she might be expected to meet in Behring Sea at that season, it was not error to submit to the jury for their consideration evidence that vessels generally making such voyages were not sheathed, although in fact the navigation to Nome first commenced that season, and its conditions and requirements had not been established; such fact going to the weight, and not to the relevancy or materiality, of the evidence.

Z. Instructions—Expression of Opinion by Judge.

It is not reversible error for the judge in a federal court to express his own opinion of the facts, if the rules of law are correctly laid down, and the jury are given to understand that they are not bound by such opinion.

3. Marine Insurance—Action on Policy—Defenses.

An allegation in the answer of an insurance company sued to recover for the loss of an insured vessel wrecked by floating ice encountered in Behring Sea that plaintiff sailed the vessel “into said ice knowing full well that so to do endangered the safety of said vessel” is not an allegation that the loss of the vessel was “caused by the willful act of the insured,” within the terms of Oiv. Code Cal. § 2629, which exonerates the insurer from liability for such a loss, but an allegation of negligent navigation, which under said section, as well as under the general law, constitutes no defense to liability, where, as in such case, the loss arose from a peril of the sea, which was a peril insured against.

4 Same—Unseaworthiness—Burden of Proof.

The burden of proving unseaworthiness as a defense to an action on a marine policy of insurance to recover for the loss of a vessel rests on the defendant.