Fireman's Fund Ins. v. Globe Nav. Co.

(dissenting). The court below found that the insured vessel was seaworthy and that there was a coristructive total loss under the terms of the policy. I am not prepared to say that these findings are without adequate support in the testimony, and therefore dissent.

(after stating the facts as above). The .appellant defends this action on the grounds: 1. The vessel was not, seaworthy when she set out on the voyage in question. 2. The vessel did not become a total loss. 3. The vessel did not, under the terms of the policies, become a constructive total loss. .

1. It is provided in the policies of insurance that:

Section 2682 of the Civil Code of California provides:

Section 2683 of the Civil Code of California provides that:

The defense that the vessel was unseaworthy had reference, therefore, to her condition when she commenced her voyage at Westport on September 26, 1911, for Callao, Peru.

[1] The burden of proving that a vessel is unseaworthy lies upon the-insurance company. The presumption of law is that every vessel is seaworthy until the contrary is proved. Gow on Marine Insurance, p. 273; Arnould on Marine Insurance, par. 725; Adderly v. American Mut. Ins. Co., Fed. Cas. No. 75; Bullard v. Roger Williams Insurance Co., Fed. Cas. No. 2122; Lunt v. Boston Marine Insurance Co. (C. C.) 6 Fed. 562 ; Moores v. Louisville Underwriters (C. C.) 14 Fed. 226 ; Guy v. Citizens’ Mutual Insurance Co. (D. C.) 30 Fed. 695 ; Earnmoor v. California…