Hanover Fire Insurance Company v. Holcombe

• Decision Date: 05 August 1955
• Docket Number: No. 15406.,15406.
• Citation: 223 F.2d 844,1955 AMC 1531
• Parties: HANOVER FIRE INSURANCE COMPANY, Appellant, v. Harold W. HOLCOMBE, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

1955 AMC 1531, 223 F.2d 844 (1955)

HANOVER FIRE INSURANCE COMPANY, Appellant, v. Harold W. HOLCOMBE, Appellee.

No. 15406.

United States Court of Appeals Fifth Circuit.

June 21, 1955.

Rehearing Denied August 5, 1955.

Henry N. Longley, New York City, David W. Dyer, Douglas D. Batchelor, Miami, Fla., Bigham, Englar, Jones & Houston, New York City, Smathers, Thompson, Maxwell & Dyer, Miami, Fla., for appellant.

Martin D. Von Zamft, Miami, Fla., Darrey A. Davis, Miami Beach, Fla., Von Zamft & Kravitz, Miami, Fla., Sibley & Davis, Miami Beach, Fla., for appellee.

Before HUTCHESON, Chief Judge, and RIVES and TUTTLE, Circuit Judges.

HUTCHESON, Chief Judge.

Alleging that the vessel Doromar had been insured by the defendant against loss by fire, and that, while the policy was in force, the Doromar burned and sank and became a total loss, plaintiff sued to recover the loss.

The defendant, admitting that, under the terms of the policy, burning and sinking were perils insured against, pleaded as a separate and complete defense an express warranty of seaworthiness and that the vessel was unseaworthy at the time of the commencement of the voyage.

While the answer did not specify wherein the vessel was unseaworthy, the issue tendered and tried under the answer was that the "Doromar" was insufficiently manned and, therefore, unseaworthy for the voyage from Miami to Panama Canal.

In support of its claim, the respondent proved that the vessel broke ground for the voyage with a crew of three men, and offered opinion testimony of several witnesses that this was an insufficient complement and the vessel was, therefore, unseaworthy.

On his part plaintiff called opinion witnesses who expressed the view that the "Doromar" was properly manned.

At the conclusion of the testimony, the district judge, stating "The testimony on the issue is extremely complicated, and the court concludes it does not preponderate in favor of the defendant, and, therefore, the defendant has not carried the burden of proof", found for plaintiff and gave judgment accordingly.

Appealing from that judgment, defendant is here insisting not that it did not have the burden of proving unseaworthiness¹ but that the finding that it did not carry its burden was clearly erroneous and that the judgment may not stand.

We do not think so. In McLanahan v. Universal Insurance Co., 1 Pet. 170, 7 L.Ed. 98, cited by defendant as its leading authority, the court, 1 Pet. at page 184 said:

"What is a competent crew for the voyage; at what time such crew should be on board; what is proper pilot ground; what is the course and usage of trade in relation to the master and crew being on board when the ship breaks ground for the voyage; are questions of fact, dependent upon nautical testimony; and are incapable of being solved by a court, without assuming to itself the province of a jury, and judicially relying on its own skill in maritime affairs."

From this utterance to that in the latest decisions on this question, the view of the courts has been uniform. What, in effect, appellant asks us to do in this case is, "assuming to ourselves the province of a jury and judicially relying on our own skill in maritime affairs", to substitute our opinion for that of the trial judge. The district judge could not, he did not, in determining the issue, rely on his own skill in maritime affairs. He was bound to decide the case on his opinion of the weight of the evidence in the light of the rule that defendant bore the burden of establishing its defense. Refusing to judicially rely on his own skill in maritime affairs and deciding the case upon the evidence as enjoined upon him by the decisions, he found the issue against the defendant. To set his finding aside as clearly erroneous, we are not furnished with any basis, we think we have none, except judicially relying on our own skill in maritime affairs. Couch, Cyclopedia of Insurance Law, Vol. 5, Section 1089, thus correctly states the rule controlling here:

"The presumption of law is that every vessel is seaworthy until the contrary is proved, and the burden of proving that a vessel is unseaworthy lies upon the insurance company."

Appleman on Insurance Practice, Vol. 21, Section 12237, page 120, is to the same effect. We think we cannot under this rule reverse the judgment without denying to the district judge's findings the weight they are entitled to under Admiralty Rules, No. 46½, 28 U.S.C.A., McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6.

The judgment is affirmed.

RIVES, Circuit Judge (dissenting).

Upon a careful consideration of the entire evidence, I am "left with the definite and firm conviction that a mistake has been committed",¹ and in good conscience, I must therefore respectfully dissent. I would be the last to rely on my own skill in maritime affairs,² for I have no such skill; but this is not a jury case and a judge, of course, cannot transfer to so-called expert witnesses his duty and responsibility to arrive at a just conclusion from the evidence.

The policy contained an express warranty of seaworthiness for each voyage.

There was no dispute in the factual, as distinguished from the opinion, evidence. The Doromar was a motor vessel 109' in length and 18' abeam. She was powered with four Diesel engines geared to two propellers. The pilothouse was at the forward end of the vessel on a deck above the main deck. The engine room was aft, down in the hold. The galley was on deck aft of the engine room. The engines could only be controlled by an engineer on watch in the engine room for there were no controls of the engines from the pilothouse.

The vessel sailed from Miami on August 9, 1953, for the Panama Canal, a voyage of about 1200 miles which would require something over four days. This voyage required that the vessel skirt along the Cuban Coast, thence through the Yucutan Channel and, following the usual lane...