Ideal Cement Co. v. Home Ins. Co., 14789.
| Decision Date | 12 March 1954 |
| Docket Number | No. 14789.,14789. |
| Parties | IDEAL CEMENT CO. v. HOME INS. CO. et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
J. Edward Thornton, by Vickers & Thornton, Mobile, Ala., for appellant.
Eberhard P. Deutsch, Brunswick A. Deutsch, New Orleans, La., T. K. Jackson, Jr., Palmer Pillans, Deutsch, Kerrigan & Stiles and Inge, Twitty, Armbrecht & Jackson, Mobile, Ala., for appellee, René H. Himel, Jr., New York City, of counsel.
Before HUTCHESON, Chief Judge, and HOLMES and BORAH, Circuit Judges.
Appellant, libelant below, brought a libel in personam against the hull underwriters of its Barge 105 to recover for the loss sustained in the sinking, raising and repairing of the vessel. Under the 56th Admiralty Rule, the underwriters impleaded the Tug Virginia A, which had towed the barge, and her owner, Sam A. McDonald. Libelant also filed a libel in personam against McDonald, in which it alleged negligent towage.
The two actions were consolidated for the purposes of this trial and judgment, and the issues of fact and law having come on to be heard on the pleadings and proofs of the parties, the court made findings of fact and conclusions of law,1 on the basis of which he denied libelant's claim on the policy and against the tug, and gave judgment accordingly.
In an exhaustive brief, thoroughly canvassing the testimony and vigorously attacking the court's findings of fact and the conclusion that libelant had breached "the warranty of the insurance contract as to seaworthiness", appellant insists: (1) that the insurance policy contains no express warranties; (2) that there is no implied warranty; and (3) that the provisions in the policy of insurance as to seaworthiness are exceptions from coverage.
In the alternative, it argues that the district judge misconceived the burden of proof on the issue of seaworthiness and that he erred in attributing the cause of the sinking of the barge to the holes in its deck and its leaky bulkheads.
The insurer, pointing to the warranty provisions of the policy and the exception from coverage provision relied on by it,2 and to the admitted facts: that the deck had holes in it; that the barge leaked when loaded; and that, despite these facts which were known to libelant, it kept the barge in service, confidently urges upon us that the record supported, indeed demanded, the fact findings and conclusions of the district judge.
We agree with this view. Read the record and place the burden of proof as one will, we think there is no escape from the conclusions of the district judge:
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