Transcript of Record — Birmingham Fire Insurance v. Tropical Marine Products, Inc. (No. 570)

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vuridea ean No. 570 OCT 231967 -

OES SOURT A Segcerpr

| OF orem JOHN T. FEY, Clerk

UNITED STATES )

COURT OF APPEALS

No. 16,071

TROPICAL ‘MARINE PRODUCTS, INC.,

Appellant,

versus

BIRMINGHAM FIRE INSURANCE COMPANY OF

PENNSYLVANIA, :

Appellee.

Appeal from the United States District Court for the

Southern District of Florida.

(ORIGINAL, BEQQRDREGAIYED MAR. 30/56.)

SE ova cu ns bac a casa sn pahecuscseacccuwaens

Exhibit “A”—Photostat of Policy of Birming-

| ham Fire Insurance Company of Penn.,

issued to T. A. Barba for $30,000.00, dated

8/14/53, Policy No. 26132 ........+.....

Answer of Defendant to Complaint ................

Summons issued 2/18/55 and Marshal’s Return

NES cee eee awh. Wks SR SE

Interrogatories Propounded by Defendant to Plain-

Ce ala we hse hk as MERKEN KU a oe hens 4

Affidavit of Stuart N. Willner, dated 5/17/55 in Sup-

port of Application for Preference ..........

Interrogatories Propounded to Defendant bv - Plain-

— Serr Tere Ter ee TTT ee re ere eee

Answers of Plaintiff to Interrogatories Propounded

Se ER nn oes Wabeccendncesdccuvossseee

Objections of Defendant to Interrogatories Pro-

Ee reer ererere rer

Answers of Defendant to Interrogatories Propounded

Order entered 6/1/55 on Plaintiff's Application for

Preference and for productions of certain

EE cc kchkn ah coeckictdpecssk ossens avs

Notice of Filing Deposition .......................

Request of Plaintiff to Produce ...................

Request of Plaintiff for Admissions ................

Exhibit #1—Proof of Total Loss by Tropical

Marine Products, Inc., to Birmingham

Fire Ins., Co., of Penn., dated 9/3/54 ....

Affidavit of Stuart Willner, dated 9/3/54 ..

Exhibit #2—Final Survey. Report of James P.

Stuart, Marine Surveyor, dated 8/11/53

to John McKinley

4.689822 8 6.8 688 SEO 6 Ae SS SS

4 re

INDEX—Continued

Request of Plaintiff for Admissions—(Continued):

Exhibit #4~—Photostat of Paid Up Insurance

Premium Contract with the First National

Bank of Miami, Fla., dated 5/11/54 .°....

Findings of Fact and Conclusions of Law, dated

DEE Ue cab okaUeeeRauaheas ness

Final Judgment, entered 10/6/55

Motion of Plaintiff for New Trial .................

Order entered 11/4/55 Denying Motion of Plaintiff

er Se I ig oe ee ee teas

Order entered 12/23/55 extending time for filing

I er I, GO chine ices natvaiecnaes

Notice of Appeal ........... print tte eset essences

ME I | 6 6.6 5 65k 8 kaneis SEE ETT Tee Peet eT

Stipulation and Order entered 2/7/56 > File Record

MY ES va ctv aces a deendeatucaes

Transcript of Proceedings

Case called for Trial

Colloquy between Court and Counsel ,.........

Statement made by Mr. Willner, Counsel for

Plaintiff

Sa ePaB OCs 2B 4868S 2OB 4A ES AE £24 OES OS OD

Evidence for Plaintiff:

Testimony of Vernon Calvin Eason, Jr. ..

Thomas A. Barba ..........

Leonard O. Berlinski ......

Leonard O. Balinske (Re-

ee es

pS EE eer ere

Joseph F. Moran ............

Deposition of Henry Mills ................

Motion of Defendant, after Plaintiff rested for

dismissal and Ruling thereon ............

PAGE

ios

INDEX—Continued

PAGE

Transcript of Proceedings—(Continued ):

Evidence for Defendant:

Deposition of itoy Jennings .............. 193

Fred H. Hallbauer ......... 214

James P. Stuart (Recalled)... 235

Colloquy between Court and Counsel .... 253

Evidence for Plaintiff (In Rebuttal): 5

Testimony of Leonard QO. Berlinski (Re-

ee rere 258

Colloquy between Court and Counsel ........ 262

Appellant’s Designation of Contents of Record on

BD ox Gabi asccecdaccistenedeneneeseactes 263

Cs SS vcd sec bbigth an skeas Asa deen ees 265

Motion to Correct Omission in Record on Appeal,

and Order granting Motion ................ 266

SUPPLEMENTAL TRANSCRIPT OF RECORD.

Notice of Plaintiff of Motion and Motion for Order

requiring Defendant to Produce, etc. ........ 271

Exhibit “A”—Affidavit of Arthur Lee Willner,

SE Ga uc aa sek baesceseuees 272

Order entered 6/14/55 sustaining Objections to In-

teTTOMATOVIOS 2.6... cet e eee eee eee eeee 274

Motion of Defendant for Issuance of Letters Rogatory 275

Order entered 7/29/55 on Motion of Defendant for

eS , rrer eerrrr rrr Terre err 276

Latters. ROmMtOry . ow... wc csc cece cece sec eeeees 277

Objections of Defendant to Request for Admissions 280

Answers of Defendant to Request for Admissions .. 281

Order entered 9/26/55 Sustaining Objections of De-

fendant to Request for Admissions ........ 283

Recitation relative to Proposed Findings of Fact and

Conclusions of Law submitted by the Plain- :

RR eer re ery es Te a. OO 283

a¥

INDEX—Continued

Proposed Findings of Fact and Conclusions of Law

submitted by Plaintiff ..............4......

Recitation relative to Proposed Findings of Fact and

Conclusions of Law submitted by the Defend-

rors areas fae corer re a ae ae

Appellant’s Additional Designation of Contents of

a ee eT ree Pree ee eee

Clerk’s Certificate to Supplemental Record ........

SECOND SUPPLEMENTAL TRANSCRIPT

OF RECORD.

Appellant’s Additional Designation of Contents of

kk re errr ree rere eee

Substitution of Counsel for Appellant ............

Clerk’s Certificate to Second Supplemental Record

PAGE

283

288

289

292

293

295

On February 18, 1955 COMPLAINT together with

Exhibit attached thereto was filed in the words and

figures as follows:

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE SOUTHERN DISTRICT OF

FLORIDA, MIAMI DIVISION.

No. 6078-M-Civil.

TROPICAL MARINE PRODUCTS, INC.,

Plaintiff,

against | ©

RCN Am FIRE INSURANCE COMPANY OF

PENNSYLVANIA,

Defendant.

Plaintiff, by its attorneys Fowler, White, Gillen,

Yancey & Humkey, complaining of the defendant

herein, alleges upon information and belief as fol-

lows:

First: That at all times hereinafter mentioned,

plaintiff, Tropical Marine Products, Inc., was and

still is a corporation duly organized and existing un-

der the laws of the State of Florida and was at all

material times the owner of a certain motor. vessel,

named the Sea Pak.

Second: That at all times hereinafter mentioned,

the defendant was and now is an insurance under-

writer chartered under the Laws of the State of Penn-

sylvania and engaged in the business of insuring ma-

rine risks in the State of New York.

- Third: That the jurisdiction of this Court is based

upon the diversity of citizenship of the parties hereto

and the amount in controversy, exclusive of interests

and costs, being in excess of the sum of $3,000.00.

Fourth: That on or about August 13, 1953 one, T.

A. Barba and the defendant entered into a contract

of insurance a copy of which is annexed hereto, in-

corporated herein and marked Exhibit ‘‘A’’, wherein

and whereby the defendant, in consideration of cer-

tain premiums paid by the said T. A. Barba, did

insure the latter in accordance with the terms of the

said contract against, among other losses, total loss

of the motor vessel Sea Pak in the amount of $30.-

000.00. Thereafter the said T. A. Barba duly sold

and conveyed to plaintiff all his right, title and in-

terests in and to the motor vessel Sea Pak herein-

before described and thereupon, with the consent of

the defendant, the aforesaid contract of insurance was

indorsed on November 10, 1953 to the plaintiff herein.

A copy of the indorsement is attacked and made a

part of Ewhibit ‘‘A.”’

Fifth: That on or about August 13, 1954, and while

the said contract of insurance was in full force and

effect, and motor vessel Sea Pak was caused to

founder off Long Cay on the Caicos Banks in the

Turks and Caicos Islands by perils of the seas latent

defects in the machinery, and/or other perils insured

against, and became a total loss within the meaning

of the contract of insurance.

Sixth: That the plaintiff pramptly gave notice of

the loss to the defendant together With proof of said

loss in accordance with the terms and conditions of

said contract of insurance and the piaintiff a fully

and duly performed all conditions of said corntract on

its part to be performed.

Seventh: That demand has been duly made upon

the defendant for the payment of said sum of $30,-

000.00 which became due to the plaintiff under the

terms of said contract and no part thereof has been

paid by the defendant.

Eighth: The defendant having failed to pay the

plaintiff the sum demanded as hereinabove alleged,

it has become necessary for the plaintiff to employ

counsel to prosecute its claim and plaintiff has em-

ployed the law firm of Fowler, White, Gillen, Yancey

and Humkey to do so, and has obligated itself to pay

the said attorneys’ fee for their services in the pre-

mises.

Wherefore, Plaintiff demands judgment against the

defendant for the sum of $30,000.00 with interest

thereon from August 13, 1954 together with costs of

this action and attorneys’ fees.

FOWLER, WHITE, GILLEN,

YANCEY & HUMKEY,

By (S.) HENRY BURNETT,

Attorneys for Plaintiff.

Note

Pages 4-10 are

on Card 2.

oer et A

o£ Bb es

— eee

On March 10, 1955 ANSWER of Defendant was filed

in the words and figures as follows:

(Title Omitted.)

Comes now the Defendant, by and through its un-

dersigned Attorneys, and for answer to the complaint

filed herein, alleges: |

1. It admits the allegations contained in para-

graphs First, Second, Third and Fourth.

2. It denies the allegations contained in paragraph

Five. . |

3. In answering paragraph Six, it admits that it

was given notice of the loss in accordance with the

terms of the policy of insurance but denies the other

allegations of paragraph Six.

4. It admits the allegations of paragraph Seven

except that it denies that the said sum is due to the

Plaintiff under the terms of the policy.

5. It denies the allegations_contained i in wT

Eight.

SMATHERS, THOMPSON,

MAXWELL & DYER,

By (S.) DOUGLAS BATCHELOR,

Attorneys for Defendant,

Birmingham Fire Insurance

'Company of Pennsylvania.

I Hereby Certify that a copy of the foregoing An-

swer was mailed to Fowler, White, Gillen, Yancey

& Humkey, Attorneys for Plaintiff, 507 Biscayne

Building, Miami, Florida, this 10th day of March,

1955. . .

(S.) DOUGLAS BATCHELOR. 4%

On February 18, 1955 SUMMONS was issued and on

March 11, 1955 was returned together with the Mar-

shal’s return in the words and figures as follows:

United States District Court for the Southern District

of Florida, Miami Division.

Civil Action File No. 6078-M-Civil.

United States Marshal Received Feb. 18, 1955, Miami,

Fla.

Received at Jacksonville May-9 1955, U. S. Marshal,

Sou. Dist. of Fla. £3

Tropical Marine Products, Inc., Plaintiff,

Vv.

Birmingham Fire Insurance Company of Pennsyl-

vania. Serve: John E. McKinley, General Man-

ager of Birmingham Fire Insurance Company of

Pennsylvania, 921 South Miami Avenue,* Miami,

Florida, Defendant.

To the above Defendant:

You are hereby .summoned and required to serve

upon Fowler. White, Gillen, Yancey & Humkey,

plaintiff's attorney, whose address 507 Biscayne

Building, Miami, Florida, an answer to the com-

plaint which is herewith served upon you, within

twenty days after service of this summons upon you,

exclusive of the day of service. If you fail to do so,

judgment by default will be taken against you for the

relief demanded in the complaint.

JULIAN A. BLAKE,

“Clerk of Court,

(S.) ANNA M. FITZSIMMONS,

(Seal) Rie Deputy Clerk.

(Seal of Court)

Date: Feb. 18, 1955.

Note—This summons is issued pursuant to Rule

4 of the Federal Rules of Civil Procedure.

—_—— on

On April 12, 1955 INTERROGATORIES to Plaintiff

was filed in the words and figures as follows:

(Title Omitted.)

Comes now the Defendant, by and through its un-

dersigned Attorneys, and serve upon the Plaintiff the

following interrogatories to be answered under oath

by an officer of the Plaintiff corporation:

1. State the peril or perils of the sea that caused

the ‘‘Sea Pak’’ to flounder.

2. State the latent defects in the machinery that

caused the ‘‘Sea Pak’’ to founder.

3. State what other perils insured against caused

the ‘‘Sea Pak’’ to founder.

SMATHERS, THOMPSON,

MAXWELL. & DYER,

By (S.) Douglas D. Batchelor,

| Attorneys for Defendant,

Birmingham Fire Insurance

= Company of Pennsylvania.

I hereby certify that a eopy of the foregoing In-

terrogatories was mailed to Fowler, White, Gillen,

Yancey & Humkey, Attorneys for Plaintiff, 507 Bis-

cayne Building, Miami, Florida, this 11 day of April,

1955. on . < °

(S.) DOUGLAS D. BATCHELOR. °

On May 20, 1955 AFFIDAVIT of Stuart N. Willner,

IN SUPPORT OF APPLICATION FOR.'PREFER-

ENCE was filed in the words and figures as follows:

2” ’ (Titlé Omitted. )

State of Florida,

County of Dade. ss.

Stuart N. Willner, being duly sworn, deposes and

says:

1. That, he is the President of Tropical Marine

Products, Inc.. the Plaintiff herein, and is author-

ized to make this affidavit.

2. That Tropical: Marine Products, Inc., was the

owner and operator of the fishing vessel M/P Sea

Pak which was insured for marine risks by the Bir-

mingham Fire Insurance Company of Pennsylvania,

the Defendant herein.

3. That ii ies August 13, 1954, the M’V Sea

Pak became a total loss by reason of foundering and

due demand was made upon the Defendant for pay-

ment under the aforementioned policy of ‘marine in-

surance. The Defendant refused to pay for the loss

under the-policy’and has since continually refused to

pay without’ stating any reason therefore, to the con-

tinued detriment of the Plaintiff.

' 4. That prior to the loss of the M/V Sea Pak, the

operation of the Plaintiff company was a profitable

venture due principally to the special equipment and

size of the M/V Sea Pak which was adapted to the

type of fishing in which it was employed. Since the

loss of the vessel, the Plaintiff has been without suf-

ficient funds to properly replace the Sea Pak, but

has instead been forced to purchase two small and

inadequate vessels to continue its fishing operations

and thus to save the special fishing franchise granted

to the Plaintiff, which is of great value. The vessels

presently emploved enable the Corporation to main-

tain only a small portion of the catch formerly made

with the Sea Pak and the profits have been reduced

to a fraction ofthe former earnings of the Corpora-

tion.

5. That until payment is made bv the Defendant

_for the loss sustained, the Plaintiff has no means

available for supplementing the reduced operation by

addition. ‘of a vessel properly suited to the type of

fishing in which the Plaintiff is engaged.

- 6. That the members of the crew of the M/V Sea

Pak who are necessary witnesses in trial of the loss

are presently.in Miami and will remain here until

the second week of June at which time they must

return to Caicos to resume the limited fishing which

remains possiblé to the Plaintiff. Depositions have

been taken of these crew members; however, Plain-

tiff desires to produce these men in Court if it is

possible.

7. That the members of the crew of the motor

vessel Sea Pak are natives of Caicos Island, British

West Indies and that is the permanent place of the

boat and residence and it will be virtually impossible

at any other time to produce the witnesses to the

~ Court.

Wherefore, your Senenent respectfully requests

“that a preference be granted and that Plaintifi be

given an early date for trial.

Sworn.and subscribed to before me this 17th day

of May, 1955.

(S.) STUART N. WILLNER,

(Stuart N. Willner).

Notary Public, State of Flor-

ida at Large. :

I Hereby Certify that a copy ‘of the foregoing Affi-

davit in Support of Application for Preference was

delivered to Smathers, Maxwell & Dyer, at their of-

fice in the DuPont Building, Miami, Florida, this 17th

day of May, 1955.

(S.) ARTHUR L. WILLNER,

Fem, (Arthur L. Willner),

Attorney for Plaintiff.

310 S. E. 2nd Avenue,

Miami 32, Florida.

On May 20, 1955 INTERROGATORIES to Defend-

ant was filed in the words and figures as follows:

(Title Omitted.)

To: Smathers, Thompson, Maxwell & Dyer

Attorneys for Defendant

DuPont Building

Miami. 32, Florida

The plaintiff requests that the defendant, Birming-

ham Fire Insurance Company of Pennsylvania, by

an offiter or agent thereof, answer under oath, in

accordance with Rule 33 of the Federal Rules of Civil

Procedure, the following interrogatories:

1. State whether the Birmingham Fire Insurance

Company of Pennsylvania entered into a contract

with T. A. Barba for insurance in the sum of $30,-

000.00 on the pot fishing vessel M/V Sea Pak on

or about August_14, 1953.

9. State whether the contract of insurance en-

tered into. between Birmingham Fire Insurance

Company of Pennsylvania and T. A. Barba on the

M/V Sea Pak attached as a risk covered by Birming-

ham Fire Insurance Company of Pennsylvania.

3. State whether on or about November 10, 1953

an indorsement was attached to the policy of insur-

ance on the M/V Sea Pak showing Tropical Marine

Products, Inc., to hold title to the M/V Sea Pak with

loss payable to T. A. Barba and Tropical Marine

Products, Inc., as their interest may appear.

’

4. State whether any report or reports on the ma-

terial condition of the M/V Sea Pak were received by

Birmingham Fire Insurance Company of Pennsy]l-

vania from any source other than the insured prior

to notice of loss of that vessel.

5. State when the report or reports referred to in

question 2, if any, were received by Birmingham Fire

Insurance Company of Pennsylvania or its agents or

employees.

6. State what action was taken by Birmingham

Fire Insurance Company of Pennsylvania after re-

ceipt of the report referred to in question 2.

7. State whether a contract of insurance issued by

Birmingham Fire Insurance Company of Pennsy]-

vania to cover loss of the M/V Sea Pak was in ful

force and effect on August 13, 1954.

8. State whether the Birmingham Fire Insurance |

Company of Pennsylvania, or an officer or agent —

thereof, at any time after August 13, 1954 received

notice of loss of the vessel M‘\’ Sea Pak from any

insured or agent thereof so listed on the policy of

insurance on the M/V Sea Pak.

9. State what action was taken by Birmingham

Fire -Insurance Company of Pennsylvania on a notice

of loss of the M/V Sea Pak received from insured or

an officer or agent thereof.

10. State with particularity reason for refusal by

Birmingham Fire Insurance Company of Pennsyl-

vania to pay the plaintiff in this action for the loss

sustained under the policy of insurance issued on the

M/V Sea Pak.

11. State with particularity the cause for founder-

ing of the M/V Sea Pak as known to the Birmingham

Fire Insurance Company of Pennsylvania.

12. State whether the cause for foundering of the

M/V Sea Pak was a risk covered by the policy of

insurance on that vessel issued by Birmingham Fire

Insurance Company of Pennsylvania.

13. State upon what source of information the Bir-

mingham Fire Insurance Company of Pennsylvania

refused payment to insured for the loss of the M/V

Sea Pak.

14. State upon whose advice the Birmingham Fire

Insurance Company of Pennsylvania determined that

the loss of the M/V Sea Pak was not a loss payable

under the policy of insurance on‘the vessel.

}

15. State whether Birmingham Fire Insurance

Company of Pennsylvania, at any time during the

period in which the policy of insurance on the M/V

Sea Pak was in effect, or at any time thereafter,

tendered to the plaintiff a return of the prerfiums paid

under that policy by the plaintiff. .

16. State at what date the Birmingham Fire In-

surance Company of Pennsylvania considered its pol-

icy of insurance on the M/V'Sea Pak terminated.

(S.) ARTHUR L. WILLNER, ~

(Arthur Lee Willner),

Attorney for Plaintiff.

310,S. E. 2nd Ave.,

“ Miami 32, Florida.

I Hereby Certify that a copy of the foregoing In-

terrogatories was delivered to Smathers, Thompson,

Maxwell & Dyer this 20th day of May, 1955.

(S.) ARTHUR L. WILLNER,

Attorney for Plaintiff.

On May 20, 1955 ANSWERS TO DEFENDANT'S

INTERROGATORIES was filed in’ the words and

figures as follows: Shy

(Title Omitted.) ~~

State of Florida,

County of Dade.

Comes now Stuart N. Willner, President cf Trop-

ical Marine Products, Inc., and says:

1. That he is authorized to make this statement

- for the corporation.

+ OME, WL pe ee eg ne ee

2. That on information and belief he brings the

following Answers to Defendant’s Interrogatories, and

further says:

1. In answer to Interrogatory Number 1, a sprung

butt on the vessel’s bottom, forward on the port side

at a depth of about six (6) feet below sea level and

under the forward freezer box.

2. In answer to Interrogatory Number 2, none.

3. In answer to Interrogatory Number 3, the sprung

butt apparently faced forward in-such_a manner that

when the vesse] was under way, the condition was

caused to worsen, and which was further aggravated

_ by the prevailing weather conditions at the time.

A eee oh

STUART N. WILLNER.

Sworn and subscrib€d to before me this 13 day of

May, 1955.

MAE JOHNSON,

(Seal) Notary Public, State of Flo-

rida, at Large.

My commission expires: Nov. 13, 1957.

I Hereby Certify that a copy of the foregoing An-

swers to Defendant’s Interrogatories was delivered

to Smathers, Maxwell and Dyer, at their office in

4 DuPont Building, Miami, Florida, on this 13th

day of May, 1955. |

(S.) ARTHUR L. WILLNER,

(Arthur L. Willner),

Attorney for Plaintiff.

310 S. E. 2nd Avenue,

as Miami, Florida.

(Copy.)

On May 27, 1955 OBJECTIONS TO INTERROGA-

TORIES was filed in the words and figures as fol-

lows:

(Title Omitted.)

Comes now the Defendant, by and through his

undersigned Attorneys, and objects to the following

interrogatories served upon it by the Plaintiff in the

above cause:

Interrogatories 2, 5, 6, 13 and 14,

upon the grounds that the said interrogatories are

sO vague as to not permit an Answer to be framed

thereto, and upon the further grounds that the said

interrogatories are jmmaterial and irrelevant nor

are they designed to illicit information which may

lead to imformation which is material and relevant.

SMATHERS, THOMPSON :

MAXWELL & DYER,

By (S.) DOUGLAS D. BATCHELOR,

Attorneys for Defendant.

I Hereby Certify that a copy of the foregoing Ob-

| Jections to Interrogatories was mailed to Arthur L.

: Willner, Esq. Attorney for Plaintiff, 310 S.E. 2nd

| Avenue, Miami 32, Florida, this 27 day of May, 1955.

| (S.) DOUGLAS D. BATCHELOR,

Of Counsel.

attiemeeneeinnneee

_ On June 1, 1955 ANSWERS TO INTERROGATOR-

IES was filed in the words and, figures as follows:

(Title Omitted.) *

State of New York,

County of, ss.

Comes now Birmingham Fire Insurance Company

Of Pennsylvania, by its undersigned Agent, and an-

Swers the interrogatories heretofore served upon it

as follows:

1. Yes.

3. Yes.

4. No.

7. No. The policy in effect on August 13, 1954,

covers only loss by the perils set forth in the policy.

(8. Yes.

9. The claim was denied.

10. The failure of the assured to satisfy the De-

fendant that the loss occurred from a peril insured

against under the policy.

11. The Defendant has no knowledge of the cause

of the founder other than the information which it

was given by the Plaintiff and its employees.

12. See answer to Interrogatory 11.

15. No.

16. August 14, 1955, at 12:00 o’clock Noon, Eastern

Standard Time. q

AMERICAN INTERNATIONAL

MARINE AGENCY OF NEW

YORK, INC.

By (Illegible),

Agent for Birmingham Fire

Insurance Company of

Pennsylvania.

Sworn te and subscribed before me this 27 day of

May, 1955.

_ , THOMAS F. MOYER,

| os Notary Public, State of New

sag Ps , i York.

My Commission expires: Notary Public, State of

New York, No. 31-2001550. Qualified in. New York

County, Certified with N. Y. County Clerk Commis-

sion Expires March 30, 1957.

I Hereby Certify that a copy of the foregoing

Answers to Interrogatories was mailed to Arthur L.

Willner, Esq. Attorney for Plaintiff, 310 S. E. 2nd

Avenue, Miami 32, Florida, this Ist day of June,

1955.

(Illegible)

On June 1, 1955 ORDER on application for pre-

ference and for productions was filed in the words

and figures as follows:

(Title Omitted.)

This cause coming on to be heard upon the Plain-

tiff’s Application for Preference and upon the Plain-

tiff’s Motion to require the productions of certain

documents in the possession of the Defendant, and

the Court having heard argument of counsel, it is,

upon consideration,

Ordered and Adjudged that the Application for

Preference be and the same is hereby denied, and

it is further

Ordered and Adjudged that the Motion to produce

a report made to the Defendant by a marine sur-

veyor at the time the pcelicy of insurance was issued,

be and the same is hereby granted, such report to

‘ |

be produced for inspection and/or copying at a time

mutually agreeable to counsel for the parties. As to

all other matters, the said Motion is denied.

Dated at Miami, Florida, this lst day of June, 1955.

(S.) JOHN W. HOLLAND,

Chief Judge.

On July 6, 1955 NOTICE OF FILING DEPOSITION

was filed in the words and figures as follows:

(Title Omitted. )

To: Dow & Symmers, Esqs.

70 Pine Street

New York, New York

Smathers, Thompson, Maxwell & Dyer, Esq.

DuPont Building

ms Miami 32, Florida

Please Take Notice that on July 5, 1955 at the of-

fice of the Clerk of the District Court of the United

States in and for the Southern District of Florida,

Miami Division, the depositions of Thomas A. Barba,

Joseph Frederick Moran, Leonard Oliff Belinsky, and

Henry Mills in the above-entitled cause were filed.

Dated at Miami. Florida. this 5th day of July, 1955.

_ FREELAND & CHERTOK, INC.

By (S.) MARTIN AVERSON,

Court Reporters.

1030 Seybold Building,

Miami, Florida.

We Certify that a true copy of the foregoing notice

of filing deposition was sent to the addressees herein

on the 5th day of July, 1955 by depositing same in the

United States mail with sufficient postage thereon.

FREELAND & CHERTOK, INC.

By (S.) MARTIN AVERSON.

On September 16, 1955 REQUEST TO PRODUCE

was filed in the words and figures as follows:

(Title Omitted. )

To: Smathers, Thompson, Maxwell and Dyer

Attorneys for Defendant

duPont Building

Miami 32, Florida.

Please Take Notice that Defendant is required to

produce at the trial of the above captioned matter:

| _

1. All communications from the Plaintiff or per-

sons acting on its behalf to the Defendant or persons

acting on its behalf relating in any way to the in-

surance under the policies in suit and the presenta-

. tion of claim for loss. *

2. All communications from Barba or persons act-

ing on its behalf to Defendant or persons acting on

its behalf relating in any way to the insurance under

the policies in suit.

_ 3. All communications from Plaintiff Or persons

acting on its behalf to Defendant or persons acting -

on its behalf relating to the extension of and/or re-

newal of the insurance on the vessel in question.

“4 All communications, including surveys, to De-

fendant or persons acting on its behalf from its agents,

surveyors and any other persons relating in any way

to the insurance under the policies in suit including,

without restricting the generality of the above, all

communications and surveys from J. Stuart and Fred

Hallbauer, and in particular, the original survey, a

copy of which was attached to the Request for Ad-

missions and marked Exhibit 2 thereto.

5. All other books, documents, papers, checks,

memoranda in possession of or under the control of

the Defendant relevant to the issues in the case.

6. The ofiginal reinstatement of coverage dated

May 11, 1954, a copy of which is attached to the Re-.

quest for Admissions and marked Exhibit 3 thereto.

7. The original request by Cauley and Martin,

dated August 2, 1954, addressed to John E. McKinley,

Inc., general agents for American International Ma-

“rine Agency, requesting renewal of the then current

policy on the Sea Pak. A copy of the document is

attached to the Request for Admissions, served this

date, and marked Exhibit 5 thereto. |

ARTHUR LEE WILLNER, Esq.

Attorney for Plaintiff,

Of Counsel,

\ DOW & SYMMERS,

WILBUR E. DOW, JR., ESQ.,

By ARTHUR L. WILLNER.

I Hereby Certify that a true and correct copy of the

foregoing Req’ est to Produce was delivered, in per-

son, by me, to the above named addressee. this 16th

day of September, 1955.

7 ARTHUR L. WILLNER.

‘On.September 16, 1955 REQUEST FOR ADMIS-

SIONS was filed in the words and figures as follows: -

; ey

(Title Omitted.)

To: Smathers, Thompson, Maxwell and Dyer

Attorneys for Defendant

duPont Buildfkg :

Miami 32, Florida.

Please Take Notice that the Plaintiff in this action

required the Defendant to admit, for the purposes of

this action only, the genuineness of the documents

attached hereto and the truth of certain matters of

fact set forth herein within ten (10) days of the ser-

vice of this request as follows:

1. The genuineness of a copy of the policy of in-

surance No. 26132, with all indorsements thereto,7a

copy of which was attached to the Complaint.

2. The genuineness of the Proof of Total Loss,

copies of which are attached hereto and marked Ex-

hibit 1, and also attached thereto are Affidavits of

Insurance, which are to be admitted as genuine.

3. The genuineness of the final survey report of

August 10, 1953 by James B. Stuart, Marine Surveyor,

_ 30

a copy of which is attached hereto and marked Ex-

hibit 2, the copies being those which were provided

by Defendaat’s counsel.

4. The genuineness of the reinstatement of cover-

age dated May 11, 1954, a copy of which is attached

hereto and marked Exhibit 3.

5. The genuineness of the paid up insurance pre-

mium contract with the First National Bank of Mi-

ami, Florida, a copy of which is attached hereto and

marked Exhibit 4.

6. That the insurance brokers, Cauley and Martin,

on August 2, 1954 requested John E. McKinley, Inc.,.

general agents for American International Marine

Agency. to prepare and forward renewal of the then

current policy on the Sea Pak.“A copy of the said

request is attached hereto and marked Exhibit 5.

7. That proper and timely notice of abandonment

' was made. |

—_—

8. That the insurer refused the abandonment.

9 That all formalities in connection with the pre-

sentation of the loss have been complied with.

' ARTHUR LEE WILLNER. Esq.

ttorney for Plaintiff,

Of Counsel, -

DOW & SYMMERS,

WILBUR E. DOW. JR.. Esquire,

By ARTHUR L. WILLNER.

I Hereby Certify that a true and correct copy of

the foregoing Request for Admissions of the attached

Exhibits hereinabove mentioned was delivered, in per-

| son, to the above named addressee, by me this 16th

day of September, 1955.

ARTHUR L. “WILLNER.

EXHIBIT I.

Proof of Tota] Lass.

To: Birmingham Fire Insurance Company of Penn-

sylvania

American International Marine Agency of New

York, Inc.,

108 Maiden Lane

New York 8, New York

By your policy of insurance No. 26138 dated the

14th day of August, 19... issued to T. A. Barba by

Cauley & Martin, your agent at Miami, Florida for

the term of one (1) year and the title indorsement

thereto attached assigning the said policy to Tropical

Marine‘ Products; Inc., dated November 10, 1953, you

insured Tropical Marine Products, Inc., against losses \

as set out in the said policy for the amount of $30,-

000.00 as more fully appears by the printed or written

portions and conditions of the said policy.

The property thus insured belonged to Tropical Ma-

rine Products, Inc., a Florida corporation, and no

other person or party had any interest therein.

The vessel, to-wit; ‘‘Sea Pak’’, insured by the said

jolicy sunk on Friday, August 13, 1954 approximately

me-quarter of a mile south of Long Cay of the British

ossession of South Caises Island located three miles

rom the town of Cookbourne Harbour, British West

ndies.

The whole value of the vessel amounted to Fifty

‘housand ($50,060.00) Dollars which was the actual

ash value at the time of the sinking and the whole

mount of the loss sustajried is Fifty Thousand ($50,-

00.00) Dollars.’

The whole insurance on said property at the time of

he sinking, including that above mentioned, was $30,-

00.00 and there was no other insurance on the said

ressel.

That the vessel was a tota] and complete loss and

iothing of any value was salvaged of or from the

ressel ‘‘Sea Pak’’, except approximately 6 life pre- |

ervers, a small dinghy and the American and Brit- | j

sh flags; and further all the appurtenances, machin-

‘ry, radios, masts, bow-sprits, anchors, cables, chains

‘iggings, tackle, apparel, furniture and all the other

1ecessaries thereunto appertaining and belonging to

he above mentioned vessel were lost and none of the

oregoing was salvaged and the vessel in its entirety

sunk at the hereinabove mentioned place at the here

nabove mentioned time and date.

That the sinking was caused by a peril of the sea

inknown to the captain, members of the crew or

owner of the said vessel and further that the said

vessel was then stout, staunch and strong, had her

_—

4) es ae

cargo well and sufficiently stowed and secured, was

well masted, manned, tackled, victualed, appareled,

and appointed, and was in every respect fit for sea

and the voyage she was about to undertake; that in

the prosecution of said voyage nothing material oc-

curred until the 13th day of August, 1951 when the

sinking described heretofore in detail in the Master’s

Protest occurred.

Nothing has been done by the owner assured of the

vessel or his agents to violate the conditions of the

_ policy which would render it void.

~ Witness my hand and seal this 3rd day of Septem-

ber, *954.

; | TROPICAL MARINE PROD-

UCTS, INC.,

‘By STUART N. WILLNER,

(Stuart N. Willner),

; President.

Attest: , :

ARTHUR WILLNER,

Secretary. F

State of Florida,

County of Dade. ss.

I, an officer authorized to take acknowledgments

and administer oaths according to the laws of the

_ State of Florida, hereby certify that Stuart N. Willner

and Arthur L. Willner, as President and Secretary

respectively of Tropical Marine Products, Inc., to me

personally known this day acknowledged before me

that they executed the foregoing proof of total loss as

such officers of said corporation and that they af-

fixed thereto the official seal of said corporation and

I further certify that I know the said persons making

said acknowledgments to be the individuals who exe-

cuted the said proof of total loss.

In witness whereof, I hereto set my hand and of-

ficial sea] at Miami, Dade County, State of Florida

this 3rd day of September, 1954.

(Ilegibile),

Notary Public, State of Flor-

ida at Large.

My Commission Expires: Jan. 8, 1938.

State of Florida,

County of Dade. ss.

Comes now Stuart N. Willner who, being first ‘duly

sworn, deposes and says:

That he is President of Tropical Marine Products,

Inc., that he has read the foregoing proof of total

ioss and the facts therein contained are true to the

best of his knowledge and belief; and further, that

he is authorized on behalf of the corporation to make

this said statement and has caused the corporate seal

and attestation of the Secretary thereto to be affixed.

STUART N. WILLNER,

(Stuart N. Willner).

Subscribed and sworn to before me this 3rd day of

September, 1954.

(S.) JAMES G. (Illegible),

Notary Public, State of Flor-

ida at Large.

My Commission Expires: Jan. 8, 1958.

Affidavit of Insurance Coverage.

State of Florida,

County of Dade. ss.

Comes now Stuart N. Willner who, being first duly

sworn, deposes and says:

1. That he is President of Tropical Marine Prod-

ucts, Inc., the sole owner of the vessel ‘‘Sea Pak’’;

that he is authorized to make this affidavit on behalt

of the Corporation and that he has personal knowl-

edge of the facts herein stated.

2. That he knows of his own personal knowledge

of the insurance carried on the vessel ‘‘Sea Pak’’, and

that the only insurance on the said vessel is Birming-

ham Fire Insurance Company of Pennsylvania Policy

No. 26132 and the indorsements thereto attached.

3. That—other than the hereinabove stated insur-

ance there. is no other insurance of “" type, nature

or form on the said vessel.

STUART N. WILLNER,

“ Subscribed and sworn to before me this 3 day of ©

September, 1954.

ARTHUR N. WILLNER,

Notary Public, State of Flor-

ida at Large.

My Commission Expires: (Tllegible).

Affidavit of Insurance Coverage.

State of Florida,

County of Dade. ss.

Comes now Stuart N. Wilimer who, being first duly

sworn, deposes and says: ;

1. That he is President of 7 :vpical Marine Prod-

acts, Inc., the sole owner of the vessel ‘“‘Sea Pak’’;

that he is authorized to make this affidavit on behalf

of the Corporation and that he has personal knowl-

edge of the facts herein stated.

9. That he knows of his own personal knowledge

of the insurance carried on the vessel “Sea Pak”’,

and that the only insurance on the said vessel is

Birmingham Fire Insurance Company of Pennsylvania

Policy No. 26132 and the indorsements thereto at-

tached. 2

3 That other than the hereinabove stated insur-

ance there is no other insurance of any type, nature

or form on the said vessel.

STUART N. WILLNER.

Subscribed and sworn to before me this 3 day of

September, 1954.

ARTHUR N. WILLNER,

Notary Public, State of Flor-

ida at Large.

My Commission Expires: ( Illegible).

EXHIBIT 2.

August 11, 1953

Mr. John McKinley

John McKinley, Inc.

DuPont Building

Miami, Florida

Re: Tropical Key Products, Inc. BoA. Barba, Presi-

dent, Refrigerated Vessel ‘‘Sea Pak’’ Govt. No.

251199.

Dear Mr. McKinley:

This refers to preliminary survey on ‘the above ves-

sel dated July 21, 1953. _ Ree .

Final survey was held on August | 10 and developed

the following particulars: —

Vessel was originally built at East Boothbay, Maine

for the U. S. Coast Guard and rebuilt in Miami in

1953.

Length 71’ 7”

Beam 13’ 6”

Draft 4 6”

C02 System. Now completed and tested July 26.

Auxiliary Generator 32 Volt is mounted on top of

the after trunk cabin under a wooden box. The top

and lower half of both sides-of the box wil] be open

when generator is running.

Bottled Gas Stove is in place and woodwork back

of stove is protected. Tank is not in place but will

be placed on the main _deck port side near after end

of deckhouse. Feed line will be run outside alongside

of trunk cabin and then down to the stove. Main shut

off valve (packless) will be placed in the line at the

stove and also at the tank.

38 : P:

Engines have been tested and found in order and a

trial trip will be held today or tomorrow and if every-

thing is satisfactory, the vessel wil] leave immediate-

ly.

Mr. Berlinski will take his time going down and

will run only during the we | and expects the trip to

take 4 days.

Approximately 1000 gallons of gasoline will be car-

ried in drums on deck from amidship aft, and approx-

imately 1000 gallons of diese] fuel in drums will be

carried below deck in the forward freezing compart-

ment. Both gasoline and fue] oil will be discharged

on arrival. |

‘ In my opinion the vessel is suitable for the trade

and as far as it is possible to ascertain is in good

condition.

Yours very truly, .

JAMES P. STUART,

Surveyor.

JPS—

Built for U. S. Coast Guard.

Purchased bv Tropical Key Products, Inc., J. A.

Barba, President.

Composition

Wood 83’ x 14 x 414’

Frames

Wood 2u x 2u—12” C

Pianking

Wood 1 3/4”

Fastening

Spiked and bolted.

Engines

Sterling Coast Guard. Age unknown. 210 N. P. each,

6 cylinder, 1400 R. P. M. Completely overhauled 1953.

Tanks :

Two iron rectangular forward end of engine room,

450 gallons.

Exhaust Pipes

Copper, now from engine room aft, salt water

cooled.

Speed

Estimated 12 mph. l

Ventilation

Two 8” vents with cowl hoods on top of deck house

into engine room. One exhaust blower and dust taking

air from amidships under engine flooring.

Batteries

Four, leaded boxes with ventilated tops. new.

Bilge Pumps

Handy Billy on deck 2%” suction to bilge and salt

water—114” discharge. Gasoline auxiliary pump on

deck 1”.

Wiring

Now being chécked and ercinnee

Refrigeration

Machinery located on main deck in deckhouse over _

engine room.

war wthienit dene S .

Generator

Auxiliary gasoline generator will be mounted on

‘top of after trunk and fed from gasoline tank on

deck.

Fire Equipment

6—C02 extinguishers throught the vessel. C02 sys-

tem in engine room—bottles now being refilled and

checked. .

Galley

Below deck aft, bottled gas stove, tanks on deck.

Installation not yet completed.

Anchors

250 lbs, 100 lbs., 60 lbs., 30 lbs.

Chain

350’ of 4",

Lines

257° of 1”.

Windlass

Hand.

Additional lines will be put on board, also two spare

propellers. ,

Decks

Plywood laid over old decks.

Bunkhouses

Plywood new.

Ship to Shore

200 Watt set, not yet on board, will be connected

up and tested prior to leaving.

Tender

14 will be carried on after trunk.

| Searchiipilt

Mounted on top of inchhoune.

}iote

Pages 42-43 are ©

on Card 2.

Recitation.

The copy that the following page was taken from

is not legible, it was in such bad condition that it

could not even be typed.

Note

Pages 45 and 46

are on Card 2.

™%

On October 6, 1955 FINAL JUDGMENT was en-

tered by the Court and filed in the words and figures

as follows:

United States District Court, Southern District of

Florida, Miami Division.

Tropical Marine Products, Inc., Plaintiff,

- vs. Case No. 6078-M-Civil.

Birmingham Fire Insurance Company of Pennsyl-

vania, Defendant.

This cause came on to be tried by the Court, the

; Court having heard testimony and considered the ex-

hibits and now being advised, enters the following

judgment herein.

7 Findings of Fact.

1. The. Defendant, Birminyham Fire Insurance

Company of Pennsylvania, in-.red the refrigerated

vessel ‘‘Sea Pak’’ under an American Institute Time

Hull Policy, from August 14, 1 13 to August 14, 1954.

The insurance was originally issued in the name of

T. A. Barba and on November 19. 1953, the name of

the assured was changed to the Plaintiff, Tropical

Marine Products, Inc. The policy was in the sum of

$30,000.00 and the pertinent part of the insuring clause

reads as follows:

“Touching the Adventure and Perils which we, the

said Underwriters, are contended to bear and take

upon us, they are of the Seas, Men-of-War, Fire,

Lightning, Earthquake, Enemies. Pirates, Rovers, As-

Sailing Thieves. Jettisons, Letters of Mart and Coun-

ter-Mart, Surprisals, Takings at Sea, Arrests, -Re- @

straints and Detainments of all Kings, Princes and

Peoples, of what nation, condition or quality soever,

Barratry of the Master and Mariners and of all other

like perils, Losses and Misfortpnes that have or shall

come to the Hurt, Detriment or Damage of the said

vessel, etc., or any part thereof.”’

2. -The ‘‘Sea Pak”’ was a wooden hull vessel orig-

inally built for the United States Coast Guard. She

was 71’7” long, 13’6” wide and drew 4’6” of water. In

the Summer of 1953, she had been overhauled in

Miami and in August, 1953, was in good condition and

seaworthy. She left Miami in August, 1953, and was

operated from that time until her loss, in and around

the Caicos Islands. She had not been hauled out of

the water subsequent to August, 1953, although she

had been placed in shallow water and her bottom

scrubbed on several occasions while she remained .

afloat. |

3. The “Seal Pak’’ left Cockburn Harbour, South

Cficos Islands, lon August 9, 1954. It proceeded to gn

anchorage in the lee of Long Key. This was a distance

of about eight miles. The anchorage was protected

from the prevailing winds and from the sea and the

water in the anchorage remained calm all the time

the ‘‘Sea Pak*’ was anchored there. The vessel re-

mained at anchor in about 15 feet. of water in this

protected area until approximately 5:00 A.M. on Au-

gus¢ 13. During this time the vesse]| was collecting

conch from small skiffs that were fishing in that area.

4. At about noon on August 12, the Master noticed

that the “Sea Pak’’ was beginning to take on an un-

- 49

usual amount of water and that the automatic pump

was working more than normally necessary. During

that afternoon and night the Jeaking became pro-

gressively worse. An inspection bs the vessel revealed

that the water was coming from underneath a re-

frigerated space in the forward part of the ship. Be-

cause of the construction of the interior of the vessel,

the bilge underneath this area was inaccessible. Short-

ly before daylight on August 13, the Master felt that

the leak had developed to such an extent that he

should attempt to return to Cockburn Harbour.

5. As soon as it was daylight, or about 5:00 A.M.,

the anchor was raised and the boat proceeded around

the south end of Long Key into the open water of

Turks Island Passage in an effort to return to Cock-

burn Harbour. At this time. the sea on the wind-ward

side of Long Key was choppy and there was a mod-

erate breeze. These conditions were not unusual for

.that area and were not such as would ordinarily have

\caused the vessel any difficulty.

\\]

| 6. After the vessel got underway, the leak con-

| inued to get progressively worse and before the ship

_,/ Could reach Cockburn Harbour. the leak had _pro-

*/ gressed to such an extent that the vessel’s engine

was drowned out. The vesse! then drifted back along

the shoreline of Long Key until] the Master ordered

the crew to abandon her. The four men on board

then rowed ashore in a 14’ row boat which was being

towed astern of the ‘‘Sea Pak’’ and the ‘‘Sea Pak’’

eventually sank. Because of the depth of the water,

no salvage attempt was made.

7. There is no explanation as to what caused the

leak which resulted in the loss gf the vessel.

8. The Plaintiff has not shown that the vessel was

seaworthy immediately prior to the developing of the

leak which resulted in the loss of the vessel.

Conclusions of Law.

1. This Court has jurisdiction of the parties and of

the subject matter of this litigation, and venue is

properly laid in the Miami Division of the Southern

District of Florida.

2. The policy here in question insures the vessel

against loss from extraordinary occurrences and does

not insure her against those ordinary perils which

vessels must encounter. Hazard v. Insurance Co., 33 .

U. S. 587: Union-Marine Ins. Co. vy. Charles D. Stone

& Co., 15 F. 2d 937.

3. The burden of proving that the loss comes with-

in the terms of the policy rests upon the assured.

Continental Ins. Co. of New York v. Patton-Tully

Transp. Co.. 212 F. 2d 543; Kelly. Weber & Co. v.

Franklin Fire Ins.c, Co., 43 F. 2d 361.

4. When a vessel develops a leak in ordinary

weather and seas, from no°apparent peril insured

against, there is no presumption that the damage was

sustained because of a peril of the sea and the Plain-

tiff must establish that the loss was the result of an

insured peril. Watson v. Providence Washington Ins.

Co., 106 F. Supp. 244 (opinion approved 201 F. 2d

736): Klein v. Globe & Rutgers Fire Ins. Co., 2 F.

2d 137: Jahn v. Steamship Folmina, 212 U. S. 264;

Long Dock Mills & Elevator Co. v. Mannheim Ins.

Co., 116 Fed. 886: Swift v. Union Mutual Insu~vance

Co., 122 Mass. 573.

5. The Plaintiff having failed to meet such burden,

the Defendant is entitled to an entry of a judgment

in its favor, together with its costs.

It is thereupon Ordered that the Clerk of the Court

enter judgment for the defendant, costs to be taxed

against the plaintiff. x

Done and Ordered at Miami, Florida, this 6th day

of October, 1915.

(S.) GEORGE W. WHITEHURST,

hi ' United States -District Judge.

On October 7, 1955 FINAL JUDGMENT by Clerk

was filed in the words and figures as follows:

In the United States District Court in and for the ~

Southern District of Florida, Miami Division.

Tropical Marine Products, Inc., Plaintiff,

vs.

Birmingham Fire Insurance Company, of Pennsyl-

vania, Defendant.

Case Number 6078-Miami-Civil.

This cause came on for trial before the Court and

consistent with the Findings of Fact and Conclusions

of Law, entered on October 6th. 1955. it is.

4 ,

Ordered and Adjudged that the above cause is dis-

missed and judgment is entered in favor of the de-

fendant, and that costs are taxed against the piaintiff.——

Done and Ordered at Miami, Florida, this 6th day

of October, 1955.

JULIAN A. BLAKE,

Clerk, U. S. District Court,

Southern District of Florida,

By ANNA M. FITZSIMMONS,

(Seal) Deputy Clerk.

(Court Seal. )

-_— +

On October 17, 1955 MOTION of Plaintiff FOR NEW

TRIAL was filed in the words and figures as follows: |

(Title Omitted.)

Plaintiff, Tropical Marine Products, Inc., moves

the Court pursuant te Rule 59 (a) of: the Federal

Rules of Civi] Procedure to set aside the judgment

entered herein on the 6th day of October, 1955, amend

the Conclusions of Law or make new Conclusions

and enter a new judgment on the grounds that:

1. The Court erred in not including all of the perti-

nent parts of the policy of insurance in its first Find-

ing of Fact, as originally set out in plaintiff’s trial

memorandum and for the sake of convenience in-

cluded in the Memorandum of Law attached hereto.

2. The Court erred in concluding that as a result

of Finding of Fact No. 8, that piaintiff’s policy of in-

surance was thereby vitiated although there was no

provisions in the policy that required any further

proof of seaworthiness after the risk attached.

3. The Court erred in Conclusion of Law No. 2 in

holding that the policy insured only against extra-

ordinary occurrences and not ordinary perils that a

vessel must encounter.

4. The Court erred in not finding, as a matter of

law, that the policy covers all perils of the sea, what-

ever they may be, the negligence of the Master and

crew, and losses due to latent defects in her hull.

5. The Court erred in applying a wrong and un-

workable standard in Conclusions of Law Nos. 4 and

5 to the hull policy at issue in this case as dis-

tinguished from a cargo policy, an entirely different

policy and subject to entirely different standards of

interpretation of the use of the word ‘‘seaworthiness”

as contained in those respective contracts.

(S.) ARTHUR L. WILLNER,

(Arthur Lee Willner, Esq.),

Attorney for Plaintiff.

310 S. E. 2nd Avenue,

Miami, Florida.

Of Counsel:

WILBUR E. DOW. JR., ESQ.

I Hereby Certify that a copy of the above Motion

for New Trial was delivered in person to. Smathers,

Thompson & Dyer, Attorneys for Defendant, DuPont

Building, Miami. Florida, this 17th day of October,

1955.

(S.) ARTHUR WILLNER.

On November 4, 1955 ORDER denying motion for

new trial, etc. was filed in the words and figures as

follows:

(Title Onjiitted. )

This cause coming on to be heard before me upon

Motion of the Plaintiff for a New Trial, to set aside

the judgment, amend the Conclusions of Law or make

new Conclusions, and enter a new judgment, and

argument of counsel having been heard and the Court

having considered the Memorandum of Law submitted

by counsel for the respective parties, upon considera-

“tion itis 3

Ordered that the Plaintiff's Motions be and the

same hereby are denied.

Done and Ordered at Miami, Florida, this 4th day

of November, 1955.

(S.) GEORGE W. WHITEHURST,

United States District Judge.

On December 23, 1955 ORDER extending time for

filing the notice of appeal, etc. was filed in the words

and figures as follows:

(Title Omitted. )

This Cause coming on to be heard upon the mo-

tion of the plaintiff for the extension of time to file a

Notice of Appeal and it appearing from the Motion

and testimony and argument of counsel that. excus-

able negligence exists and that the counsel for the

plaintiff has not received notice of the order depying

a new trial, it is, thereupon, j

Ordered and Adjudged that the time for filing the

Notice of Appeal and taking the appeal be extended

thirty (30) days from the expiration of the original

time prescribed for taking appeals, to-wit, January

3, 1956.

Done and Ordered at Miami, Florida, this 23rd day

of December, 1955.

EMETT C. CHOATE,

United States District Judge.

On December 30, 1955 NOTICE OF APPEAL by

Plaintiff was filed in the words and figures as fol-

lows:

In the United States District Court in and for the

Southern District of Florida, Miami Division.

Tropical Marine Products, Inc., Plaintiff,

vs. No. 6078-M-Civil.

Birmingham Fire Insurance Company of Pennsyl-

vania, Defendant.

Notice is hereby given that Tropica] Marine Prod-

ucts, Inc., plaintiff above named, hereby appeals to

the United States Court of Appeals for the Fifth Cir-

cuit from the final judgment entered in this action on

October 6, 1955, in keeping with an order of this Court

meses

56 *,

dated December 23, 1955 extending the time fos tak-

ing an appeal until January 3, 1966. /

(S.) ARTHUR L. WILLNER,

(Arthur Lee Willner, Esq.),

Attorney for Plaintiff.

310 S. E. 2nd Avenue,

After January 1, 1955—

175 S. W. 17th Avenue, i

Miami, Florida.

Of Counsel:

WILBUR E. DOW, JR., ESQ.

I Hereby Certify that a copy of the foregoing No-

tice was delivered to Smathers, Thompson, Maxwell

and Dyer. Attorneys for the Defendant, Du Pont

Building, Miami, Florida, in person this 30th day of

December, 1955.

(S.) ARTHUR L. WILLNER.

On December 30, 1955 COST BOND was filed in

the words and figures as follows:

(Title Omitted. )

Know All Men By These Presents, that Tropical

Marine Products. Inc.. as Principal, and Continental

Casualty Company. an Illinois corporation, as Surety,

stand firmly bound unto the defendant, Birmingham

Fire Insurance Company of Pennsylvania, in the penal

sum of Two Hundred Fifty Dollars ($250.00). to cover

costs heretofore or hereafter assessed in the above

entitled. cause.

Dated this ... day of December, 1955.

The condition of this bond is that whereas the said

Tropical Marine Products, Inc. has entered its ap-

peal from the Final Judgment rendered in the above

entitled cause on October 6, 1955, to the United States

Circuit Court of Appeals for the Fifth Circuit, and by

the Federal Rules of Civil Procedure is required to

post a cost bond in the said penal sum, then if the

said Tropical Marine Products shall pay all costs

assessed in this case against him either by the above

styled Court or the said Circuit.Court of Appeals in

connection with the above entitled cause or the said

appeal, then this obligation shall be null and void;

otherwise it shall remain in full force and effect.

TROPICAL MARINE PROD-

UCTS, INC. (Seal)

By (S.) ARTHUR L. WILLNER,

Secretary.

CONTINENTAL CASUALTY

COMPANY,

An Illinois Corporation,

By (S.) M. E. KERR, . (Seal)

Its Attorney in Fact.

(S.) MAE JOHNSON,

(S.) BERTA L. HUNTING.

Taken and Approved by Me, Julian A. Blake, Clerk

United States District Court, Southern District of Flor-

ida, Miami Division.

By (S.) EARLE F. SPRIGG,

Deputy Clerk.

(Court Seal.)

On February 7, 1956 STIPULATION and ORDER

EXTENDING TIME TO FILE RECORD AND DOCK-

ET APPEAL was filed in the words and figures as

follows:

| (Title Omitted. )

It is hereby stipulated and agreed, by and between

the attorneys for the parties hereto, subject to the

order of the Court, that the time within which plain-

tiff-appellant shall file the record on appeal and dock-

et the appeal from the judgment entered herein on

October 6, 1955, in the United States Court of Appeals

for the Fifth Circuit be extended to and including

April 1, 1956.

Dated: Miami, Florida, February 7, 1956.

(S.) ARTHUR LEE WILLNER,

(Arthur Lee Willner, Esq.),

Attorney for Plaintiff-Appel-

lant. |

(S.) DOUGLAS D. BATCHELOR,

SMATHERS, THOMPSON,

MAXWELL & DYER,

Attorneys for Defendant-Ap-

pellee.

So Ordered: February 7th 1956.

(S.) EMETT C. CHOATE,

United States District Judge.

On February 17, 1956 TRANSCRIPT OF PROCEED.-

INGS was filed in the words and figures as follows:

(Title Omitted. )

Miami, Florida,

Tuesday, September 27th, 1955,

10:00 o’clock a.m.

The above entitled cause came regularly on for

trial before the Honorable George W. Whitehurst,

United States District Judge, in open Court, at Miami,

Florida, on Tuesday, September 27th, 1955, at 10:00

o’clock a.m.

Appearances:

Wilbur Dow, Esq., and Arthur L. Willner, Esq.,

on behalf of Plaintiff;

Douglas D. Batchelor, Esq., and David W. Dyer,

Eisq., of the firm of Smathers, Thompson &

Dyer, on behalf of Defendant.

The Court:

Mr. Clerk, call the case on today’s calendar.

The Clerk:

Tropical Marine Products, Inc., plaintiff, versus

Birmingham Fire Insurance Company of Pennsyl-

vania, Defendant, Ng. 6078-M-Civil; Mr. Dow and Mr.

Willner for the plaintiff.and Mr. Batchelor and Mr.

Dyer for the Defendant.

Mr. Willner:

The plaintiff is ready.

Mr. Batchelor:

The defendant is ready.

The Court:

I think it will be helpful if counsel will state briefly

what the plaintiff’s claim is.

Mr. Dyer: |

Before that occurs, Mr. Batchelor, my partner here,

has prepared this case from the beginning and has

prepared to try it. By virtue of a deposition that was

‘taken last Thursday in South Caicos Island it will

probably be necessary to call him as a witness. There

is no objection, I understand, from opposing counsel

that that be done. I just want to make that state

ment at the outset.

The Court:

To call counse] as a witness?

Mr. Dyer:

Yes, sir, Mr. Batchelor.

The Court:

That is quite all right.

Mr. Dyer:

I just wanted that understood before we proceed.

Mr. Willner:

My name is Arthur Lee Willner. I would like to

introduce Mr. Stewart Willner, President of the Com-

pany, and I would like to introduce to the Court Mr.

Wilbur Dow. Mr. Dow is admitted te practice in the

State of Florida. the Second. Fourth and Fifth Cir-

cuits, the District of Columbia and the United States

Supreme Court. I move his admission to practice be-

-fore this Court for the purpose of trying this case.

The Court: fi 6

' Motion granted.

Mr. Dyer:

Before the opening. statements we would like to

have the rule invoked as to witnesses.

The Court:

Let all witnesses retire from the Courtroom: remain

near enough you will hear when your names are

called.

(All witnesses then retired from the Courtroom. )

The Court:”

Will you now state your claim.

(Opening statements were then made to the, Court

by counsel for respective parties. )

VERNON CALVIN EASON, JR., was thereupon

called as a witness on behalf of the Plaintiff, and

having been first duly sworn, testified as follows.

Direct Examination.

(By Mr. Dow):

Q. What is your full name and address?

A. Vernon Calvin Eason, Jr. My home address is

322 Candia Avenue, Coral Gables, Florida.

Q. You are here under a subpoena by the plaintiif,

are you not?

4. I am.

What is your business?

I'am in the insurance business.

With whom?

Cauley & Martin. I am vice president.

That is a Miami insurance company?

Cauley & Martin, Inc., is a Florida corporation.

A very well known one, isn’t it?

OPOoOroror

Mr. Batchelor:

I object to how well known they are. It is im-

material. 7

The Court:

Sustained.

(By Mr. Dow):

Q. Are you the agent of the Birmingham Fire In-

surance Company?

A. Cauley & Martin, Inc., is the agent.

Q. You are vice president of the corporation?

A: That is right’. ~ ?

Q. Do you or the corporation, then, have the power

to bind the Birmingham Fire Insurance Company’

A. Yes, sir. : )

Q. “Kshow you a document and ask you what it is.

I think that is the original.

‘A It is an insurance policy.

Q. Written by whom? :

A. The Birmingham Fire Insurance Company of

Pennsylvania, through the American National Marine

Agency, Inc., and by our agency.

Q. By yourself as agent?

A. Yes, sir.

Q. Does that insure the Motor Vessel Sea Pak for

thirty thousand dollars?

Mr. Batchelor:

I object. The policy speaks for itself. We have ad-

mitted the issuance-of the policy in our answer.

The Court: _

Objection sustained. The policy is not in issue; the

issuance of the policy is not in issue.

Mr. Batchelor:

Not the policy; it is attached to the complaint.

The Court:

Very well.

Mr. Dow:

Will you stipulate, then, Mr. Batchelor, that this is

the policy which the defendant issued here on the

vessel? “,

Mr. Batchelors.

I haven’t seen the policy. If you will offer the policy

which is attached to the complaint we will have no

objection whatsoever. |

Mr. Dow:

I think this gentleman would be the best one to

recognize it.

Q. Is that it?

Mr. Batchelor:

I accept it.

Mr. Dow: |

Do you accept this as the policy? The points that

I made to the Court’on the back I encircled in pencil

so I could find them quickly. With that exception the

policy is as originally given to the plaintiff.

Mr. Batchelor:

Could we just admit into evidencé the copy which

is attached to the complaint?

Mr. Dow: | >

I think the Court would find it a great deal easier

to read the original of that policy than a photostat,

with all of that fine print.

Mr. Batchelor:

Frankly, I object to having an exhibit put into

evidence that is all marked up, underlined and en-

circled, certain particular parts of it.

Mr. Dow:

The parts I read to the Court are the only ones |

have encircled, so I could find them quickly. I am

sorry about that.

The Gourt:

Let the exhibit be admitted in evidence. So long

as there is no alteration in the document it will be

considered by the Court as though—it_ had no. inter-

lineations

Mr. Dow:

Will you stipulate that there are no alterations in

the policy?

Mr. Batchelor:

No alterations.

(The original insurance policy was thereupon re-

ceived in evidence and marked ‘Plaintiff's Exhibit

No. 1.’’)

(By Mr. Dow):

Q. In placing that insurance, Mr. Eason, from

whom did you get the business?

Mr. Batchelor:

I object. The policy is in evidence. We admit it

covers the vessel. Where he got the business is im-

material. ;

The Court: ,

Yes, that is immaterial. Let’s go straight to the

heart of the controversy.

(By Mr. Dow):

Q. Did you not engage a surveyor to survey this

vessel prior to the acceptance of the risk?

A. The company engaged the surveyor: we didn't.

Q. That is the Birmingham Fire Insurance Com-

pany?

A. Or the AIMA, or whoever their general agent

is.

Q. Tell the Court who the AIMA is.

A. The American International Marine Agency is

& marine management company that-fepresents sev-

eral companies, one of which is the Birmingham Fire

Insurance Company.

Mr. Stuart was the surveyor engaged?

He. was the one so appointed.

He made a report on the ship?

Yes, sir, he did; several.

Do you have the original of those reports?

I do not.

POPOo Ps

Mr. Dow:

We have copies of them, “as produced by the de-

fendant., é

Q. Was. the company Satisfied with the report?

Mr. Batchelor:

I object as to\what the company was satisfied with.

He is not the company.

Mr. Dow:

He is the agent of the company.

The Court:

You mean the insurance company?

Mr. Dow: * as ae

That is correct.

The Court: . -

The insurance company issued the policy. didn’t it?

Mr. Dow: |

That is correct.

Fon

a“)

Loe

» i

The Court:

Then, it is not material whether they were satis-

_ fied or not, is it? °

}

Mr. Batchelor:

No, sir.

The Court:

They are bound, nevertheless. Proceed.

(By Mr. Dow):

Q. Did.you subsequently arrange for the renewal

of this policy?

: Mr. Batchelor:

I object. They are suing on the policy which is in

issue, not the renewal thereof.

Mr, Dow:

Your Honor, I would like to say I realized I would

be met with this objection on this question, but I

think in all matters of this kind there is always a

question of good faith. I think the assured and the

insurer must deal very fairiy with each other. I think

they should. I think the good faith here is exhibited

by what I hope to bring out from the testimony of

this witness.

The Court: © ie ae. 7 :

This is not an equity case, is it?

Mr. Dow:

No, sir.

The Court:

This is a law action) in which the rights of the

parties are prescribed by the terms of the contract.

Mr. Dow:

There is another point, I think, which is important

to this plaintiff, what the insurance company required

if anything, for the renewal of this policy.

Mr. Batchelor:

That hasn’t one thing to do with this suit. We are

concerned with the policy which is in issue.

Mr. Dow:

I subnvit that it has a great deal to do with the

defendant insurance company’s view of the continuing

seaworthiness of this vessel, as evidenced by what,

if anything, they required for a renewal of the policy.

Mr. Batchelor:

We are getting into fields which are far afield from

any issue here.

The Court:

Objection sustained. “

(By Mr. ant. . . :

Q. Was the insurance policy which is in evidence

here as Plaintiff's Exhibit No. 1—was the interest in

this subsequently transferred from a Mr. Barba to

the plaintiff here. Tropical Marine Products?

Mr. Batchelor: :

The policy speaks for itself. It tee an indorsement

right on the face of it. That is what we are con-

- cerned with here.

The Court:

Very well. It should not be now disputed that this

is the rea] party in interest.

Mr. Batchelor:

No, sir.

The Court: | |

Objection sustained. In other words, the plaintiff

here is the real party in interest under this contract.

Mr. Batchelor:

Yes, sir.

The Court: | ies

That is the test.

Mr. Dow:

I think where the face of it’/refers to someone else

it would be helpful if I brought that out.

Q. Did you eventually receive a notice of loss of

the ship? ‘

A. Yes, sir. ~ | ae

Q. Was that in due form as required by your com:

pany? 2

A. Yes. sir, ‘ultimately: We were first eavieet by

telephone, and then ultimately the Broper forms. were

submitted. ee

Q. Did your company pay the toss. to. this plaintiff?

A. To thé best of my knowledge, ho:

* Q. Do you know any. reason why it rule not be

_ s -

Mr. Batchelor:

I object, as immaterial.

The Court:

His reason would not control. The reason we would

find here from the evidence and the law would be

the controlling reason why it was not or should not

be done.

Mr. Batchelor:

Yes, sir.

The Court:

Very well. Objection sustained.

Mr. Dow:

Your witness.

Mr. Batchelor:

No questions.

(Witness excused. )

THOMAS A. BARBA, was ‘thereupon called as a

‘withess on behalf of the Plaintiff, and having been

first duly sworn, testified as follows:

Direct Examination.

(By Mr. Dow):

Q. Will you staté your full name and address to

the Court?

A. Thomas A. Barba, 7970 Hawthorne Avenue, Mi-

ami Beach.

Q. What is your business?

A. Builder.

Q. I beg your pardon?

‘ A. Builder.

Q. What kind of a builder?

A. General; general contractor.

Q. You build ships, too?

A. No. a

Q. Were you At one time the owner of the Sea

Pak?

A. Yes.

Q. Did you originally establish a fishing business

down by Caicos?

A. Yes, sir.

Q. Will you tell the Court, in your own words, as

simply and as quickly as you can, the business that

you built, how you built it, how the business went,

the circumstances. surrounding the building of the

Sea Pak, what difference, if any, she made in your

business, and then—I underhtand you subsequently

sold it to the Tropical Marine Products; is that cor-

rect? :

A. That is right.

Q. Start with the beginning of this business down

there, and tell the Court about it.

Mr. Batchelor:

We object. That has not one thing to do with the

issues in this case. What happened to this business he

had started and what it did is not material in the

least bit to the issue in this.case. We are trying to

decide what caused this boat to sink. >

The Court: ‘ ;

The Court doesn’t see any relevancy in the inquiry.

Your case here is, as I understand it, the claim for

the full amount of the policy of insurance on account

of the loss of the ship that was insured, because of

the hazards insured against, or because of the happen-

ing of a hazard that was covered by the policy. It

makes no difference whether this witness was suc-

cessful in his business or not. The issue here is what

caused the loss of the ship. That is Bua the

only issue, isn’t it?

Mr. Batchelor:

Yes, sir.

Mr. Dow:

Your Honor, it is getting down to the very time o

the beginning of the trial.

‘

The Court: |

Objection sustained. Any further examination of this

witness?

Mr. Dow:

Are you asking me the question?

The Court:

Yes. )

Mr. Dow:

You are telling me that the objection is sustained,

so you are not really asking me a question.

The Court:

I want to know if you want to ask this witness any

other questions except the one you have just asked

him. he

Mr. Dow:

No.

The Court:

Let the witness be excused.

(Witness excused.)

The Court:

Call the next witness.

JAMES P. STUART, was thereupon called as a

witness on behalf of the Plaintiff, and having been

first duly sworn, testified as follows:

Direct Examination.

_ (By Mr. Dow):

Q. Will you state your full name and address?

A. James P. Stuart, 922 Ingraham Building.

Q. What is your business?

A. Marine surveyor.

Q. How long have you been engaged in that busi-

ness? me

A. I have been working as a surveyor since ’28.

Q. How long have you been in the ship or boat

construction business, or related to it?

A. Since 1906.

Mr. Batchelor:

We are willing to concede Mr. Stuart’s qualifica-

tions.

Mr. Dow:

The Court might be interested in it. I don’t know.

The Court:

I think Mr. Stuart has been a witness in here be-

fore. Haven’t you?

The Witness:

Yes, sir, I think I have.

The Court:

Go ahead. I think I know something about his qual-

ifications. Proceed.

Mr. Dow:

Will you accept them?

The Court:

Yes, of course.

(By Mr. Dow):

Q. You are appearing here under a subpoena, are

you not?

A. Yes, sir. - :

Q. Were you at one time called in by the Birming-

ham Fire Insurance Company, or their agents here

in Miami, to examine a certain vessel then under

reconstruction, whose name subsequently became the

Sea Pak?

A. ‘Yes, sir.

Q. Would you tell the Court what you found, what

you required, what you did, and in the end the quali-

fications of the vessel on which you issued your cer-

tificate? Just teil the Court.

Mr. Dow:

Your Honor, this will. take ‘ai Mew minutes. If Your

Honor doesn’t wish to fiear_it or if there is going to

be an objection to it, I will just take the certificate.

What is your pleasure, Mr. Batchelor?

Mr. Batchelor: .

Since you have asked us, I will tell the Court I am

not going to object to Mr. Stuart’s testimony, since

this case is being tried without a jury, but I don’t

think the conditions at the time the policy was issued

are material, but since Your Honor might want to

hear it, we have no objection to Mr. Stuart testifying.

The Court:

Proceed.

(By Mr. Dow):

Q. Tell the Court what you did, what you required,

what you found, and the kind of ship you produced

in the end; just tell the Court.

A. You want that from memory, or do you want

that from the survey?

Q. Do you have your surveys here?

A. Yes, sir.

Q. Use that to refresh your recollection. Is that

your own copy? .

/& Yes, sir.

Mr. Dow:

Do we have the original? Mr. Batchelor, do. you

have the original?

Mr. Batchelor:

— Not that I know of.

- with the

| ia ~@ 3 ’ _ 9

* ENDORSEMENT ae = %

‘ftuebive Moveater 10, 1953, it is understood and arreed that

title to verrel Insured a, ie now vested in: .

e- 7” ‘ . ae ‘ Y 7 a hol ts T =

e° ‘ ‘oe + * 4

7 «ss nu Arenue

Tt te fetus unvereoud end acmed that, loss if uny uncer this

= y4e:, shal te parable to the ivrurec end T. A. carbea as tieir |

fatberest may «° "ake

a a = a ate

>, +o ae Spm, oa

. : : | , ‘ a 2 Ae re MH 8 “r ad

“ee m - a * @ oo ~ a! agieey: » wt x % = * 2 —

~ =. . or

7 en Lal eli

- wi

All other teraas and conditions remaining: unchanged.

: ; “. me 4

Anached tu and forming partof Pehew No. 7ST en. ; ed fs

"Y= ve . 4 .

A, hm Sire Soe ee

ep Stee, J sued to: Te. we ‘ar-a

wa-°'? 9-88 tou

fo be med whee mee of ed 5 sage pt pt aon.

Address FICO Mawtheene Avec, MeBe . TITLE ENDORSEMENT

Attached to and forming part, of Policy No... RR...

. of the

Date ol Endorsement. Berens: D,. 1953.

Name of Insured _ a A. MA

“ee ere. eoeeeenrvreaeereree *“. “*te ee eer TTT Tre rTreTyT LEC RY eh edd

ie iilinieiines mans ten died UE en, amie i athe main, (3) elimi-

nate a mortgagee or, (4) change a mortgagee. ay oe such of following: provisions are

Empiretion Dete Se... lag 195h ia |

dt»

been completed by the insertion of name in the blanks provided therefor; == = iw a

~¥. Subject to the to the rights of THE FIRST NATIONAL BANK OF MIAMI, FLORIDA under an agreemen

rein whereby said Bank has financed the premiums on-this. policy, it is' hereby

Scknowledged and agreed that the interes! of the above Insured in the property described in policy has

Deen transferred and this policy assigned to Trepdeal Marine Predmsta,. Ince, 310 8. RB. Sesend. .

Aveme, Mani, » Tlardiing cee and consent to such assignment is granted by the Company.

ELDENATION OF PRIOR MORTGAGEE (TRUSTEE) INTEREST _

2. The interest of - ky ues eae — ,as

mortgagees (or trustees), in this policy is hereby i )

MORTGAGEE CLAUSE

Loss, if any, under this policy; shall be heme to... dae inmwred and Te As Barties,.os. thete .

ee ees may appear. Sos hes cGbehes > 064s0keenee 665ekbenses ber eseebend. \66sGerdcecekeescas Mesee cad ae wedroce -: wi ax one

Ken

first naan: lor trustee), and to . ; Se a Wee eee . (lame end A@éress). ---- . -------

ortgages as interest may Gppecr. ‘subject $0 provisions of the mortgagee clause appearing on the-reverse. side.

of t

Le tes asv. | Ea es ..wil a . . _ a

a: <

ad _. ate 2

i is inserted on reverse

space previded)—Loss, if any on building items under this policy, shall be payable to the mortgagee ‘or

trustee) as herein, as interest may appear, and this insurance, as to the interest of the. mortacayee for

trustee) only thereir., shall not be invalidated by any act or neglect of the mortgacor or owner of the thir

described property, nor by any foreclosure or other proceedings or notice of sale relating to the property, nor

by any change in the title or ownership of the property, nor by the occupation of the premises for purpose's :..Ur:

namaniienes than are permitted by this policy: Provided, That in case the mortgagor or owner shall neglec! ta pa,

any premium due under this policy, the mortgagee (or trustee) shall, on demand, pay the same.

Provided also, That the mortgagee (or trustee) shall notify this Company of any change of ownership or

occupancy or increase of hazard, which shall come to the knowledge of said mortgagee (or trustee) and. unless

permitted by this policy, it shall be noted thereon, and the mortgagee (or trustee) shall, on demand. pay the

premium for such increased hazard for the term of the use thereof; otherwise, this policy shall be null and void

-This Company reserves the right to cancel this policy at any time as provided by its terms, but, in such case

this policy shall continue in torce for the bénefit only of the mortgagee (or trustee) for ten cays after rotice to

the mortaagee (or trustee) of such cancellation, and shall:.then cease, and this Company shall have the right, on

_ like notice, to cancel this agreement. > es i ew

" - @. Wheneger this Company.shall‘pay the mortgagee (or trustee) any sum for loss under this policy and

shall claim that, as to the mortgagor or owners, no liability therefor existed, this Company shall, to the extert

of such payment, be thereupon legally subrogated to all the rights of the party to whom such payments shal!

be made, under all securities held as collateral to the mortgage debt, or may at its opticn pay to the mortgagee

(or trustee) the whole principal due or to grow due on the mortgage with interest, and shall thereupon receive a

full assignment and transfer of the mortgage and of all such other securities: but.no subrogation shall impa:r the

tight of the mortgagee (or trustee) to recover the full amount of his, her or their claim.

The above Mertgagee Clause DOES NOT apply to personal property.*

“NOTE TO AGENTS—This line (°) must be voided when clause is made applicable to personal property

AMERICAN INSTITUTE

TIME-—-HULLS

Deductible Average Clause

(March 1945)

Attached to and forming ‘part EIS ess. el en on... “SEA PAKM

Anything herein to the contrary notwithstanding, this insurance is warranted free from all claims of

whatsoever nature (including Claims under the sue and labor clause and claims under the collision clause)

unless the accident fesults in. = ‘total loss and/or cogstructive total toss of the vessel (in which case this

clause shall’ not“apply) or unless the aggregate ef stich claims arising out of each separate accident exceeds

ee ©. 0 , in which case this insurance shall be liable only for the amount by which such

aggregate exceeds $.........2000QM................ ; but a recovery from other interests and /or Ppartics sh2:: not operate

to exclude claims under this insurance provided the aggregate of such claims arising out of one separate accident

if unreduced by such recovery amounts to $.........200¢00. For the purpose of this clause cach accident

be treated separately, but it is agreed (a) that a sequence of damages arising from the same accident shall

be treated as due to that accident, and (b) that all heavy weather damage which occurs during a single sea

passage between two ports shall be treated as though due to one accident.

> a

ST Pag FREER oe aby! Ld

i . hart of Policy No....2132 Lacashicsesinasenis i ee Birwir ham Fire. Insurance..}...'.. :

Company ..af..POMMe YL WALA... cc eecccecteee ne eteesetesnennasanennnnnnnnen coitasonecnsen Ee ee

Rt Ener iia ease Te Oe Rene er ot. ceedanncenconienianaeneaeenanes 5 jasepeensaraonlshans ands navies

FOR ACCOUNT OF............ Whom it MAY COMET i cssssssennesntsnenesasenennenntentnnenneanennesnenerntenesceeeene

’ In the event of any change, voluntary or otherwise, in the ownership of the Vessel or if the Vessel be placed under new managment of be

chartered on a bareboat basis or requisitioned on that basis, then, unless the Underwriters agree thereto in writing, this Policy shall thereupon becume

tancelled from time of such change in ownership or management, charter of requisition; rovided, however, that in the case of an involuntary temporary

transfer by requisition or otherwise, without the prior execution of any written agreement the Assured, such cancellation shall take place fifteen davs

after such transfer; and provided further that if the Vessel has cargo on board. afd has already sailed from her leading port, or 's at sea in ballast, such

<ancellation shall be sus ed until arrival at final port of discharge if with cargo or at port of destination if in ballast. This insurance shall not inure

to the benefit of any such charterer or transferee of the Vessel. and if a loss payable hereunder should occur between such transfer and such cancellation 9

the Underwriters shall be subrogated to all the rights of the Assured against the tripsferee, by reason of such transfer, in respect of all or part of such 10

luss as is recoverable from the transferee and in the proportion which the respective amounts insured bear to the insured value. A pro rata daily return 11

of net premium shall be made. The foregoing provisions with respect to cancellatiogw: in the event of change in ownership of management, charter or 12

requisition shall apply even in the case of insurance “for account of whom it may .cuficern™. 13

Loss, if any, (excepting claims required to be paid to others under the Collision Clause), payable to....... znsured ictiscickncencamaaee 14

ie nia datrsemtainnnasionannanane aan ans eanne 1 papeccnnonseconseesuany(&cosennnnssondonsnhnsecnstranrgstouguasneseonfuerertesasboanicsaae

‘Citi LD ia a Se cpanel aniaeanicrcatmnamenniienn encemmmcnnetienelti te aera order. 16

‘ Sum Insured Hereunder,. Harty, Thousand and NO/100 mao e em Fin Dollars, 17

at and from the..... 24t®......... day of........... AURUBE 19:93);...... NOOMs...RABhern. Standard eisiiaensaniaal time 18

te HE, decerscnecia Wy th day of... AMEN BE ccc 19.92). NOOR: FMALERR. Shandard... nme time, 19

Provided, however, should the Vessel at the expiration of this Policy be at sea, or in distress, or at a port of refuge or of call, she shall, 20

provided previous notice be given to the Underwriters, be held covered at a pro rata monthly premium to her port of destination. 21

On the Vessel called the........ Sefrigeratad. Weasel.."SEA.PAK* Bice cee teseeeeeeeee ONA..... HL). & Machinery Sennen 22

(or by whatsoever namne or names the said Vessel is or shall be called). : 23

The said Vessel, for so much as concerns the Assured, by agreement between the Assured and Underwriters in this Policy, is and shall be 24

valued at as folicws: — . 25

Hull, tackle, appare!, passenger Sittings, equipment, stores, ordnance, suenitien, 26

hosts and other furniture =. =. COU etlCl tll lll Sy yg ER rereeeeen 27

Boilers, machinery, refrigerating machi and insulation, motor tors aftd other electrical : 28

pe and ie ene 4 Abewenl ; ar ‘ asin we . v . oy Wer g..39,000 200 ere 29

Donkey boilers, winches, cranes, windlasses and steering gear shall be deéteed to be a part of the null and not of the machinery. 30

Special Conditions ond Werrentios 31

NAVIGATION LIMITS: aie | ee

Warrantéd confined to inland and coastal waters of the Sahemas,

with occasional tripe to the Florida East Coast for repairs.

| .

;_ = :

‘

; ;

Held covered in case of any breach of warraAty as to cargo, trade, locality @ date uf sailing, provided notice be given and any additional premium 32

peg crete ase ot Se er recnipt of edvloes of breach ox peoposed teed by Owners. 33

nad 2, we ee ee ene 22.2.2 ($1950 otters being at the rate of

he In event of non-payment of premium thirty days gfter sttachment this Poljcy ma be cancelled by the U

being given the Assured. Such proportion of the premium, however, ss shed nave e

and payable; but in the event of Total or Constructive Total Loss occurring pride to cancellation full annual premium shall be deemed earned. 38

46.04 conte per cont. set fer coch vncommenced month Hf if be mutvelly greed te cones! thie Policy. AQ

As fellows fer cach comscestive 20 devs the Vous! may be leld vp ls pot, viti— a

~~ iad Without Cerge on Beerd . Wits Cerge:en Beerd 41

1. Under repeie - . i F =<. a = ¢%- net o- @ @ a th net 42

— For the purpose ef thit clevse @ Vessel leeding or diecherging corgé shell considered as “with cerge on beord™. shite 44

Provided elweys: (co) thet a ne case shell @ return be cllewed when the| within named Vessel is lying in a roadstead 45

o is enpesed end vaproteeted water. ) | 46

(b) thet ia the event of @ return fer epeciel trede, er eny other recson, being recoverable, the above 47

retes of return of premium shell be reduced accerdingly. 48

wwe

In event of the Vessel being laid up in port for a period of 30 consecut:'¢ days, a part onlv of which attaches to this Policy. it is hereby 49

iod, in which either the commencing of ending date of this Policy falls, shall be deemed vo run frem the bret day £9

on which the Vessel id wp and that on this basis Underwriters shall pay such proportion of the r.turn aue in tsp. of a §:.1] perio: of Su 351

days as the number of days attaching hereto bear to thirty. f——J $2

(Continved On Following Pogo)

(INCLUDING ERED FREIGHT IPATED

A sum not exceeding in the gate 25% of the ingared value fof the Vessel.

(b) F OR HIRE, UNDER CONTRACTS FOR VOYAGE. A sum not exceedi

for the current cargo passage and next succeeding cargo passage (such insurance to } if required, a prelimin- 59

ary and an intermediate ballast passage) plus the charges of insurance. In the of a voyage charter where = 60

payment is made on a time basis, the sum permitted for insurance shall ‘be calculated on the estimated duration of 61

the voyage, subject to the limitation of two cargo passages as lid down herein. Any sum insured under this Section 62

shall be reduced as the freight or hire is carmed by the gross amount so earned. / 63

sum not exceeding the anticipated gross freight on next cargo ge, such sum to be reasonably estimated on the 65

basis of the current rate of freight at time of insurance, plus the charges of insurance. Provided, however, that no 9 66

insurance shall be permitted under this Section if any insurance is effected under Section (b). 67

(d) TIME CHARTER HIRE OR CHARTER HIRE POR SERIES OF VOYAGES. A sum not exceeding 50% of 68

the ; hire which is to be earned under the charter in a period not exceeding 18 months. Any sum insured wader 69

this oa shall be reduced as the hire is earned under the charter by 50% of the amount so earned but where 70

the charter is for a iod exceeding 18 months the sum insured need not be sed while it does not exceed 50% 871

oe to be earned under the charter. An insurance under this Section may begin on the signing of Mp

rter.

(ec) PREMIUMS. A sum not exceeding the actual premiums of all interests insured for a period not exceeding 12 74

months (excluding iums insured under the foregoing Sections but including, if required, the premium of esti- 75

gross freight of hire 38

: mated calls on any ion and Indemnity or War &c. Risk insurance) reducing pro rata monthly. 76

(f) RETURNS OF PREMIUM. A sum not exceeding the actual returns which are recoverable subject to and arrival - 77

under any policy of insurance. 78

(g) INSURANCE IRRESPECTIVE OF AMOUNT AGAINST: — Risks excluded by the F. C & S. Ciduse, and risks 79

? enumerated in the American Institute War and Strikes Clauses and General Average and Salvage Disbursements. aC

Warranted that no insurance on any interests enumerated in the foregoing Sections (a) to (f), indv:ive, in excess 81

of the amounts permitted therein and no insurance subject to P.P.1., F.1.A. or other like term, on any i

excepting those enumerated in Section (a), is or shall be effected to operate during the cur -of this Policy by of foe 83

account of the Assured, Owners, Managers or Mortgagees. Provided always that a breach of this warranty shall not 84

afford Underwriters any defense to a claim by a Mortgagee who has accepted this Policy without knowledge of such breach. 85

Beginning the adventure upon the said Vessel, as above, and so shall continue and endure — the period aforesaid, as 86

t may offer, in port and at sea, in docks and graving docks, and on ways, gridirons pontoons, at all times, 87

in all places, and on all occasions, services and trades whatsoever and wheresocver, er steam, peg ay or sail; with 88

leave to sail or navigate with or without pilots, to go on trial trips and to assist and tow vessels or craft in distress, but if

without the pallet of Underwriters the Vessel be towed, except as is customary or when in need of assistance, or under- 90

takes towage or salvage services under a pre-arranged contract made by Owners and/or Charterers, the Assured shall notify Under- 91

writers immediately and pay an additional premium if required but no such premium shall be required for customary towage by the 92

Vessel in connection with loading and ——— With liberty to discharge, exchange and take on board goods, specie, 93 -°

} and stores, wherever the Vessel may call at oc proceed to, and with liberty to carry goods, live cattle, &c., on deck 94

or ise. io.

Touching the Adventurcs and Perils which we, the said Underwriters, are contented to bear and take upon us, they are of the Seas, 96

Men-of-War, Fire, “Lightning, Earthquake, Enemies, Pirates, Rovers, Assailing Thicves, Jettisons, Letters of Mart and Counter-Mart, 97

isals, Takings at Arrests, Restraints and Detainments of all Kings, Princes and Peoples, of what nation, condition or 98 -~

quality soever, Barratry the Master and Mariners and of all other like Perils, Losses an Misfortunes that have or shall 99 —

come to the Hurt, Detriment or Damage of the said Vessel, &c., or any thereof; excepting, however, such of the fore- 100

poing Perils as may be excluded by provisions elsewhere in the Policy or endorsement. And in case of any Loss or Mis- 101

ortune, it shall be lawful and necessary for the Assured, their Factors, Servants and Assigns, to suc, labor and travel for, in, and 102

about the Defense, Sef and Recovery of the said Vessel, &c., or any part thereof, without prejudice * this Insurance, to the 103

Charges whereof the Underwriters will contribute their proportions as provided below. And it is en,ressly declared and 104

that no acts of the Underwriters Assured in recovering, saving or preserving the property insured shall be con- 105

Jay ase sys sem J]

yuem Joy

UT $2905 JTB 30

ay) (pry

*(,0u yo

way) 39° ‘4

yaesapy.) oy) $9 Porrjep Ayearshyd SeIqCL)

y ap nq

yeasoy) sdw233e Aue yo 30

(ue SulpuTysyyi mon

Ase3ju0) ayy 0) Jury?!

09330

1 ‘30 P2UJIIUO) [35S9A

ys Bu!

This insurance also specially to cover (subject to the Average Warranty) loss of or damage to the subject matter insured 107

directiy caused by the following:— 106

Accidents in loading, discharging or handling cargo, of in bunkering ; 109

Accidents in going on or off, or while on drydocks, greving docks, ways, gtidirons of pontoons; 110

Explosions on shipboard or elsewhere ; | Lil

Breakdown of motor or other electrical machinery and electrical connections thereto, bursting of boilers, break- 112

of shafts, of any defect ic the machinery or hull, (excluding the cost and expense of replacing or repairing the 113

ective part) ; ae ‘i 114

Contact with Aircraft or with any land conveyance; ; . Ws

Negligence of Master, Charterers other than an Assured, Mariners, Engineers or Pilots; 116

Provi such loss o damage has not resulted from want of. due diligence by the Assured, the Owners or of the 117

Vessel, of any of pong Masters, Mates, i Pilots or Crew not to be considered as part owners within ing of 118

the

In the event of accident whereby loss or damage may result in a claim under this Policy, notice shall be given in writing 120

to the Underwri where practicable, prior to survey, so that they may appoint their own surveyor if they so desire. The 121

Underwriters shall be entitled to decide the port to which-a damaged Vessel shall proceed for docking or repairing (the 122

actual additional expense of the voyage arising from compliance with Underwriters’ requirements being refunded to the 125

ase) ay ul

Buiyr) Aue 30

yuswass0pus Aq pamsut 33j82

‘samod & YIM BONPTDIOSSE

dx2 ‘uorst]]0> apnj>x2 OU I]

fue ‘uOtst;jo> 8 jo

‘2935 PIRUBIITA 05/8

‘O10g 24) UO

$1 ‘UlQJIY “PAAJOAL! [98S2A 32420

vontsind ys Aq “Pss2AQ sy JO

*‘A1Og aya Ul poutEyUO)

30 UOISO]

*2st.asryo JO

Pojursew $! auEINSUI SIYY

UIMUWISIOPUS UNS

1 ‘ua {=qrz “voNNO

yo aw) ul J2UN94-8

Kese uit 1—e}U0)

rys 3

In cases where a temler is accepted with the approval of Underwriters, an allowance shall be made at the rate of 30 128

per cent. per annum on the insured value for each day or pro rata for part of a day from the time of the completion of the survey 129

until the acceptance of the tender provided that it be accepted without delay after receipt of. Underwriters’ approval. e, 130

No allowance shal ‘me during which the Vessel is loading or discharging cargo or bunkering. 131

Due credit shall be given against the allowance as above for ¢ any amount-recovered:— 132

‘Iv JO ane

jo 2W) UT J394)94%

UNeOB JO prxy

2233

“

allowed in General or Particular Average; 7 144.

(b) fadm third parties in respect of damages for detention and/or loss of profit and/or running expenses, 134

for the petiod pel oy by the tender allowance or = part thereof. | Y 13

Notwithstanding anything hercin contained tu the contrary, thig Polic is warranted froe from Particular Average under 137

3 per cet. or unless amounting to $4,850., but nevertheless whdn the Vessel shall pave been stranded, sunk, on fire, or in 138

collision wigh any other Ship Vessel, Undegwritegs shall pay damage occasidagd thereby, a the expense of sighting 139 —

the. tom, fier. stsanding, shall id, i incurred, evpn if no plamigg found. | r 1

— Groundiag in the Panama ; n the !anchtster Ship Cagal or its connections,jor in ¢ t Mer. 141

above Rock Perry Slip, o¢ in River Plate (Above /a line drawn from ¢ orth Rasin, Buenos Aires, to the memh of 142

the San Pedro River) of its tribttaries, or in thé Dan or Demerara Riv

to be a stranding. . vd dan ie ivers of, on the Yenikale Bar, shall noe deemed 143

Average pavable on each valuatiép separately ‘or on the whole, without deducti i : ‘hethe

Average be Particular or Gencral. ie’ m aa Se oe 146

No claim shall in any case be allowed in respect of scraping or painting the Vessel's bottom. 147

ovr. Vat, ° ‘ 4

3 parately insured, and a vorege shall commence at the Assured’s election when the Vessel either Gaia to cach " ;

- , ast to a luading port. Such voyage shall continue until the Vessel has made not more than three passages 3

} pe ye more pe: two ses with cargo Sargent ng first occurs) and extend further until the Vessel thereafter begins to . 15

| _—— p Ray s (whichev - occurs), but such extension shall not exceed 30 days in port. A passage shall be deemed 152

a q 0 rom the commencemcnt of lod the first = or place of loading until completion of discharge at the last port or 153

rom

ify

ye wy

XS (Auiwso

, aaoge ap apassadns ||

30 ‘UOIDIIIN

hyousse 2

Zursists pan

a#ewep _ —

ywoy 8

53g) satey

Je 10 XQ Dr ans

JO QuIW & UEY)

( opedso3

pai

‘foend 30 ‘wos pss

e ysule

:1j0g ay) Jo uotstaosd Ase3}00% be (ininu our a02ss0dNs TUS PUF yunowrsrd aq jjrys Queew Fuiaojzjoys 2) *sJ9

_ voyage a

cargo or sails 1

wodraa Aue Aq pasnr> asurdxa 30

3u21381|2q

‘bmod

place of discharge, or, if the Vessel sails 1 the or place of dep.

» OF, eparture until arrival at the first or pl

eng aa other than a port or place of refuge or a Povt.gg place for bunkering only. Each period in port of 30 days # geste of 30 133

- between passages shall itself constitute a oa = sposes of this clause. When the Vessc! sails in ballast to effect 156

a — such sailing or passage shall be considered = Mth previous passage. In calculating whether the 3 per cent. 157

° c $1,850. Poragesne Particular Average occurring outside the period iewsed, by this Policy may be added to Particular Average 158

— within such period, providing it occur on the same voyage as above SeGned, but only that portion of the claim ans- 159

ng wether the period covered by this Policy shall be recoverable hereon. A voyage s be so fixed that it overlaps another 160

voyage on which a claim is on this or the preceding of succeeding Pulicy. Particular Average which would be excluded 161

3s satin. ! 162

US YIWISUOIUT IIE SUI} 3194) IFYI JUIIXI Hy) 0) fjv0

(a) in respect of fuel and stores and wages and maintenance of the Master, Officers and Crew of any member thereof —133-— ee

—

iM re “fh 3)

Se NN AG SS aan tee Fy abet

ngs "ean

‘ @2OBRPORATEO 1875"

Cc 0 -. 2

Provisions REQUIRED BY Law To Be Statup 0 ruis Potacr:—This Policy w in = stock corporation.

Ju Witurss Wherrst. this Company has executed and attested these presents; but this policy shell

not be valid unless countersigned by a duly authorised Agent of the Company.

«Ap Nw os os | a fa ms

2”

1OR MAIOEN LANE NEW Yo Re Ss 8

- 2S

' &

re wat ae ee

Z i

b fel iat

n Or

_._ * any

‘4 Ba .

20132

as T a: ’ r

BO RMS aM FIP: .; ) 7 rea

bia)

' for boepitel medical. or other expens*a necessartly and ror eos yo. >°

' Pepery to, er ilinens of any memivr of the crew of the vos~.) oomed met mero any ether pereorm coeds

w shall alee incinde burial! expenses not exceeding Tuc Hundred ($200) Dollars. when necesear > ary

te laczrred dy the Assured for the burial of any reaman of said vessel

Gee reettriation expenses of any meater of the crew of the vessel same Ss oon. necessarily and -oaaer

rete s\ek wher. oll gallon eyeepiing Beck expenses. ss arin. wt oa! - enswe from the term > 8 1o@

in accerdance @ the terma therosofs ior Sv ome ca mst or 8. sale of the said vexsel of b>

of the Aseured. Wager shal) be included in auch expen-)- wher pavadie under sajotery oSile +! bem,

mampleywment coe to the wreck or joss of the sitd vesse!

@ ae a ae one’ Teperty ce «ech -) ~

. aa br « oun 1 ree mashed re Fee . s@ch (met) «oadd eat be covered

onmes eae the Inet tebe Pies ‘eats Decenber 1. 195) Pep

fineluding the four fourtae rannang-down clone!

ge ander tis clause sha!) be sattled os the prop sek of --es lab |}:ttee to the game extent only es provide’

o fowr fourth: ranning-<cown clanse above mentored

to wader thie clanse cha!! be divided among the several clacsen of ati eoumerated in thia policy and

Gass Nnal] de object to the deduction and special ennditions applicable ir respect of xuch class.

dimg “be foregoing, if amy ome o- more of the various liabilities arising frem such collision has beam

seJed er usted without the written consent of the Assurer, the Aseurer rha!) be reliewed ef

fer any aed all - under this claure

m heer of of ms te omy offer wemmal oc craft. or to property ow such ether vessel or craft, act cham.

metal amcih bhi: canes wet ertee ho reasen of a contract made br the assured.

wer be a veld gha'r ccorernder byt for the fact that the damaged preperty belougs to the acount. the

bs Baelde as ‘ff 7saeh damaged aroperty belonged to apother. bet as ———__

werretin ender any sther ipeurnpce applicable on the proparty.

mo grees: t,he, baat tenis ern,

ewweds be a wayid chet beroweder bet fo) A> em the 2-

= eeepc = intl, coca ~ Mbt fam mm ws . ~“—_ 2

rt ceherede Warned ih the policy ehduld be Included)

be Veasal “i Far’

o- ~ ae - - ~* - ° Seeetine. wil = te lit igs mene - om 1 epee? *

ee eee a — eae 7 — <0 wn. ele «--. + + —aneGas

o- - ~- . ba - @ = ° - ~~ = i ee t+ ce et ree ~

Sot god .

- t ;

eg apt 6 Kind

oo t oeyrante

ao]

ee —a eee ee | cecmentg— —eenlipe © R —NE

"$30,000 Hull 8/i/s3 | B/L/SL

and ‘achinery

—

Rt no aay Sheng aman Se eee - ete + ns oS Ses Pe Sm a a et

| For v Sh received, the ufidersigz.ed ase

HOMAL py tc the order of THE FIRST .

| L BANE OF MIAML at its oilices in Miami,

Plorida Ot TRACGASS THREE HUMDRED men

VIVES ANDO HH te ee * #76/

im it stallinents ag outlined in. the PA

; SCHEDULE set ‘orth herein.

’ ‘The assured authori.es the bank to pay thd

amour.t Of the premium (aftet ew — te +.

the insutance company

2 The assured fepresents that he has ri

obligated himae!! to pay the dewe puyment to

ingurcnce coinfany.

a . oS BN oft is warranted that the assured otal od

ia As ties ihsurance described and receipt

b= a ‘s acknowledged

fi ® .

mount 4: 4 AS eedinty for the indebtedness’ @¥

of Pa) hereby the assured assigns to the Bahk Athy

-— Seg sii suma which may be or becertie poyetlé to him

under tr on atoount of sald pality, {Preiatecll Rg,

een eg 6 ' (a) Ang teturn premium whith

| | pom under the polley vrai bao

a a i ae a: |

| (b)

= eo ae

as shown below:

-— — tee epee - - a ane seta» sellatnonn <ccl

A payment on agoount of lose

pally. Provided, howewsr, tint

a matigages shel: net be ailertee.

ont Installments

yh ate

posiepings/iy/53

, |

‘110g 2 UO

JUIUISIOPG YNS

Ajuo AGLTE, sazoge ap apossadns 4/Fys

Average pavable on each valuatién sepatately ‘or on the whole, without deduction of thirds, new for old, whether the

Average be Particular of Geocral. ‘ .

No claim shall in any case be allowed in respect of scraping or painting the Vessel's bottom.

. | ne :

JUIIKI 24) 0}

‘Socsid 30 ‘wos

Aq pasnrd wsurdxa 30

PPL é Accidents ia gaing on or off, cs while on drydocks, greving docks, ways, gridirons or pontoons

® Explosions on shipboard os elsewhere ;

ae eEag Breakdown of motor or other electrical machinery and electrical connections thereto, burst ey Ny

ag Fah 3 of shafts, of any defect ia the mechinery of hull, (excluding the cost and expense replacing of

taae “~ tdenive gent) :

ott ies > Contact with Aircraft or with any lend conveyance; , si

& ™ igence of Master, Charterers other then an Assured, Mariners, Engineers or Pilots; :

iP a3is X Provided toch loes or damage has not revulted from want of due diligence by the Assured, the Owners ot Managers-of the

£sX" == + Vessel, of any of them. Masters, Mates, Engi Pilots o¢ Crew not to be considered as part owners within the meaning

ree : Se ee wr ay a result cl under this Policy, noti shall be given in writing

A «= & . , . im icy, ice

ene es : to dia Uatereri * Sa ee es i in a tng pine theirs own surveyor if they so desire. bo

7? Ae: = Underwriters shall entitled to decide the port to which a damaged Vessel shall proceed for docking of repairing (

ae 2 2 2 ? actual additional expense of the voyage arising from complicace with Underwriters’ requirements being —— to ie)

5 2 ATS. Assured) and Underwriters shall also have a right of veto in coanection with the place of repair of — rm propos

oak 2 $ and whenever the extent of the damage is ascertainable the majority (in amount) of the Underwriters may A = be re.

5 4” «= quire to be taken tenders for the repair of such damage. In the event of failure to comply with the conditions of this clause

ERX $3 2 15 per cent. shall be deducted from the amount of the ascertained claim. S ; ;

qf ako : In cases where a temier 1s accepted with the approval of Underwriters, an allowance shall r made : the cd of 30

So 79°53 gf per cent. per snnum on the insured value for each day of pro rata for part of a day from the time of the completion . survey

8"5255 S until the acceptance of the tender provided that it be accepted without delay after receipt of. Underwriters approval. \_-

S Me aga . No allowance shall be made for any time during which the Vessel is loading or discharging cargo or bunkering.

2 “te a> ¢ Due credit shall be given against the all6wance as above for any amount recovered :— | ;

= § 37 2.4 E (a) in respect of fuel and stores and wages and maintenance of the Master, Officers and Crew ofr any member thereo

woae: 5S allowed in General or Particular Average; ae

pee | a (b) frdm third parties in respect of damages for detention and/or loss of profit and/or funning expenses ;

ae a 23 el for the petiod covered by the tender allowasce or any part thereof. ae

om a - rU Cl tained tu tl trary, thig Polic is warranted frce from Particular Average unde

= ‘ yy 3 a. ae ae +“ $4,850. but nevembelian w | 2 the Vessel shall pave been randed, sunk, on fire, or in

3 3 per cert. 3 ghtin

B 35 socollision wigh any other Ship essel, Undegwritegs shall pay damage occasiondd thereby; and} the expense ,of sighting

g aw 3 the. byttom dfter. stsanding shall id, if ccayypably, incurred, even if no pamgae found. | ee

‘ a. 2 round@g in the Panama Suez 1 ce the \!ainchtster Ship Carjal or its connections,[or in ¢t t Me

7 is < above Rock Ferry Slip, o¢ in River Plate (Above ja jine drawn from ¢ orth Rasin, Buenos Aires, to the |mouth of

232 3 ie Sig ex River) of its tribttaries, or in thé Dantbe or Demerara Rivers orf on the Yenikale Bar, shall noe deemed

to be a siranding. : ‘ :

SoBe *

sig F

voyage a

cargo or sails 1

‘ : e* es OM ; . Peegy * . . was) ° ‘ . < )

‘parately insured, and a voyage shall commence at the Assured's election when the Vessel either er to load

ast to a loading port. Such voyage shall continue until the Vessel has made not more than three passages

of not more than tw ges with cargo (whichever first occurs) and extend further until the Vessel thereafter begins to

load cargo of sails (whichev st occurs), but such extension shall not exceed 30 days in port. A passage shall be deemed

to be from the commenccincnt of lod® t the first port or place of loading until] completion of discharge at the last port or

place of «discharge, or, if the Vessel sails st, from the ~ or place of departure until arrival at the first port or place

ace for

thereafter other than a port or place of refuge or a Porto pl bunkering only. Each period in port of 30 days in excess of 30

days between passages shall itself constitute a agrees for the purposes of this clause. When the Vessc! sails in ballast to effect

considered part Of-the previous passage. In calculating whether the 3 per cent.

asusdx> 10

‘Surpuens *(0

W033 05/2 ° 95139490 JO |

vodro.a Aut

‘390d 3U2I28iJaq & sUIEJe 30 Aq Hr ajrsoy F

oper

dauinage repairs such sailing or passage shall

or $4,850. is reached, Particular Average occurring outside the period ¢ by this Policy may be added to Particular Average

occurring within such period, providing it occur on the same voyage as above @efaned, but only that portion -of the claim aris-

ing within the period covered by this Policy shall be recoverable hereon. A voyage shiatl-agt be so fixed that it overlaps another

voyage on which a claim is made on this or the preceding or succeeding Pulicy. Particular Average which would be excluded by

' , shaig Deoliop-ahell Sage tins Ber am ae helen eet $4850. is sath }

No recovery for a Constructive Total Loss shall be had hereunder unless the expense of recovering and repairing the Vessel

shall exceed the insured value.

In ascertaining’ whether the Vessel is a Constructive Total Loss the insured value shall be takcn as the repaired value, and

nothing in respect of the damaged or break-up value of the Vessel or wreck shall be taken into account.

In the evynt of Total or Constructive Total Loss, no claim to be made by the Underwriters for freight, whether notice of

abandoumcnt has been given or not.

_In no case shall Underwriters be diable for porepaired damage in addition to a subsequent Total Loss sustained during the

period covered by this Policy.

General Avcrage, Salvage and Special Chatges payable as provided in the contract of affreightment, or failing such pro-

vision, or there be nv contract of a in accordance with the Laws and Usages of the Port of New York.

Provided always that when an adjustment accomling to the laws and usages of the port of destination is properly demanded

by the owners of the caggo, General Average shall be paid in accordance with same.

put

eam haoy

Zurynsas 30 Aq pssned

Burhojdwe sem

asodind ay} 30j

past © sso 30 334

Apposip pasne ssajun sy ss

4WjO3j

yTTRsSog jo so

3o $3i

MOPOIPes JO VOTSSY IWO}E

_ Queires sup Pp

ag aS | And it is further agrced that in the event: of salvage, towage or other assistance being rendered to the Vessel hereby

sa 5°” insurd by any Vessel belonging in part or in whole to the same Owners or Chartcrcrs, the value of such services (without

ra © regard to the common ownership or control of the Vessels) shall be ascertained by arbitration in the manner below provided for

“BRS under the Collision Clause, and the amount so awarded so far as applicable to the interest hercby insured shall constitute a

= charge under this Policy. . ?

3 8 When the contributory value of the Vessel ‘is greater than the valuation herein the liability of these Underwriters for Gen-

<= eral Average contribution (except in to ammount made good to the Vessel) or Salvage shall not exceed that

‘Q0J0j UI SUTEWI JUIWIEIOPUD JSIJ JEM LPNS arya AfUO PUE WIYSISUOIU! BE SUFI) 3194) IY)

proportion

Q of the total contribution due from the Vessel that the amount insured hereunder bears to the contributory value; and if be

cause of damage for which these Underwriters gre liable as Particular Average the value of the Vessel hasbeen reduced

r for the purpose of contribution, the amount of the Particular Average claim under this Policy shall be deducted from the

amount insured hereundcr and these Urderwfiters shall be liable only for the proportion which such net amount bears to

» the contributory value. 7

g In the event of iture under the Sue“and Labor Clause, this Policy shall pay the proportion of such expenses that the

Q amount insured h bears to the insured value of the Vessel, or that the amount insured hereunder, less loss and/or damage

payable under this Policy, bears to the actual value of the salved property; whichever proportion shall be less.

aim for admitted under incurred in excess

abe jon of such excess that

deduction for loess of damage) bears to the sound value of the

a3rhoa ay

Jem JO VONTEPOP 8 3q aay) 3942:!~

shall c@me into colligon with anv cgher Ship or Vess¢l and the

the insured [Vessel being #t fault shall bgcome liable to pay and shall

pay by way to any other $ any sum or sums fM respect of such collision, we, the Underwriters vil pay the

Assured, or the Chartetrers, or the Surtty, whi r shall have paid, such proportion of such sum or sums so paid as our respective

subscriptions hereto bear to the value of the Vessel hereby insured, provided always that our liability in respect to any one such

collision shall not exceed our proportionate past of the value of the Vessel hereby insured. And in cases where the liability of

the Vessel has been contested, or proceedings have been taken to limit liability, with the consent in writing of a majority (in amount)

| of Hull Underwriters, we will also pay a like proportion of the costs which the Assured or Charterers shall thereby incur, or be

i | | compelled to pay; but when both Vessels are to blame, then, unless the liability of the Owners or Charterers of one or both such

Vessels becomes limited by law, claims under the Collision Clause shall be settled on the principle of Cross-Liabilities as if the

Owners or Charterers of each Vessel had been compelled to pay to the Owners or Charterers of the other of such Vessels such one-

half or other proportion of the latter's damages as may have al properly ailowed in ascertaining the balance or sum payable vy or

to the Assured or Charterers in consequence of such co!lision; and it is further agreed that the principles involved in this clause

', shall apply to the case where both Vessels are the , in part or in whole, of the same Owners or Charterers, all questions of

pint: 4 fe and amount of liability as between two Vessels being left to the decision of a single Arbitrator, if the parties can

agree upon a single Arbitrator, or failing such agreement, to the decision of Arbitrators, one to be appointed by the Managing Owners

or Charterers of both Vessels, and one to be appointed by the majority (in amount) of Hull Underwriters interested; the two Arbi-

trators chusen to choose @ third Arbitrator before entering upon the reference, and the decision of such single, or of any two of such

three Arbitrators, appointed as above, to be final and binding. Provided always that this clause shall in no case extend to any sum

which the Assured, or the Charterers, or the Surety, may become liable to pay or shall pay for removal of obstructions under

statutory powers, for injury to harbors, wharves, piers, stages, structares, or any other objects (excepting other Vessels and prope

thereon), consequent on such collision, or in respect of the cargo, baggage of engagements of the Ins Vessel, or for loss of life,

or injury. And ided also that in the event of any claim under this clause being made by anyone other than the

Owners of the Vessel insured, he shall not be entitled to recover in respect of any liability to which the Owners of the Vessel

as such would not be subject, nor to a greater extent than the Owners would be entitled in such event to recover.

‘rie tanmnn nid cuniltalcits of Gila form are to be ccgended os wubstivaied for those of policy form to which it is attached, the latter being hereby

waived, except provisions required by law to be inserted in the Pol ;

szouanbesu0d 3y} JO UWUIEIIP JO yUTEIISII “ySI4IE

ry ‘featu Zurursarew Ayoune due sopnput 32

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poorap

Aseyty

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# Baye BIN Ras aw ns te Ew te

< : — tra he ul7Pecumi avplus

ef 2 copy af this careiad end aisen

voto 2 ee oe Ok ae ws

interest on botii trem dute of

by the assured to cance! the

tion go tha: ine retyrm premiums

L tregn flab insuramce company ai retum or :

Ke " tieaned. In the event of camceffation the bunk shall be under ae eee

. oe TRUs inn te te a eee a

’

9 eh Capered appoints ths bank as gttorney-in-tcxt ‘> collect ar.d receive aij retuare ar

migens, as opt forth herein, and to cxyecule any 2: essary instrucne:nts 10 release and aayuit jad

hs Qemnperry. . \

A. ln. the event *t becomes necessary to collect ar sums due hereinunder by

-, og pay ail expenses lor the enfcrcersent berec!, including reasondhie

di - her the ig obligated therefor or nat. oe

. * the , eae policing ..ove' ny the surance ia u.c* he agent of the bonk, and bas no aulhe

eS ts bang in any wise i

* 7

40. This agreement sha: ce oonsirued as a Monmcacentract | . ;

& Bue itis ae

oI a ms

ure to such A te is sesensiaall

vbligatiens of the L.surance

egd the within c-ntroct-on which (obs ox,

were made to him no repr

ve =

Mr. Dow: ;

Has the defendant got the original? We asked for

it. I think we were given a photostat, were we not?

Mr. Willner:

The defendant produced a photostat.

Mr. Batchelor:

I think you produced a carbon copy of the original.

Mr. Dyer:

, There is no question about it, is-there?

Mr. Dow:

- The Court might like to see it.

Mr. Dyer: |

It contains a good deal, I think, of irrelevant in-

formation.

The Court: \

1 think he is going to give it now, isn’t he? Go

ahead with your testimony.

Mr. Dow:

Yes, sir.

The Witness:

The hull was checked. A lot of new planks were

put in the ship. The caulking was re-caulked. The en-

gines were completely overhauled, and copper ex-

haust pipes renewed for both engines. The batteries |

weré put in lead boxes. The fuel pumps “were put in

order. The wiring was rechecked throughout. The

COZ svstem was checked throughout. All connections

Oe ee eee

y i

forward were plugged off and were taken out and

new planks put in. There were two seacocks aft.

They were left there, but they were plugged up. Her

stuffing boxes were checked and repacked. The vessel

was completely overhauled to my satisfaction.

(By Mr. Dow):

Q. Nothing else remained to be done that you

wanted done; is that correct?

A. Yes, sir, except a trial trip. A trial trip was

run.

Q. Did you go aboard on the trial trip?

A. No, sir, -I didn’t.

Q. You accepted the results of someone else's opin-

ion on the trial trip? .

A. Mr. Beriinski did. He was going down in the

ship.

Q. Have you confidence in Mr. Berlinski?

A. Yes, sir, I have.

Q. You showed the certificate and all of this to

the insurance company? \ a

A. Yes, sir.

Q. Did you give an opinion of the value before

she left?

A. Thirty thousand dollars. The replacement value

-sixty thousand.

Q. May I glance at nes a minute?

A. Yes, sir.

Mr. Dow:

Mr. Willner, do you have our copy?

Mr. Willner: |

It is in the file.

Mr. Dow:

Your Honor, i offer in evidence a certified copy of

Mr. Stuart’s report, consisting of three pages, as

Plaintiff's Exhibit No. 2.

Mr. Batchelor:

We object to it as immaterial. The witness is here

in person, and testified as to his opinion.

The Court:

Hasn’t the witness covered all the substantial ques-

, tions involved in this particular inquiry?

Mr. Dow:

I think he has, except one or two.

The Court:

I think it is umnecessary and would encumber the

record. Objection sustained.

(By Mr. Dow):

Q. Were you called in by the insurance company

to make any investigation after the loss?

What is the purpose of that inquiry, Counsel?

Mr. Batchelor: :

I object, as immaterial. .

The Court: *

Mr. Dow:

The purpose of the inquiry, Your Honor, is to point

out after the loss the defendant, instead of employing

its own surveyor, who was probably one of the most

competent men on the east coast—that includes New

LMP GOALIE AN GATS ELIE it

York as well—calis in another hurveyor who never

saw the ship or had nothing to do with her in any of-

ficial capacity, and who never consulted Mr. Stuart.

The Court:

This witness was not called in; is that right?

‘

Mr. Dow: '

‘That is right.

The Court:

That is a negative question. Objection sustained.

Mr. Dow:

Thank you very much, Mr. Stuart. That is all.

Cross Examination.

(By Mr. Batchelor):

@. Can you tell us the date, approximately the

date, when you surveyed the vessel here in Miami

that you have just told us about?

Mr. Dow:

Objection. That is the purpose of the offer of the

report. All of that is contained in here.

The Court:

Objection overruled. The date? .

The Witness:

It was around July 2lst. I wrote a letter July 21st,

1953.

(By Mr. Batchelor):

Q. Is that the approximate date when these in-

spections took place? :

A. That is when f wrote the letter to the insurance

company about the vessel’s business or what trade

she was going into. The final survey was—the pre-

liminary survey was written July 21st, 1953.

Q. I take it, then, that your inspection of the ves-

sel, that you have told us about, took place prior to

July 21st, of 1953?

A. Yes, sir, it did.

Q. You never saw the vessel after that time, or

that approximate time?

A. On August Lith I wrote the company, saying

all recommendations were being complied with and

she was going on her trial trip, she was leaving if

the trial trip was successful.

Q. Do you have any recollection of ever having

seen the vessel again after that date?

A. No, sir; I never saw the vessel after that date.

Q. That is August 11th, 1953?

A. Yes, sir.

Q. Now, Mr. Stuart, assume that the Sea Pak had

not been aground after you last saw her or had been

in any accidents since you last inspected her in Au-

gust of 1953. do you feel, based upon your experience

in the marine field, that condition which you saw her

bottom in in 1953 would permit you te express any

opinion as to the seaworthiness of her bottom a year

later, in August of 1954?

Mr. Dow:

Objection. That is entirely irrelevant.

Mr. Batchelor:

The boat sank—

Pa —

ary

Pw:

Sl Mitchie aksied ach nts nak PO IPN AOD ORS SP RER OSES OO Ae E

The Court:

The question is whether he feels that he is quali-

fied to express an opinion, isn't it?

Mr. Batchelor:

Yes, sir.

The Court:

It is not an inquiry along the line of whether he is

an expert here.

Mr. Dow: |

If that is the question, I withdraw my objection.

Mr. Batchelor:

I didn’t ask him to express an opinion. I asked him

if he felt he could express an opinion.

The Court: A

I understand.

Mr. Dow: |

I withdraw my objection.

(By Mr. Batchelor):

Q. Proceed, Mr. Stuart. Would you care for the

question to be read to you?

The Court:

He may not understand that. It has a peculiar legal

meaning that he may not be familiar with. However.

it is a factual matter you have asked him. . eae

Mr. Batchelor:

Read the question.

(The pending question was thereupon read by the

reporter. )

(By Mr. Batchelor):

Q. If you don’t understand it, I will be glad to

repnrase it.

The Court:

Counsel, do you think that is,a qualifying question?

That has to do with the very thing that we have

under investigation here. This witness has heretofore

in this Court, and offered to here, given us testimony

as to his experience in this particular field. Do you

want to have him express an opinion about whether

the bottom of this ship was likely to, well, let us say,

spring a leak without any hazard having intervened,

or the contrary? Hadn’t you better inquire into his

knowledge of the cause of this accident, what would

be the effect, and that sort of thing? As I understand

it, Mr. Stuart, you are a surveyor, a marine survey-

or; is that the correct title?

The itness:

Yes ‘sir.

The Court:

As such, you have peculiar knowledge with refer-

ence to the seaworthiness of a vessel, such as the

one involved in this case?

}

~ The Witness:

Yes, sir.

The Court: |

I take it you have some experience in analyzing

losses of ships that were sunk on account of some

defect in the hull or something that happened to the

hull which caused water to get in and the ship to go

down? |

The Witness:

Yes, sir.

The Court:

I assume further that you could tell us about what

The Witness:

Yes, sir.

The Court:

It might be well if you would give us briefly. what

experience you have had in actually examining cases

of that kind and your knowledge bearing on that par-

ticular thing, your experience or your accumulated

experience in connection with leaks that occurred in

the hull of a vessel that caused it to go down, and

likely what causes that to happen, with particular

reference to the ship in this case, which you inspect-

ed. I assume you inspected the hull?

The Witness:

Yes, sir.

The Court:

You made a careful examination of the hull?

The Witness:

Yes, sir.

The Court:

The construction of it?

The Witness:

Yes, sir.

The Court: | | |

You might see fit to examine the witness along

that line, prima faciely to establish his standing as

an expert.

Mr. Batchelor:

We prefer to waive further examination of Mr.

Stuart at this time. If we see fit we will call him

later as our witness. : on

The Court:

Very well.

Mr. Dow:

I will concede that Mr. Stuart is one of the ablest

surveyors in the east with respect to| the very thing

that Your Honor was directing his questions to.

The Court:

Would you have any objection to opposing counsel

asking for his opinion about what caused this leak

or caused the ship to sink?

Mr. Dow:

No, sir. Anything that Mr. Stuart wishes to testify

to I would not object to.

The Court:

Then, the capacity of this witness as an expert

has been admitted by opposing counsel. Do you want

to pursue your question?

Mr. Batchelor: ° .

We prefer to wait and call him as our witness.

The Court:

Very well.

Mr. Batchelor:

We would like to have him remain under. the sub-

poena.

The Court:

Very well

(Witness excused. ) ‘a

STUART N. WILLNER, was thereupon called as a

witness on behalf of the Plaintiff, and having been

first duly sworn, testified as follows:

Direct Examination.

(By Mr. Dow):

Q. Will you give your full name and address to

‘the Court, please?

A. Stuart N. Willner. 3 Sidonia Avenue, Coral

Gables, Florida.

Q. What is your business?

A. I am in the fishing business in South Caicos.

British West Indies.

Q. Did you purchase the business from Mr. Barba?

A. That is correct.

Mr. Dow: |

If I am leading him, Mr. Batchelor, it is only in

the interest of saving time.

Q. Did you pay for it?

Mr. Batchelor:

I object whether he paid for it or not.

(By Mr. Dow):

Q. Did you owe Mr. Barba any money?

Mr. Batc#elor:

I object.

Mr. Dow:

Was that sustained?

The Court:

I haven’t ruled on it. It is not in issue here. The

whole question here is what caused the boat to sink.

It did sink, evidently; nobody denies that. It was in-

sured for thirty thousand dollars. Nobody denies that.

What we have got to find out here is what caused it

to sink, then we will try to see whether or not that

¢gause is covered by the policy, and if it is the de-

fendant, the insurance company, is bound to pay, re-

gardless of what it cost him. If pursuant to some

reason other than a reason covered by the policy,

no matter what it cost him, he can’t recover.

Mr. Dow:

Will you, counsel for the defense here, concede, so

that I will know where I am’ going, and I can avoid

questions which tend to support our point—will you

concede that there is no question whatsoever on the

part of the insurance company that there was any

deliberateness on the part of the plaintiff in the loss

of the vessel?

Mr. Batchelor:

Any what?

Mr. Dow:

That there was no deliberateness.

Mr. Batchelor: :

I understood the issues were made by the plead-

ings, and there is no plea of that type in the file that

I know of.

Mr. Dow:

I don’t understand the answer. I never have, clear-

ly. To say it is not a loss covered under the policy

could impute dishonesty to the plaintiff; it would im-

pute lack of good care; it could impute lack of due

diligence on the part of the owner in seeing that the

captains were ‘supplied with whatever they needed, or’

asked for, rather. It may impute that, or that we

would have to prove exactly, deeper than any man

has ever gone alive and come back, ywhat it was that

caused the ship to sink. It may impute most anything

to just use that particular general term. All I am try-

ing to do, and have been fron the beginning, is to

get the defendant to narrow it down, tell me exactly

what they are complaining of, I can confine my

proof to that.

Mr. Batchelor:

Our answer is very simple. It covers less than a

page. It denies the material allegations of the com-

plaint, which say the boat was lost because of perils

of the sea.

Mr. Dow:

That is what I mean. The perils of the sea, as the

Courts have said, are indefinite and could be any-

thing.

The Court:

If the proof were of tat character here you will

have the defendant—well, I shouldn’t say behind the

8-ball, but you will have the defendant scurrying for

proof to the contrary, I expect.

Mr. Dow:

You see, we admit that under the cases we don’t

have to show exactly what caused her to go down.

All we have to show is that we insured her: her sea-

worthiness was admitted by the defendant at the time

the policy attached; the seaworthiness presumably

continued: arrangements were made to re-insure her

on the same terms and for the same premium; sud-

denly she went down. I wish I knew why, for sure.

The Court:

Nevertheless, the burden is on you to establish the

case, isn’t it?

Mr. Dow:

The only thing I have to establish is she sank.

The Court:

Is that all?

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‘ty

Mr. Dow:

Yes, sir.

Mr. Batchelor:

If Mr. Dow thinks that is all he has to establish

we will agree she sank and he can rest his case.

Mr. Dow:

Getting back to the request for a stipulation in the

beginning, will you agree that the Court may deter-

mine from Captain Mills’ testimony, if you like, as

it is in the deposition that has already been taken,

as far as he knows she sank. If you will agree that

that is it, that she sank, then it becomes a question

of law, as I said before, which the Court has got to

decide, anyway. It already has our brief on the law.

I don’t wish to debate it with counsel. Will you stipu-

late to that now?

Mr. Batchelor:

We will stipulate to one fact, that the boat sank.

Any other fact will have to be introduced in an order-

ly fashion. ;

Mr. Dow:

I am still. somewhat at sea, and I don’t know

whether I am afloat or not. I presume I am to con-

tinue.

The Court:

I suppose so.

(By Mr. Dow):

Q. Did you owe Mr. Barba any money? >

-o¢

Mr. Batchelor:

To which we objected.

The Court:

I think that is immaterial. Whatever he owed, if

anything, would not make any difference. If the loss

of the ship was on account of the hazards mentioned

in the policy he would be entitled to recover the full

amount of the policy.

Mr. Dow:

I have had a good deal of experience in trying just

these cases. I often find that much is often made of

business relations, which might indicate that the ves-

sel owner needed some fast money, leaving the slight-

est implication that perhaps he cast her away. That

is why, unless the defendant will come clean with me

on this thing, I am trying to protect my clients on

those points, however irrelevant they may appear at

the time.

The Court: ‘ 7

That is not even intimated in the pleadings.

Mr. Batchelor:

No, sir.

The Court:

Has there been any plea, affirmative plea, that this

ship was sunk deliberately or that there is any fraud

in this case?

Mr. Batchelor:

There is nothing in our answer on that.

ee nee

Mr. Dow:

What is your answer?

Mr. Batchelor:

There is nothing in our answer on that phase of

the case at all. |

The Court: a

I think you should go ahead with your case here

and prove the circumstances under which this boat

sank. I think, of course, your testimony on the condi-

tion of the ship, when it weit to sea it was in good

condition, that there was no apparent reason for it

to spring a leak and become full of water and sink.

that would be a circumstance. a reasonable inference

that it might have been caused by coming in contact

with something under the water, we will sav. and it

made a hole in it, or for some other reason. Aren’t

you going to have to establish some set of circum-

stances, if you have no direct proof. that would raise

a reason ble conclusion that the ship sank by one of.

those perils of the sea which are specified in the

policy or by law is included in the policy? -

Mr. Dow: -

- That is a matter of law in the interpretation of the

policy, which is for the Court. Our position on that is

in our brief, our trial memorandum. Rut I cannot

see how the defendant here can be so vague as to

its defense at one time. so broad and so general. and

then won’t agree to such a simple stipulation as T

was willing to make in the beginning. T have got to

cover every possible contingency with such a broad.

general defense that it does not come under the pol-

icv. A lot of things don’t come under the policy

Mr. Dow: >

Everything in the world, except a few things that

are in there, doesn’t come under the policy. That

doesn’t help me.

The Court: |

I suggest you proceed ahd give us whatever proof.

you have in connection with the sinking of this boat.

You see, I only learn what the defendant “dons not

contend by the objections they make to the questions

1 ask my witness.

> a

The Court:

‘It is not so important what they contend -as it is

what you'can prove right at this stage.

Mr. Dow: =” A oe

I will make the statement definite, so we will avoid

the obvious objection, that the plaintiff has claimed

in addition to the loss of the thirty thousand dollars

some additional losses as a result of the defendant

not paying the claim when it should have. I must go

into the details, |

Mr. Batchelor:

I am not going to object to going into that. The

complaint demands damages of thirty thousand dol-

lars with interest ané costs and nothing else.

Mr. Dow:

It demands attorney fees as provided by Florida

law. I think we amended the tomplaint Wasn’t that.

complaint amended? —

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’

Mr. Willner: .

At this time I move to amend the complaint in-

stanter, Paragraph 8, substituting the names of Arthur

L. Willner and Wilbur-E. Dow for that of Flowler,

White, Gillen, Yancey and Humkey.

Mr. Batchelor:

No objection. ¢

Mr. Dow:

Was there a subsequent amended complaint for

loss of profits?

Mr. Willner:

No, sir.

(By Mr. Dow): /

Q. Were you compelled to employ counse] in an

‘attempt to collect this claim?

A. Yes, sir.

Q You employed our office: is that correct?

A. That is correct.

Q: When the vessel was in Caicos fishing after

you purchased: it, how long did vou operate that busi-

ness before she was lost, approximately?

A. I would say approximately ten months.

Q. Will you tell us what that vessel] did and its

importance or otherwise with relation to the business

as it was done before the ship arrived or you have

operated since?

Mr. Batchelor:

We object.

Mr. Dow: .

So the Court will get an idea of the type pf vessel

it was.

Mr. Batchelor:

We object to any testimony about the operations of

the business down there.

The Court:

Well, if counsel means the activity of the ship in

the water, what kind of work it was doing, that might

be relevant. f

Mr. Batchelor:

I_understood his question to go much further, than

that, to talk about its importance to the business.

The Court:

The question today is how this boat was used, what

it was used for, and how it was managed and where

it went in. connection with its work.

(By Mr. Dow):

Q. You tell the Court that. Address your reply

tight to the Court, not to me.

A. The boat operated out of a little harbor down

in South Caicos. It went on voyages of approximately

sixty to seventy miles on the average. It stayed out

anywhere from one week to three weeks, collecting

fish with a fleet of fishermen. These fish would be

put into:the boat, be washed, cleaned, frozen. quick-

frozen, and then packed and: stored, until the boat

‘accumulated a load of fish, in which case it would

return to port and put the fish in a holding box, to be

sent by air to Miami.

Q. Did you replace this ship?

PE" SOO OEE

Mr. Batchelor:

I object.

The Court:

What do you mean, replace it?

(By Mr. Dow):

Q. Did you buy another one like her or build an-

other one like her?

The Court: | :

That would not make any difference. If he lost this

one under the terms of the policy he would get

thirty thousand dollars, whether he bought another

one or not.

Mr. Dow:

Very well, sir.

Q. At any time, or from time to time did you re-

ceive. any reports from the captain of the vessel as

to the manner in which she operated or any circum-

stances surrounding her operation?

A. _ Yes. I was always quite interested in the boat,

aS you can imagine, and always asked the captain,

Mr. Berlinski, the condition of the boat when she

went out and when|she went in, and all particulars

concerning her, because I realized she was such an

important asset to o business down there.

Q. What was the nature of the replies or reports

you received from the captain?

Mr. Batchelor:

I object. That is hearsay testimony.

The Court:

It certainly is. Where is the captain? He is the one

who can tel! us about thet.

Mr. Dow: ~

He is here.

The Court:

Is he going to testify?

Mr. Dow:

Yes, sir.

The Court:

All right.

(By Mr. Dow):

Q. Did vou at any time ever receive any requests

for parts or equipment from the captain?

A. Certainly. I always received requests.

Q. Raise your voice. The Court can’t hear you.

A. We always received requests for caulking, paint;

and parts.

Q. Did you always fulfil those requests?

A. Yes. We had to. It was our business to keep

that boat in good condition. ,

Q. Did at any time the captain ask you for any-

thing that he considered necessary where you dis-

agreed with him and wouldn’t send it to him?

A. No. We had the utmost faith in Mr. Berlinski

and anything he asked for he always received.

Q. After the loss of that ship did you make a

report to the underwriters’ agents here?

A. That is correct.

Q. Did you receive your insurance money?

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A. No, we didn’t.

Q. Did you offer to make a full disclosure and

make your personnel available to the defendants or

their representatives after the loss? :

A. Yes. At all times we wanted to cooperate as

much with the insurance company as we could, be-

cause we realized that a quick settlement of this

claim would have helped us get started to build an-

other boat and send :t down there. As a matter of

fact, I can remember where we even offered to fly

the insurance company in this case down to South

Caicos at cur own expense to make sure the matter

was settled to their satisfaction, but, of course, they

subsequently refued. |

Q. There is no regular air service there?

A. No, there is not.

Q. At that time you had your own plane that was

flying the fish out?

A. Well, no. The plane didn’t fly fish out. It was

used mostly for personnel and executive transporta-

tion. We had our own air service to the island, which

was the most convenient way to get there.

Q. At any time, Mr. Willner, did you ever receive

from Captain Berlinski- or Captain Moran or anvbody

else down in South Caicos any reports concerning

the condition of the Sea Pak that would indicate she

was unsatisfactory?

A. No, never.

Mr. Dow:

Your witness.

Cross Examination.

(By Mr. Batchelor): |

Q. When you bought this vessel or business, what-

ever it was, and you took over down there, as I under-

stand it, the vessel was already down in South

Caicos; is that right?

A. That is correct.

Q. So, the’ ten months you are referring to that

you operated it, at the time you operated the vessel

and when you bought it, she was already down in

South Caicos and was operating? |

A. You are correct.

Mr. Batchelor:

si is all.

(Witness excused. )

LEONARD O. BERLINSKI, was thereupon called

as a witness on behalf of the Plaintiff, and having

been first duly sworn, testified as follows:

Direct Examination.

(By Mr. Dow):

Q. Will you state your full name and address to

the Court? ,

A. Leonard O. Berlinski, 456 Northwest 4th Street.

Q.. How old are you?

A. Forty-eight years old.

Q. haa is your business?

A. I do repair business for Benjamin & Jay Cor-

sanetinn.

isa ct ok Cee aaa

“BDI Se TEN 8 Hon) hat eRS

. 99

Q. What business are they in?

A. They handle service materials, generators, Dei-

sel engines and other equipment.

Heavy machinery?

That is right.

Are you also a captain?

Not at the present time.

Not at the present time. Are you also able to

command a ship?

A. Yes, sir.

Q. Will you tel] the Court just how many years

you have been associated with vessels? Not me; the

Court. I only ask thé questions.

A. Well, ever since I was eighteen years old.

Q. At one time did you work for Mr. Barba in the

reconstruction of a vessel-which subsequently became

the Sea Pak?

A. That is right.

Q. Were you in charge of that reconstruction?

A. Yes. °

Or OPO

Q. Was that reconstruction done under the super:

vision of a surveyor?

A. Yes,. sir. IX

Q. Who was the surveyor and who sent hiny there?: ; ; 4

A. Mr. Stuart. I don’t know the company’s name; *

offhand, but it was Mr. James Stuart was the “str-

veyor. i | 7

Q. Was he working for the vessel] owner or the

underwriter, if you know?

A. He was working for the underwriter.

Q. How often did you see Mr. Stuart during the

reconstruction of that vessel?

A. Well, at first he used to come around there

probably several times a week. After that we would

call him on anything we were not Sure about. We

lees,

would call him and he would come down and advise

us what to do.

Q. How long have you known Mr. Stuart?

A. I wouldn’t say how many years offhand, but it

has been a long time.

Q. Ig you have confidence in him?

A. Yes, sir, I certainly do.

100

Mr. Dow:

Your Honor, and Mr. Batchelor, to cut this short, I

am going to eliminate any question as to the manner

in which the vessel was reconstructed. There is a

great deal of detail to it. I think we can save all of —

that, because by what has already gone before I don’t

think it is any longer material, if it ever was.

Q. Was a certificate subsequently issued by Mr.

Stuart?

A. Yes. As far as I know, yes.

Q. Was it likewise inspected by the Coast Guard?

A. Yes, sir.

Q. Did they find everything in order, or did they

find things not in rer?

A. They found everything in order.

Q. Were you required to have a Coast Guara-<er-

tificate?

A. We were required to have a boat inspection. I

don’t recall—We were not required to have steamboat

inspection.

Q. Did you discuss the vessel with Mr. Stuart

after the work was completed?

A. Yes, sir.

Q. What did he say to you?

A. He said the boat was all right, as far as—He

said it was in seaworthy condition.

101

Q. Did you have any discussion with the Coast

Guard after they completed their work?

A. No discussion, except that they made an in-

spection of the boat.

Q. You took her down to Caicos?

A. That is right.

Q. And there you operated her in the fishing busi-

ness? |

A. That is right.

Q. From the time you first went down there, how

_long were you there before you left?

A. Just about a year.

Q. Now, will you tell the Court, please, and not

me, because J] think I know, but the Court doesn’t,

how that vessel performed, what you did to her, if

anything, from time to time and the manner in which

she fulfilled the purposes that I suppose were expected

of her at the time she went down there?

A. Well. as far as the vessel is concerned, it

worked out exactly as we had expected. It certainly

was good for the business, and we would make regu-

lar trips with it. As far as having trouble, it certainly

was giving us al] we expected from Ler.

Q. Did you have at any time any leakage in the

hull, or damage to the hull? )

A. As long as I was aboard only the normal leak-

age you would have in that type of vessel.

Q. Explain to the Court where that comes from?

A. Well, it comes through the stuffing boxes and

so on and so forth. You will have a little seepage here

and there, because it was a plank vessel,’ which was

perfectly normal.

Q. Was there ever a wooden ship built that you

ever heard of, Mr. Berlinski, that didn’t have a cer-

tain amount of seepage in her bottom?

102

A. Never, not that I know of.

Q. Did you ever have any trouble with her pumps?

A. No, sir, not while I was aboard her.

-Q. Did you have any trouble with the main en-

gines?

A. On several occasions, yes, we had trouble with

the engines, which you do on all vessels.

Q. And they were repaired?

A. That is right.

Q. And the ship was in good shape when you left

her?

A. That is right.

Q. How many days were you gone before she was

lost?

A. If I recall, approximately two weeks. I won't

say definitely. That is approximately.

Q. Now, how long did you work with Captain

Moran?

A. Well, I had known Captain Moran before I

sailed for South Caicos with the vessel.

How long had you known Captain Moran?

I hadn’t known him before.

That is the first time?

That is right.

So, you had known him for about a year?

That is right.

He was with the previous owner the same as

you were?

A. No, sir. For a short time he was, yes.

Q. So, when the present owner bought the vessel

or the company you stayed with the company and

Captain Moran stayed with the company?

A. That is right.

Q. You turned this ship over to Captain Moran

before you left?

OP>POroOoro

¢,

103

A.. Yes, sir.

Q. Will you tell the Court your opinion of Captain

Moran as a successor?

A. As far as I know, he is successful in handling

a boat of that size. I thought he did quite well. I

have no reason to believe he couldn't.

—. Had he handled it before for you while you

were—Did he ever handle the ship before for you?

A. Yes, he did. He took over for me one time

when d@ had an infection in my arm. I had to come

in. He brought the boat in for me.

Q. How long did he replace you that time?

A. I think about three days.

Q. From time to time did you have reason to call

upon the vessel’s owners, the assured here in this

case, for parts, supplies, equipment or tools of any

kind for the maintenance, upkeep and repair of the

Sea Pak? -

A. Yes, certainly.

Q. Tell the Court the nature of what you would

ask?

A. Well, I couldn’t remember.

Q. Roughly, generally.

A. I couldn’t give you any detail. There were

paints, engine spares, and so ferth: the normal re-

pair parts that would be required in the operation of

the vessel.

Q. Did you receive them promptly?

A. . Yes, sir.

Q. Did you ever ask for anything you didn’t get?

A. No, sir. ee:

Q. Did you ever have any difficulty with the hull

of the ship and, if so, tell the Court what it was,

when, where and what?

104

A. As long as I was on the boat I never had any

difficulty. We always made periodic inspections of

the hull as to her cleanliness on the bottom, which

we could do by going under the boat and checking it.

Q. When and where did you go under the boat,

what sort of people did it, and what would you do

when .you got there?

A.* I was under the boat myself on several oc-

casions. We scraped the bottom with .a brush to keep

it clean, as you would on any other wood vessel.

Q@. You mean to remove seaweed and moss?

A. There would be stuff like that, yes, sir.

Q. What difference does it make if that grows

there or not?

A. It reduces the speed of your boat, which is not

—which was not the real problem down there; how-

ever, it keeps the boat clean.

Q. When you keep’ a hull clean what has that got

to do with the length of life of the hull itself, if any-

thing?

A. Well, I don’t know as it would affect the length

of life, because—I don’t really think it would make

any difference in that respect, but certainly in opera-

tion it should be done to keep up the boat.

Q. Why do you want to keep her up? That is what

I am trying to get at. What was the point of it?

A. To keep her clean.

Q. Cleanliness is virtue in itself; is that the idea?

A. I would say so, to our ship, yes.

Q. Did you employ divers down there?

A. Yes. We had divers down there on several] oc-

casions.

Q. What did the divers do?

A. Well, they would primarily come down there to

catch crawfish.

PIPER US) OF Beli EF OR RN

105

Q. They worked for che company by diving under

and getting crawfish; is that it?

A. That is right.

Q. They are American boys here from the main-

land, or are they natives, colored natives from Caicos?

A. No. They were American boys.

Q. They bring their own equipment with them, do

they not? —

A. Yes, sir.

Q. Just what did you ask them to do, or what did

they do at any time, if you can remember?

A. At one time they went under the boat to make

&n inspection, because they had masks, so they could

make a thorough inspection.

Q. By a mask you mean something over the face?

A. That is right. %

@. And air comes into it?

A. That is right, so they could stay under there

as long as they wanted to to make that inspection.

Q. Approximately when was such a thing done?

A. Qh, that was—I don’t remember the exact time,

but it was probably two weeks before I’come back,

the last inspection. }

Q. It would be sometime in July, then, is that it?

A. I would say so. ;

Q. And the vessel was lost, was it not. on Friday,

the 13th of August; is that correct?

A. That I couldn’t tel] you. the date: I don’t know

the exact date.

Q. Did the divers make any report to vou after

they were under there?

A. Yes. They said it looked all right.

Q. In your opinion, were they competent to judge

that?

106

A. Well, I guess anyone is competent to judge that

as long as they have eyes to see. I really don’t know

their qualifications as to vessels or anything, because

I hadn’t known the boys long enough for that, but

would say yes.

Q. In other words, if there was a hole there you

could see it; is that it?

A. You could see it, yes.

Q. If there was a plank split—

A. Or a loose plank, yes, they certainly should be

“able to see it. :

Q. Did thesdivers Say that they found any holes?

A. I don’t recall what the conversation was after

they come up. They found some holes, and they were

plugged, and I believe we talked about that at the

time. I tried to explain to them that there Were some

seacocks which come through the Lottom and should

not be mistaken for anything.

Q. Will you explain to the Court what : you mean

by a seacock coming through the bottom, what it

was used for and what the purpose of it was?

A. A seacock is used both for engine cooling and

also for refrigeration. There is a hole through the

bottom of the boat, which is lined with a brass fitting

and fastened to the seacock on’ the inside of the hole;

on the outside it looks like a plain hole through the

bottom of the boat. There are water intakes and dis-

charges, both for refrigeration and engine.

Q. How many were there in the bottom of that

ship? ;

A. Well. I would have to--

Q. Approximately, if you know.

A. There are four onthe engines_and two for the

refrigeration, and there 4Avere several othe holes for

the toilets, and so on and so forth. \

hls YK itt AN BEALL BRED was 26 ge

, 107

Ate: \- rk

Q. Will you explain the difference _ to, the.’ ‘Court

between holes such as you have just des¢ribed in both

appearance and size and a hole, for example, which

might have been caused. by hitting a rock?

Mr. Dow:

Maybe I insult the Court’ m intelligence by asking so

obvious a question, but you may wish Mr. Berlinski

to answer it.

Q. Go ahead.

A. If there was a hole in a hull that was put there

by a drill, or something like that, it would certainly

be smooth. If it were pushed through by hitting a

submerged object or running aground, or something

like that, it would be ragged; it would be splintered

and the planking would be tore up. It certainly would

not be a round hole.

Q. Were there any of those intakes or discharges

in the bottom of the ship—Al] vessels have some-/

thing like that, do they not?

A. Yes, sir.

Q. Many or less, depending on the meee:

A: That is right.

Q. Were there any there that were not directly

connected to any of the main engines or refrigerating

machinery?

A. Yes. There may have been several. I believe

there is two in the engineroom that were not in use

at the time.

Q. How did they happen to be thére and why were

they there and why weren’t they in use?

_ A. They were left there to install additiona] equip-

mest or large intakes, or something like that, but

they were sealed and capped on the inside. as well

as a seacock, I think, on the inside.

¢€

q ,

108

Q They: were there ‘at the time the vessel was -

reconstructed? 4

- A. Yes, sir. . :

_ Q° To Mr. Stuart’s knowledge?

\A. Yes, sir.

- Q To Mr. Stuart’s knowledge?

A. Yes, sir. ee ee -\ .

. @ Mr. Stuart approved of leaving them in there

' for that purpose? :

A. Yes, sir. f .

Q. Was there anything that Mr. Stuart ever want-

ed you didn’t do? ,

A. Not that I know of. In fact, if I wasn’t sure

I would call on him to help me out on that.

Q. How big were those holes, perhaps from the

discharges? How big are things like that? —

A Some are ose inch; some are two inches. I

believe two inches is about the largest we had.

Q. What would the two inch ones be for?

A. That would be a discharge from your lavatories

and the basin drains, and stuff like that.

Q. -If you plugged those up what would happen? .

A. Nothing would happen; you just couldn’t use

the facility aboard the boat.

Q. If you plugged up some of those unused over-

’ poard discharges: from the bottom as well as the

top, what would happen?

A. Nothing would happen.

Q. Yow have been about thirty years around ships?

A. At least that, I would say.

‘@. When you left the Sea Pak in South Caicos to

come home, I understood you to say for the first time

- ina year. will you tell the Court your ‘opinion of the

condition of that vessel as and when you turried her

over to Captain Moran? :

QqQ

109

A. Well, the only thing that I recall, Mr. Stuart

and I went out one Saturday afternoon and as we

were driving along Biscayne Boulevard—

Q. No. Excuse me. I*don’t think you understood

the question. Go ahead with the answer. Maybe you

did understand it. So, you were driving along with

Mr. Stuart. That is this surveyor that was here?

A. No, no. I am talking about Mr. Willner Stuart.

Q. Stuart Willner?

A.. My mistake. Perhaps I did say Mr. Stuart.

We were discussing whether or not I was going back

to work over in Caicos.

Q. That was amor you had been aare about two

weeks?

A. That is right. We were also eiikeiaisel the bill

of sale of the vessel for the fellow to sign. He asked

me at the time whether we should hau] the boat im-

mediately. I said, ‘“‘Yes, sir, it probably should be,

but we can work another season’ with it without doing

too much to it.’’ That is for painting, and so on and

so forth.

Q. You considered her in seaworthy condition at

the time?

A.~ Yes.

Q. Seaworthy enough to withstand another season

- “ef work?

' A. Another season if necessary, because the boat

was Amportant in’ the operation.

Mr. Dow: ~

That is all. Your witness.

_ The Court:

We will recess until 1:30.

110

(A recess was then taken until] 1:30 p.m. of this

date.)

Afternoon Session.

Miami, Florida,

September 27, 1955,

1:30 o’clock p.m.

The Court:

Proceed.

LEONARD O. BALINSKE, a witness called on be-

half of the Plaintiff, thereupon resumed the witness

stand and further testified as follows:

Cross Examination.

(By Mr. Batchelor):

Q. Captain, I believe you have testified that the

divers found a hole somewhere in the bottom of the

ship; is that correct?

A. Why. yes. They mentioned finding holes, yes,

sir. ;

Q. I believe you mentioned some kind of a plug

was inserted: is that correct?

A. That is right.

Q. After this episode with the divers did all of

your equipment on the boat which used these fittings

that went through the hole operate_properly?

A. Yes, sir. 7

Q. If plugs had been put in any of those particular

fittings they would not have operated properly, would

they?

A. That is right.

ill

Q. Now, you have mentioned, Captain, when the

boat was worked on here in Miami the year before

there were some of these pipe fittings that went

through the holes that were not removed from the

boat? | |

A. That is right.

Q. And they were not in use on the boat, but were

what I’believe you call blanked off on the inside, so

they are still in the hole if you want to use them

again?

A. That is right.

Q. Where were those fittings that were blanked

off in that manner?

A. There were two in the engineroom which were

never used.

@. Ore on either side?

A. No. I believe they were both on the port side

of the boat.

Q. How high up on the hull were they?

A. They were below the waterline.

Q. Approximately how far?

A. Oh, probably twelve inches below, if I remem-

ber correctly.

Q. Were there any other such fittings in the ves-

sel which were left and not used?

A. Not that I recall, no, sir.

Q. As a matter of fact, there were no more: isn’t

that correct?

A. I couldn’t answer that accurately that way, no,

sir. i

Q. Do you remember testifying on a deposition,

Captain, at Mr. Willner’s office on May 14th of this

year? :

A. Yes, sir.

112

Q. Do you remember my asking you this question

after you had testified about the two hole fittings

which were left in the engineroom: ‘‘Question: Were

there any others through the hull sheeting left in the

ship not in use?’’ You answered: ‘‘No, sir.’’ Do you

recal] that? 3

A. I don’t recall that.

Q. Where was this hole that the divers put the

plug in?

A. I don’t know where that hole was. They didn’t

tell me where it was. I was busy doing other things.

I don’t know where it was.

Q. Do you mean to tell me that as master of that

ship you knew that they had to put a plug somewhere

down in the bottom of the ship and you didn’t even

find out where it had been put?

A. Because I wasn’t concerned. Everything was

in working order. If they put it in one of the fittings

that weren’t used, which are always two or three

inches deep, that wouldn’t make any difference.

Q. Captain, do you remember talking with me in

the presence of a Court reporter in my office in Oc-

tober of last year?

A. Yes.

Q. On October 19th?

A. I don’t remember the date. I remember being

there.

Q. Do you remember my asking you this ques- .

tion: “Did you ever know where they put that plug

in down there? Answer: No. I don’t know. It was just

forward of the engineroom bulkhead.’* Do you recall

that?

A. I recall answering the question somehow. That

is approximately where they were under the boat.

Q. Just forward of the engineroom bulkhead?

~ A

113

A. Approximately, yes.

Q. I believe you testified here today with respect

to those divers you guessed they were competent

divers?

A. That is right. | ie

Q. Is that your opinion about those divers?

A.* I don’t know anything about diving—

Q. What was your opinion on this—

A. —whether they were competent or not.

Q. You don’t know whether they were incompetent

cr not, or were competent or not. What was your

opinion of them?

A. What do you mean, what was my opinion?

Q. From your observation of them out ‘there, as a

marine man when you saw them out there, what was

your opinion as to their competency and their capa-

bilities to go under and look at the boat?

A. I testified that they should be able to. Anyone

should be able to see a hole in a boat, but there is

a difference between holes. There is all sorts of holes

you can make. You can drill] a hole and you can

' have a hole that is pushed through the hull. They

certainly would look different.

‘ Q. Were you willing to rely on their judgment in

inspecting the bottom of that ship?

A. Yes, I would say so.

Q. At the instance when you were in my office,

Captain, in October of last year, do you remember

Saying this: ‘“‘Those two divers they had down there.

as far as I am concerned, are very responsible, but

as far as boats, they know nothing’’?

A. That is when they were through. I didn’t like

their actions in some instances, but as far as boats,

‘ T still say they may not know anything.

114

Q. You further said: ‘I wouldn’t pay any atten-

tion to them, anyway, because they are a couple of

irresponsible fellows, and I certainly could not go by

hat they say’’. Do you remember making that state-

A.\ That is correct.

4s a matter of fact, those divers were primar-

ily out there swimming around; isn’t that true?

A. That is right.

Q. They didn’t come out there for the purpose of

inspecting the snip?

A. I later learned that they had come 4, out there

to look at it.

Q. You didn’t request them to come out there, did

you?

A. No, sir. I didn’t.

Q. How much time did they spend looking at the

ship, Captain?

A. Well, that I don’t know. They were out there

for some time. I couldn’t tell you the exact time.

Q. What is your best estimate? You were on board

that day, were you not?

A. Yes, I was, but I had a lot of other duties to

do without paying attention to divers, swimmers or

people around the boat.

Q. What is your best estimate as to the amount of

time th

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