she was surveyed for the appellant by one Albert Crowe, a marine surveyor, who certified that he had examined the vessel and found her in good condition and suitable for the intended voyage and cargo. The vessel was loaded at Westport, Or. On the afternoon of September 26th, in attempting to pass out of Westport slough into the Columbia river at high tide, the vessel grounded, and remained aground until high tide next day, when she was pulled off by two tugs. She then proceeded on her voyage down the Columbia river to Astoria, where she was again surveyed by one Cherry, who appears to have been acting for surveyor Crowe, whose name was attached to the report. The surveyor reported that he had "held a final survey on the vessel and found her well laden and the deck load thoroughly secured. Consider vessel in good trim for making the intended voyage." After this survey, the vessel proceeded to sea on October 2d.

The Columbia river bar was rough, but Capt. Swenson testified that in his opinion it was not rougher than was safe for crossing. The captain testified further: After crossing the bar the vessel stood offshore on a port tack. After everything had been straightened up on deck, the captain directed the mate to sound the pumps, which he did, and found 15 inches of water in the well. This was the normal amount of water to be in the vessel after she had been lying in port for a time without being pumped out. The captain did not feel uneasy. Four hours afterward he sent down to try the pumps again, and it took a little longer than usual to pump her out; but he testified that sometimes there is a lot of drain from different parts of the ship, which probably caused the water to drain through the wells, and the men might not have pumped as hard as others, so he did not feel uneasy. The vessel stood on the port tack to about 128° west, or until October 4th. It then took the men about an hour in every four before they could free the ship from water; but this fact did not cause the captain to feel uneasy, for the reason that they had quite a breeze blowing, about 35 miles an hour or so. But the wind shifted to the southwest and increased, and the captain was compelled to put the vessel on the starboard tack. As he was well offshore, he could stay on this tack down the coast. When the vessel was put on the starboard tack, the sea was pretty rough, and she took an unusually heavy lurch to port, and the deck load shifted about four inches. The vessel then commenced to make water freely. Upon examination it was found that water was coming into the storeroom at the break of the poop-what was called the half deck. The water was pouring in there on the port side. The captain went forward and found the galley was flooded, the water coming in somewhere through the shifting of the deck load. The sea at that time was rough-very rough. The vessel lay over considerably. Most of the water was on the lee or port side. The vessel lying over on the port side caused this part of the vessel to get under water. This was sufficient to take in the water found in the vessel. It was at this time the captain sent the men down, and they worked for four hours without being able to get her free of water. Then the captain ordered the mate to start the steam pump, and something happened to be wrong with it; the captain did not know what it was. It happens sometimes that a piece of wood or something gets into the valve and clappers and prevents the pump from doing its work. The steam pump was last used at Astoria before leaving. The pump was then apparently in good condition, but it was not then used for the purpose of pumping out the vessel. At that time an additional section of hose was placed on the pump and was let over the side and the valve leading down into the hold was closed. Apparently the pump was in good condition, pumping the water over the side of the ship for washing down the vessel. When the captain found that the hand pump did not handle the water and the steam pump failed to work, he tried to get to port; he was trying to run for Cape Flattery, but the sea was rough and windy. On October 8th the steam pump was working. Had southeast wind from October 2d to October 8th. On the afternoon of October 8th, and some time after the steam pump had got to work, the vessel was struck by a heavy gale from the northwest. It came so suddenly that it carried away one of the boats hanging in the davits and lashed with double lashing. It tore the boat from the lashing and threw it out on the water, and, although the vessel was on the right tack for the wind to strike the sails, she almost went on her beam

ends. The force of the wind at that time was 100 miles an hour. The captain tried to get the vessel before the wind, but she was slow in getting there. For some time she was throwing herself on her beam ends. After the first heavy wind she righted herself somewhat, but during that heavy lurch she shifted her deck load considerably, and then she did not answer her helm. She went over so much that the water came up in the donkey room and put out the fire, and they were unable to keep up steam. The captain then tried to get her on the other tack, so as to straighten her up and pump her out, but he was unable to do so; she did not answer her helm. The vessel continued to fill. Early on the morning of the 9th the situation was serious. The captain concluded to try and jettison the deck load and preparations were made for that purpose, but before the preparations were completed the vessel laid over so much that the deck lashings parted, the deck load took a slide to port and up against the rigging, carrying away three masts-the main, mizzen and spanker-and the masts and deck load even with the rail went over the side. The wreckage was held by the forespring stay. To get rid of the wreckage it was necessary to cut this forespring stay. Volunteers were called for, and one man came forward and cut away the stay, and that released the vessel of the wreckage. When this was done they started to pump her out, but found that the water was coming in through the holes in the side caused by the chain plates tearing out. They then rigged a raft and went over the sides and plugged up the holes. They set the foresail and forestaysail, and hand-rigged some of it on a jury mast which had been set up in the meantime. Then a heavy gale set in from the southeast. When the deck load went overboard, something forward caused the connections between the donkey boiler and the fresh water tanks to break, and all the fresh water was lost. The donkey engine was then operated on salt water, and the vessel was nearly pumped out when a second gale from the southeast struck her and the vessel commenced to fill. This was on October 11th. The sea commenced to run over the vessel. The force of the wind was then about 50 miles an hour. The vessel was put before the wind, and they tried to steer for Cape Flattery. Sighted two vessels, but they failed to respond to the distress signals. On October 13th the schooner David Evans hove in sight, The crew insisted upon abandoning the vessel. They had been without fresh water for four days. The vessel was thereupon abandoned by the officers and crew, and they were carried to Astoria, Or., on the schooner David Evans, where they arrived on October 14th.

The tug Wallula picked up the vessel after her abandonment by her officers and crew and brought her into the port of Astoria on October 15th. On October 16th the manager of appellee, G. F. Thorndyke, served a written notice of abandonment of said vessel, and made claim for a total loss under policies of insurance, upon Frank G. Taylor, appellant's agent at Seattle, Wash. The abandonment was declined by appellant. Subsequently the vessel was libeled by the salvors for $34,000 salvage. There were no facilities at Astoria for repairing the vessel, nor could she be discharged, surveyed, or examined at that place. After the abandonment by the appellee, it was agreed by the appellant and appellee that the appellee should arrange to have the vessel taken up the Columbia river to St. Johns, near Portland, where she could be discharged and surveyed. The salvors would not surrender possession, nor take the boat to St. Johns, nor assume the expense nor the risk of towage from Astoria to St. Johns. The appellee thereupon, at the instance of appellant, applied to the United States District Court at Portland and obtained an order from that court in salvage proceedings permitting the towing of the vessel from Astoria to St. Johns and the discharging of the cargo, upon condition that the expense thereof should be paid by the appellee as against the salvors, and that the appellee would execute an indemnity bond to protect the salvors against the risks of the voyage. The bond was given by appellee, and the vessel was thereupon towed to St. Johns, the cargo discharged, and the vessel put in dry dock and surveyed. Subsequently representatives of the appellee arranged a settlement with the salvors upon the payment of $3,000 and for a release of the vessel from the custody of the marshal on account of the salvage claim and other expenses amounting in the aggregate to $8,433.52.

When the vessel had been surveyed, specifications for repairs were drawn up by representatives of the appellant and appellee, and bids invited from a number of firms on these specifications. These bids were as follows:

Thereupon the insurance adjusters made a statement of the expenses incurred subsequent to the written abandonment of October 16th by the appellee, apportioning the expenses that were for the joint benefit of the vessel and cargo between those interests, and charging to the owners the expenses that were for the benefit of the vessel alone. The joint expenses of vessel and cargo, including the $3,000 salvage award, amounted by this adjustment to $8,780.01. This was the general average charge for both the vessel and cargo. Of this amount the vessel paid $5,637.46 and the cargo $3,142.55. Appellant's proportion of the amount paid by the vessel, namely, $5,637.46, was the proportion which the amount insured, $30,000, bore to the value of the vessel declared in the policies, $45,000, making appellant's proportion the 30000/45000 part of $5,637.46, or $3,758.31. The additional expenses charged to the appellee alone, as found by the adjusters, amounted to $3,244.58. The appellant subsequently paid the appellee, through the adjusters, two-thirds of the vessel's proportion of the joint expenses of vessel and cargo as found by the adjusters, namely, $3,758.31.

Suit was brought on the policies on May 13, 1912, at Seattle, claiming a total loss. Appellant answered June 13, 1912, denying that the damages to the vessel amounted to total loss under the policies, but admitting its liability under the policies for its proportion of general average and salvage charges accruing from the preservation of the vessel and cargo. Subsequently, upon the completion of the average adjustment, it paid this proportion as a liability under the policies. On March 10, 1914, appellee filed an amended complaint, alleging a verbal abandonment of the vessel by the appellee to the appellant on October 14, 1911. On March 31, 1914, appellant filed an amended answer, denying the verbal abandonment of the vessel by the appellee on October 14, 1911, and setting up, for the first time, unseaworthiness as a defense to this action. The unseaworthiness of the vessel alleged in the answer consisted "in that she was leaky and her pumps were not in working order, so that the same could be used to keep said vessel free from water which entered her hull through said leaky condition, and that by reason thereof said vessel commenced to leak and became water-logged in fair weather immediately after starting upon said voyage; that all losses and damages suffered by said vessel upon said voyage were caused and occasioned by the aforesaid unseaworthiness of said vessel."

The policies in question were of the usual San Francisco hull time form insurance against total loss, and containing the following provision: “But no partial loss or particular average shall in any event be paid under this policy. This company not to be liable for any sums the insured may pay to another vessel, her cargo or freight, for or on account of collision." There was, however, written upon the margin of each policy the following clause: "This insurance is against total and/or constructive total loss of vessel, including general average and/or salvage charges and/or claims under threefourths (4) running down clause."

Edward J. McCutchen, Ira A. Campbell, and McCutchen, Olney & Willard, all of San Francisco, Cal., and Ballinger, Battle, Hulbert & Shorts, of Seattle, Wash., for appellant.

H. R. Clise, C. K. Poe, W. H. Bogle, C. B. Graves, F. T. Merritt, and Lawrence Bogle, all of Seattle, Wash., for appellees.

Before GILBERT and MORROW, Circuit Judges, and RUDKIN, District Judge.

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

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

"The adventures and perils which this insurance company is contented to bear, and takes upon itself, * are of the seas and all other losses and misfortunes that shall come to the hurt or damage of the vessel, * or any part thereof, to which insurers are liable by the rules and customs of insurance in San Francisco, including * the provisions of the Civil Code of California, excepting such losses and misfortunes as are excluded by this policy."

Section 2682 of the Civil Code of California provides:

"A ship is seaworthy when reasonably fit to perform the services, and to encounter the ordinary perils of the voyage, contemplated by the parties to the policy."

Section 2683 of the Civil Code of California provides that:

"An implied warranty of seaworthiness is complied with if the ship be seaworthy at the time of the commencement of the risk, except in the following

cases:

"1. When the insurance is made for a specified length of time, the implied warranty is not complied with, unless the ship be seaworthy at the commencement of every voyage she may undertake during that time.

*

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

[1] The burden of proving that a vessel is unseaworthy lies upon the insurance company. The presumption of law is that every vessel is seaworthy until the contrary is proved. Gow on Marine Insurance, p. 273; Arnould on Marine Insurance, par. 725; Adderly v. American Mut. Ins. Co., Fed. Cas. No. 75; Bullard v. Roger Williams Insurance Co., Fed. Cas. No. 2122; Lunt v. Boston Marine Insurance Co. (C. C.) 6 Fed. 562; Moores v. Louisville Underwriters (C. C.) 14 Fed. 226; Guy v. Citizens' Mutual Insurance Co. (D. C.) 30 Fed. 695; Earnmoor v. California Insurance Co. (D. C.) 40 Fed. 847; Nome Beach Lighterage & Transp. Co. v. Munich Assur. Co. (C. C.) 123 Fed. 820, 824; Thames & Mersey M. Insurance Co. v. Pacific Creosoting Co., 223 Fed. 561, 570, 139 C. C. A. 101.

[2] In Arnould on Marine Insurance, par. 726, the author says: "With regard to the means of proving that the ship was seaworthy or the reverse, the most satisfactory evidence is that of the persons who were em ployed to survey and examine the vessel."

Capt. Swenson, in his testimony taken in August, 1913, testified that he had two surveys made of the vessel. The first was made before the cargo was stowed, and the second after the vessel was loaded for her voyage. He produced these reports of surveys. The first was a report dated August 25, 1911, and the second was a report dated September 27, 1911. Both reports are signed by Albert Crowe, surveyor for the appellant; but the last report appears to have been actually made by one Cherry, Lloyd's agent at Astoria, for Mr. Crowe. The

first examination was made before the vessel was loaded, and certifies that the surveyor had "examined the vessel and found her in good condition and suitable for the intended voyage and cargo." The second examination was made after the vessel was loaded, and the report certifies that the surveyor had "held a final survey on this vessel and found her well loaded and the deck load thoroughly secured." The report further certifies :

"Consider vessel in good trim for making the intended voyage."

When these reports were offered in evidence, it was mentioned that Surveyor Crowe, who signed the reports, had since died. An objection was thereupon made to the reports, but withdrawn upon the suggestion of some further arrangement concerning this evidence. We do not find any further objection made to these reports, but they were admissible upon the testimony of the captain that he had had the surveys made and that these were the reports. Here was evidence of a very direct and positive character tending to prove that the vessel was seaworthy when she started on her intended voyage. To overcome this proof, evidence of a very clear and convincing character was required. Mere conjecture or suspicion that the vessel was not seaworthy was not sufficient.

In the original answer of the insurance company in this case, filed June 13, 1912, it denied that the damages to the vessel amounted to a total loss, but it admitted its liability under the policies for its proportion of general average and salvage charges accruing from the preservation of the vessel and cargo. In its amended answer, filed March 31, 1914, it repeated its admission of liability for general average and salvage charges, with the allegation that an adjustment had since been made of such charges, including expenses, and it had paid the appellee its proportion of such charges, and had been discharged from all liability for general average and salvage losses under said policies. The defense that the vessel was not seaworthy was as much a defense to a liability for general average and salvage losses as it was to a liability for a total or constructive loss. If the vessel was unseaworthy, the policies were void, and no liability was chargeable upon the insurance company. Arnould on Marine Insurance, par. 688.

We must assume, therefore, that when appellant filed its original answer it had no information upon which to base the defense that the vessel was not seaworthy when it sailed on the voyage on October 2, 1911, or, having such information, it waived the defense. When it filed its amended answer on March 31, 1914, more than two years and five months after the disaster, it set up for the first time the defense that all losses and damages suffered by the vessel on the occasion mentioned were caused and occasioned by the unseaworthiness of the vessel, and, specifying the particulars in which the vessel was not seaworthy, it alleged that the vessel was leaky and her pumps not in working order, so that the same could be used to keep the vessel free from water which entered her hull through said leaky condition, and that by reason thereof said vessel commenced to leak and became water-logged in fair weather immediately after starting upon her voyage.

This last allegation is not supported by the evidence. A vessel is wa