WESTERN ASSUR. CO. v. SOUTHWESTERN TRANSP. CO., 68 F. 923

PARDEE, Circuit Judge. This is a suit in admiralty to recover . for a partial loss under a marine policy of insurance. As the issues are presented by the libel and answer, the burden of showing that the model barge insured was seaworthy, and that the loss happened through perils of the river, is on the libelant. The issues are wholly of fact; and, the district court having found them in favor of the libelant in the court below (appellee in this court), Ave might affirm, on the general rule declared by this court in The City of Macon, 2 U. S. App. 396, 2 C. C.

A. 564, 51 Fed. 949: “On an appeal in admiralty a circuit court of appeals will not reverse the decision of a district court on a question of fact depending oh conflicting evidence, unless it clearly appear to be against the Aveight of evidence.” It is not necessary, hoAvever, to put our decision on such narrow ground, for from our examination of the evidence we find that it is decidedly in favor of the libelant on both propositions.

A review is unnecessary, and we only remark that to find that the barge Avas not seaworthy or Avas lost through other than perils of the river requires the rejection of facts, to wander into the domain of conjecture. In our opinion, the libelant proved its case. Our attention is, however, called to an error on the face of the record which requires a reduction of the amount awarded in the court below. In the policy of insurance, the model barge insured Avas valued at $2,000, and the amount of insurance was $1,250, or five-eighths of the value.

The rule in cases of marine insurance where a partial loss is incurred is that the insurer pays only such a proportion of the actual loss as the sum insured bears to the value of the property at risk. See Ang. Ins. (2d Ed.) § 249. The amount of loss proved in the case Avas $1,275.83. Five-eighths of the same amounts to $797.40. In the district court no exceptions were taken to the report of the commissioner as to the amount of damages libelant was entitled to recover. As the point is first made in this court, the reduction here allowed ought not to affect the costs.

The decree appealed from is amended by reducing the amount of recovery from the sum of $1,256 to the sum of $797.40, and, as thus amended, it is affirmed; the appellant to pay the costs of this appeal.