MORIAL, Judge.
We must decide if a yacht (marine) insurance policy covered the loss of the yacht "Bon Conge". Was the cause of the sinking due to a latent defect or unseaworthiness? The trial court found that the loss was the result of a latent defect and rendered judgment for the plaintiff for $8,609.00.
The "Bon Conge" was insured under Yacht Policy No. MYA 1783200 of Travelers Indemnity Company for the period July 1, 1969 to July 1, 1970. The Policy was issued through and signed by George S. Kausler, Limited, an agent of Travelers Indemnity Company.
On January 25, 1970, the plaintiff, Wallace C. Walker, was notified that the "Bon Conge" sunk at its moorings in Boathouse No. 11 at the New Orleans Marina at West End. He immediately went to the marina and found the "Bon Conge" submerged in ten feet of water; the plaintiff promptly contacted P. T. Baumgartner (Bumgardner) of George S. Kausler, Limited. Baumgartner (Bumgardner) met the plaintiff at the marina and told him the loss was covered. He advised the plaintiff to file a claim, have the boat repaired and keep a running tally of repair costs.
The sinking was caused from water entering the yacht through a hole in the bottom of the muffler, or "maxim silencer" as it is referred to in the record, which was partially concealed in its location in the engine room. This is not disputed.
POLICY
The pertinent provisions of the insurance policy under which the plaintiff claims are:
"Section A — Hull Insurance
"WHERE COVERED: — In part and at sea, under power or sail, in docks and graving docks, and on ways, gridirons, pontoons, and on shore. With leave to sail with or without pilots, to tow and assist vessels or craft in all situations, and to be towed and to go on trial trips.
"PROPERTY COVERED: — Hull, Spars, Sails, Tackle, Apparel, Machinery, Boats and other furniture of an in yacht hereby insured. * * *"
"EQUIPMENT ON SHORE: — It is also agreed that should any part of the furniture, tackle, boats or other property of the said yacht be separated and land up on shore during the life of this Policy, then this Policy shall cover the same to an amount not exceeding 20% of the sum stated in Coverage A, on Page 1. The amount attaching on the said yacht shall be decreased by the amount so covered.
"PERILS INSURED: — The insurance provided by this section cover against:
"(a) All risks of physical loss or damage to the property covered from any external cause.
"(b) Physical loss or damage to the property covered directly caused by the following:
(1) Explosions, bursting of boilers, breakage of shafts, or any latent defect in the machinery or hull (excluding the cost and expense of replacing or repairing any defective part;
(2) Negligence of master, mariners, engineers, repairers, or pilots; provided such loss or damage has not resulted from want of due diligence by the owner of the yacht or by the insured."
The defendant contends that the policy by its terms does not cover:
"* * * (a) Any loss, damage or expense caused by wear and tear, gradual deterioration, weathering, moths, vermin, mold, marine life or unseaworthiness."
The policy basically insured against "all risks of physical damage" for a definite period. Therefore, it is a time policy of marine insurance with an all risk provision.
One in which coverage attaches from the effective date and the risks are not limited to a given voyage, but to a certain fixed term or period of time. Black's Law Dictionary, 4th Ed.; 4A Appleman, Insurance Law and Practice, 1969 § 2656; Gulfstream Cargo, Ltd. v. Reliance Insurance Company, 409 F.2d 974 (5th Cir. 1969). See: Union Insurance Co. of Philadelphia v. Smith, 124 U.S. 405, 427, 8 S.Ct. 534, 546, 31 L.Ed. 497, 506.
Coverage under an all risks policy creates a special type of insurance. It extends coverage to risks not usually contemplated and avoids putting upon the insured the burden of establishing that the loss was due to a peril falling within the policy's coverage. The insurer can avoid coverage upon demonstrating that a specific provision expressly excludes the loss from coverage. 44 Am.Jur. 55 A.L.R. 941; 5A Appleman, Insurance Law and Practice, 1969 § 3251; Hughes v. Potomac Ins., Co., 199 Cal.App.2d 239, 18 Cal.Rptr. 650; Sun Insurance Office, Limited v. Clay, 133 So.2d 735, (Fla. 1961); Redna Marine Corporation v. Poland, et al., 46 F.R. D. 81, 86 (U.S.D.C., S.D., N Y 1969).
Under the "Perils Insured" provisions in (b) (1) is covered "* * * any latent defect in the machinery or hull * * *", and (b) (2) contains, with almost ritualistic uniformity, the historic Inchmaree Clause. 44 Am.Jur.2d, Insurance, Section 1383.
Inaugurated to overcome the decision of the House of Lords in Thames Mersey Marine Insurance Co. v. Hamilton Fraser Co., 12 App.Cas. 484 (1887), it takes its name from the Steamship Inchmaree involved in that case. The origin and development of the Clause is interestingly traced in the Arbitration opinions of John C. Prizer, National Bulk Carriers, Inc., S.S. Pan Massachusetts v. American Marine Hull Insurance Syndicate, 1949 A.M.C. 340, and of Claude E. Wakefield, Thibert, Owner of the Diesel Tug Dusty v. Union Insurance Society of Canton, Ltd., 1951 A.M.C. 1661, and the fascinating opinion of Judge Carter in Ferrante v. Detroit Fire Marine Insurance Co., 125 F. Supp. 621, 1954 A.M.C. 2026. Tetreault, Francis L., The Hull Policy: The "Inchmaree" Clause, 41 Tulane Law Review 325 (1966).
TESTIMONY
The uncontradicted testimony of the plaintiff was that: he purchased the "Bon Conge" in 1953 and in 1958 it was completely overhauled and outfitted with a new engine, including a new muffler, i. e., "maxim silencer". He was told the life of the muffler was 2500 hours and it should be replaced at the next overhaul of the engine; that the day the "Bon Conge" sank the engine showed 1400 hours. Periodically, mechanics inspected the engine and attendant equipment including the muffler. Once a year George Engine Co. would inspect the yacht. Each year the yacht was hauled from the water by Oulliber Boat Works and inspected from stem to stern. Oulliber had blanket authority to repair the "Bon Conge" or any of its parts anytime Oulliber deemed repairs necessary. Jules Schubert, a marine repairman, would periodically check the engines. At least once a week Jim Thomas, an employee, inspected the engine room, ran the engines and wiped off all parts of the engine including the muffler. Every Saturday he conducted an inspection of the "Bon Conge" which included running the engine, checking the muffler and the bilges and a complete check over. The day before the yacht sank he inspected it and ran the engine for fifteen minutes. (Tr.pp. 13-31)
Two witnesses appeared for the defendant-appellant; a marine surveyor who did not see the muffler, but expressed his opinion from facts provided by counsel for the defendant-appellant that the cause of the hole in the muffler was from rusting out (Tr. p. 146); the other, Manuel Joseph Stroecker (Stroker) a mechanic employed by George Engine Co., who replaced the muffler. He testified that the hole in the muffler was caused by "a wasting away or deterioration". (Tr. p. 110) Stroecker (Stroker) threw the "old" muffler away when he replaced it. When shown Plaintiff's Exhibit No. 5, that had previously been identified as the replacement muffler (Tr. p. 83), he could not identify it. (Tr. pp. 110-111)
LAW GOVERNING INTERPRETATION OF POLICY
We find that the policy is one of marine insurance and a maritime contract, though not within the exclusive admiralty and maritime jurisdiction of the United States courts. Insurance Company v. Dunham, 78 U.S. (11 Wall.) 1, 20 L.Ed. 90 (1870); Kossick v. United Fruit Co., 365 U.S. 731, 735, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961).
The interpretation and application of the policy terms are to be governed by state law. Wilburn Boat Company v. Fireman's Fund Insurance Company, 348 U.S. 310, 75 S.Ct. 368, 99 L.Ed. 337 (1955); Irwin v. Eagle Star Insurance Company, Ltd., 455 F.2d 827, (5th Cir. 1972). However, to interpret the disputed clause and the law applicable, we rely on general maritime law which governs policies of marine insurance. Anders v. Poland, 181 So.2d 879 (La.App. 4th Cir. 1966).
In determining the meaning of the terms of the policy we are guided by what was said in Henjes v. Aetna Ins. Co., 132 F.2d 715, 719 (2d Cir. 1943), cert. denied, 319 U.S. 760, 63 S.Ct. 1316, 87 L.Ed. 1711 (1943):
"It is a general rule of construction that where the language of a policy of insurance may reasonably be construed in more than one way the meaning beneficial to the insured is to be given effect by resolving fair doubts against the insurer who chose the language which created them. Ashenbrenner [Aschenbrenner] v. United States F. G. Co., 292 U.S. 80, 54 S.Ct. 590, 78 L.Ed. 1137; DeHart v. Illinois Casualty Co., 7 Cir., 116 F.2d 685. That is particularly applicable to a time policy of marine insurance."
LATENT DEFECT
Our court first defined latent defect in 1943 as follows:
"A latent defect is a hidden defect and generally involves the material out of which the thing is constructed." Ross v. Tynes, et al., 14 So.2d 80, 83 (Orl.App. 1943).
This definition was later applied in Schon v. James, 28 So.2d 531 (Orl.App. 1946), and since has been sanctioned by other cases in the jurisprudence of Louisiana, none of which involved a marine loss. Our examination of the jurisprudence of other states and federal cases dealing with maritime law reveals that our definition of latent defect that has its origin in Ross v. Tynes, et al., supra, is incomplete.
A latent defect is defined in Black's Law Dictionary, 4th Ed., as a defect which a reasonably careful inspection would not reveal or a defect that could not have been discovered by any known or customary test.
A latent defect is a defect which is not apparent and which would not be discoverable upon reasonable inspection. Zillah Transportation Co. v. Aetna Insurance Co., 175 Minn. 398, 221 N.W. 529 (1928); Reisman v. New Hampshire Fire Insurance Company, 312 F.2d 17. (5th Cir. 1963)
Latent defect means a defect not manifest, but hidden or concealed and not visible or apparent; a defect hidden from knowledge as well as from sight, and specifically a defect which reasonable inspection will not reveal. Glens Falls Ins. Co. v. Long, 195 Va. 177, 77 S.E.2d 457 (1953). See also Reliance Insurance Company v. Brickenkamp, 147 So.2d 200 (Fla.App. 1963); Watson v. Providence Washington Ins. Co., 106 F. Supp. 244, appeal dismissed, 4 Cir., 201 F.2d 736.
From the foregoing we are compelled to conclude that a necessary element is not present in the Louisiana jurisprudential definition of latent defect. That necessary element is that to be latent a defect must not have been discoverable upon a reasonable inspection. We restrict the definition of "latent defect" in Ross v. Tynes, et. al., supra, to the facts of the cases where it has been cited. A classic definition of latent defect is found at 26A C.J.S. Defect p. 133. Accordingly, we deem a proper definition of latent defect to be a defect that is hidden or concealed from knowledge as well as from sight and which a reasonable customary inspection would not reveal.
A hidden defect * * * not manifest, but hidden or concealed, and not visible or apparent; a defect hidden from knowledge as well as from sight; * * * a defect which reasonably careful inspection will not reveal; one which could not have been discovered by inspection * * * by any known and customary test.
The defect was certainly latent. The hole in the "maxim silencer" could not be discovered because of the partially concealed location of the "maxim silencer" in the engine room of the "Bon Conge".
The fact that this record stands uncontradicted that the "Bon Conge", just the day before it sank, was in good shape clearly demonstrates that the "maxim silencer" sprung the leak. There is no basis for concluding that the defect could have been discovered.
If the matter is approached from the viewpoint that the owner, without the benefit of any presumptions must affirmatively establish that the particular defect was latent within the classic meaning of the term, the result is the same. Since the insurer's assertion of unseaworthiness is, in fact, a claim that the "maxim silencer" was defective, it was either latent or not latent. If it was not discoverable by known and customary tests, it was latent and covered under the policy. The policy, as is usually the case, did not prescribe any requirement for routine periodic inspections of the yacht, or that the owner obtain any certificate of inspection.
On this record the owner did all that prudence required to ascertain or discover any defect; he did all he could do, yet discovered nothing defective.
SEAWORTHINESS
Defendant-appellant is correct in its contention that when a vessel sinks in calm waters, a presumption arises that the vessel was unseaworthy in some particular. South, Inc. v. Moran Towing Transportation Co., 2 Cir., 360 F.2d 1002; Star Towing Company v. Barge ORG-6504, D.C., 301 F. Supp. 819, 822. An insured can rebut the foregoing presumption by establishing that the vessel was seaworthy before the sinking. Boston Ins. Co. v. Dehydrating Process Co., 1 Cir. 204 F.2d 441. The seaworthiness of the "Bon Conge" before it sank was established by the uncontroverted testimony of the plaintiff.
More important, under the American Rule, unlike the English, there is an implied warranty of seaworthiness in a time policy. A consequence of this is that if the vessel is unseaworthy — as the "Bon Conge" was not — at the time the insurance attaches, the breach absolutely avoids the policy.
As to the distinction between the English and the American rule on the presence or absence of a warranty of seaworthiness in a time policy, see Saskatchewan Government Insurance Office v. Spot Pack, Inc., 242 F.2d 385 (5th Cir. 1957). Under the American Rule, a warranty of seaworthiness is implied as of the very moment of attachment of the insurance. Under the American Rule once the warranty is satisfied (as it clearly was here) the warranty thereafter becomes a modified "negative" one in which it is warranted that the owner, from bad faith or neglect will not knowingly permit the vessel to break ground in an unseaworthy condition.
If the warranty is complied with at attachment, then the policy is effective and subsequent breaches merely suspend coverage until the breach is cured and the consequences of the breach are obliterated. Henjes v. Aetna Ins. Co., supra.
INCHMAREE CLAUSE
The Inchmaree clause in (b) (2) under "Perils Insured" affords coverage of additional perils resulting from "negligence of master, mariners, engineers, repairers, or pilots." (emphasis supplied) Indeed this clause is aid and comfort not to the defendant-insurer, but to the plaintiff-owner. Its object and purpose is to expand coverage and protect the owner for the negligence of his servants. See Note 3, supra.
The only limitation on this coverage is the phrase "* * * provided such loss or damage has not resulted from want of due diligence by the owner of the Yacht or by the insured." This limitation does not impute to the owner on notions of respondeat superior acts of the persons enumerated in the coverage. Saskatchewan Government Insurance Office v. Spot Pack, Inc., supra. This record discloses that the owner was exceedingly diligent.
There is no proof in this record that the defect was discoverable by prudent inspection, or that a prudent inspection could not have revealed it. If the defect was one which in prudence ought to have been discovered, then it was Oulliber Boat Works who should have discovered the condition likely to give rise to a leak. The record is uncontradicted that Oulliber was responsible for the upkeep and maintenance of the yacht and the owner had given Oulliber blanket authority to do anything required to maintain the vessel seaworthy.
Oulliber is in the category of "repairers" under (b) (2) of the "Perils Insured" clause. As such, its failure to carry out its duty to the owner was negligence and, under the Inchmaree clause, this too was specially covered.
If the defect could have been discovered the resulting unseaworthiness was due to the negligence of Oulliber; if it was not discoverable by Oulliber, it was latent. Either way the insurer turns, the loss is within the expanded coverage.
Further, it is well established that where negligence, even on the part of the employees of the insured, causes a loss, that loss is fortuitous and within the coverage of all risks insurance. C. H. Leavell Company v. Fireman's Fund Insurance Company, 372 F.2d 784 (9th Cir. 1967). Only "wilful misconduct", measuring up to "knavery" or "design" will suffice as a defense to an "all risks" policy of marine insurance. New York, New Haven and Hartford Railroad Company v. Gray, 240 F.2d 460 (2d Cir. 1957), cert. denied 353 U.S. 966, 77 S.Ct. 1050, 1 L.Ed.2d 915 (1957), rehearing denied, 354 U.S. 943, 77 S.Ct. 1397, 1 L.Ed.2d 1541 (1957). This record shows no such conduct on the part of the plaintiff-owner.
BURDEN OF PROOF
Plaintiff's burden of proof under such a policy as here is a light one: to make a prima facie case for recovery he must show only that a loss has occurred. Upon plaintiff's making such a prima facie showing, the burden shifts to the defendant-insurer to prove that the loss arose from a cause which is excepted from the policy or for which it is not liable. Couch on Insurance 2d, Vol. 13, Section 48:139, p. 596; Ellzey v. Hardware Mut. Ins., Co. of Minnesota, La.App., 40 So.2d 24; Turner v. Ewing, La.App., 220 So.2d 518, affirmed 255 La. 659, 232 So.2d 486; Myevre v. Continental Casualty Company, La.App., 245 So.2d 785, writ denied 258 La. 764, 247 So.2d 863. Additionally, in this court, it is incumbent on the appellant to show "manifest error" in the factual determination of the trial court before a reversal will be granted. Smith v. Westchester Fire Insurance Company of New York, 227 La. 812, 80 So.2d 418; Pearson v. Taylor, 116 So.2d 833. The defendant-appellant has failed to do both.
DAMAGES
Plaintiff prayed for a judgment in the amount of $11,862.50 and itemized his claim as follows:
Total invoices filed with George S. Kausler thru April 24, 1970 ...................... $ 8,046.07
Estimate of Jules Schubert Marine Service to replace all copper clad gaskets in engine damaged by battery acid .......... 250.00
Automobile trips by Wallace C. Walker re supervision — 72 days at 10 mi/day — total 720 miles at 12¢ ................. 86.40
Repair and recondition galley butane stove and lines............................... 75.00
"Maxim Silencer 4" MUWl — invoice #130, Al Epstein, Inc., January 27, 1970 ................................... 57.75
Supervision by Wallace C. Walker — 72 days at 2 1/2 hours per day-total 180 hours at $10.00 per hour ...................... 1,800.00
Office overhead — $10,315.22 at 15%... 1,547.25 TOTAL .... $11,862.47
Therefore, plaintiff's claim should have been $11,862.47.
The trial judge properly reduced the sum of $8,047.07 invoiced to Kausler by $602.60 for personal effects excluded from coverage in line (d) of the policy "Exclusions." He further correctly reduced plaintiff's claim for supervision by $1,200.00 and his claim for office overhead by $1,247.25. The judgment of the trial court, after having rightfully reduced the corrected claim of the plaintiff, should have been $8,812.62 and not $8,609.90 as was awarded.
The "Perils Insured" provision of the policy in (b) (2) specifically provides for "* * * excluding the costs and expenses of replacing or repairing any defective part." Therefore the amount of $8,812.62 is further reduced by $57.75, the cost of the "maxim silencer".
For the foregoing reasons the judgment of the trial court is amended and affirmed. Accordingly, there is judgment in favor of the plaintiff, Wallace C. Walker, and against the defendant, Travelers Indemnity Company, in the full sum of $8,754.87, plus legal interest from date of judicial demand until paid and for all costs.
Amended and affirmed.
SCHOTT, J., dissents with written reasons.
GULOTTA, J., concurs with written reasons.