BARNES, Circuit Judge.

This is a consolidated appeal taken after trial in the United States District Court in which judgment was entered for appellee insurance companies holding them exonerated from liability on certain contracts of insurance. Appeal No. 17,460 was formerly No. 2348 in the district court and was originally filed in the Superior Court for the State of Washington from which it was removed to the district court only to be remanded back to the State court. Appeal No. 17,461 was formerly No. 2543 in the district court; it was originally filed in the Superior Court for the State of Washington from which it was removed to the district court and a motion to remand was denied. After removal of No. 17,461 to the district court, appellants stipulated the then State court case could be retransferred to the Federal court, and moved to consolidate No. 2348 with No. 2543. The motion was granted and the two cases consolidated for trial. Diversity of citizenship existing, and an amount in controversy exceeding $10,000, the district court had jurisdiction to hear the consolidated cases under the provisions of Sections 1332 and 1441(a) of Title 28, United States Code.

Judgment for appellees in both cases was entered March 23, 1961. Timely notice of appeal was filed. This court has jurisdiction to review the judgment entered below under the provisions of Sections 1291 and 1294(1) of Title 28, United States Code.

Both actions were brought by appellants to recover from appellee insurance underwriters on contracts for marine insurance for loss and damage resulting from the total constructive loss of appellants' diesel powered fishing vessel, the Pacific Queen, owned by Pacific Queen Fisheries, a partnership.

The Pacific Queen was built in 1943 for the Navy. The vessel had a wooden hull and structure with steel decks and deck-house; she was 988 gross tons, 672 net tons, 173 feet in length, 37 feet in width, 18.8 feet in depth, and propelled by 1600 HP twin-screw diesel engines. Built for Navy salvage operations, she had been outfitted with two 1500 gallon gasoline tanks which were equipped with "a very safe" aqua or hydraulic system which dispensed gasoline by injecting water through interior piping into the tanks (thus forcing the gasoline of lighter specific gravity to rise) thereby transferring the gasoline through permanent piping to pumps and discharge valves, located above deck.

In 1948 the Pacific Queen was bought as war surplus by an individual who resold her to a corporation then controlled by appellant Breskovich. The corporation then sold the vessel to appellants, or their predecessors in interest.

The Pacific Queen became a total constructive loss on September 17, 1957 because of a violent explosion. Immediately thereafter, in the regular course of its official duties, the Coast Guard made a full investigation. The transcript of the Coast Guard's hearing, its detailed findings and conclusions, recommendations and official action, were offered into evidence by appellants and admitted without objection. The district court found the Coast Guard's findings and conclusions to be true and incorporated them by reference and adopted them into its own findings of fact.

Beginning in 1950, appellants operated the Pacific Queen between Puget Sound and Bristol Bay, Alaska, as a refrigerated vessel to freeze and transport catches of salmon from Alaska to ports on Puget Sound. In 1951 regulations which prior thereto had prohibited power-driven fishing boats in Bristol Bay, as a fish conservation measure, were relaxed and power boats (e.g., gillnetters) up to thirty-two feet in length were permitted. Many of the gillnetters are powered by gasoline; others are powered by diesel fuel. Both types of fuel may be obtained from various sources in Alaska.

During the years beginning 1950, appellants insured the vessel with various insurance companies, including some but not all of the respective appellees which insured her in 1954.

On various occasions between 1950 and 1957, before each year's fishing season began, appellants, through a broker, requested that the vessel be surveyed by the Board of Marine Underwriters of San Francisco, or by United States Salvage Association. On other occasions during this period appellants requested through a broker, other well recognized and competent surveyors to survey the vessel. This was done in 1950 by Alexander Gow, Inc., and in 1953 by Captain Adrian Raynaud, but neither surveyor reported the existence of any gasoline or gasoline tank capacity aboard the Pacific Queen.

On or about May 3, 1955, Hansen Rowland, acting as broker for appellants, requested United States Salvage Association to make a condition survey of the Pacific Queen. One Edward Marquat, an experienced surveyor, since deceased, was assigned to the task. He made an exceptionally careful and meticulous survey. His condition report (six single-spaced pages) is dated May 13, 1955. With respect to gasoline, his report read in full text:

"Fuel and Water Capacities:

Fuel 49,000 gallons Water 14,000 " Gas 3,000 "

(Gasoline tanks under deck aft, proper filling lines and vents to atmosphere)."

The court found Pacific Queen Fisheries knew Marquat's report was the only information appellees had concerning gasoline "because, in 1956, appellant John Vilicich, one of the active partners [experienced in the marine insurance business] asked for and received a copy of the report."

The Pacific Queen did not engage in Alaskan operations in 1956. She remained in lay-up status. On about May 2, 1957, Hansen Rowland, again acting as appellants' broker, requested United States Salvage Association to make a condition survey. Appellants particularly requested a survey of two newly purchased gillnetters and, incidentally, of the Pacific Queen. J.E. Elkins, an experienced surveyor, made the survey. Elkins' only other survey of this vessel was made in 1949 — at which time no gasoline was being carried by the vessel. His report (Exs. 359, 360), dated May 2, 1957, like those of Gow's (in 1950) and Raynaud's (in 1953), made no reference to gasoline tank capacity, nor to any bulk gasoline carried aboard the vessel. Elkins reported the vessel to be a mothership for gas-powered gillnetters. (Finding of Fact VIII. J., R. 258-259.)

At the time of the explosion on September 17, 1957, the gasoline tank capacity of the Pacific Queen had been increased from 3,000 to 8,000 gallons. This increased gasoline tank capacity was accomplished by filling two tanks, theretofore used for diesel fuel, with 5,000 gallons of gasoline. Gasoline is a far more hazardous commodity than diesel oil to use or transport. Appellants inserted below-deck exposed gasoline-discharge valves into fittings that had been designed and used for insertion of permanently secured drainage plugs. These valve replacements were located in or near a passageway where ship's equipment, fishing gear and personnel frequently passed.

These alterations for discharging gasoline adapted by the Pacific Queen were apparently unique to her. Such a system or method of handling and discharging gasoline was not in common usage. It was not used on other vessels in which some of the Pacific Queen's owners had, and have, an interest. There was no positive evidence the same method had ever been used on other vessels.

The appellants accomplished this change in the vessel's gasoline tank capacity (i.e., the increase of gasoline tank capacity from 3,000 to 8,000 gallons by means of the above described alterations) at some date subsequent to the May 13, 1955 Marquat condition survey, and prior to the attachment of insurance on May 24, 1957.

On May 27, 1957, the Pacific Queen departed from Seattle and proceeded to Alaskan water to engage in fishing. She commenced her adventure with the increased gasoline tank capacity and the changed method of piping, valving and internal method of discharge of gasoline described above known to her owners and manager.

After the Pacific Queen returned from Alaska, she shifted to various Puget Sound docks, and with her increased gasoline tank capacity and changed method of piping, valving and internal method of discharge of gasoline as hereinabove described, and with the knowledge of her owners and manager, she then was sent from Seattle to Friday Harbor.

While the Pacific Queen was at Friday Harbor, she had on board approximately 2,000 gallons of gasoline. On September 9, 1957, while at Friday Harbor, 500 to 600 gallons of gasoline were spilled from one of the vessel's tanks in its hold into the interior of the vessel. While appellants minimized the seriousness of this spillage, the court below believed it was a serious incident. It created great hazards to the ship, life and property. Gasoline from the spillage soaked and impregnated large parts of the wooden hull and structure of the vessel. It was not a sudden spill. It began early in the evening preceding its discovery at 4:00 a.m. by the cook. It lasted at least six hours, probably longer. In the course of the spillage, liquid gasoline and gasoline fumes permeated the lower after portion of the vessel.

The spillage was reported to one of the appellant-owners and manager of the vessel (appellant Mardesich) while he was in Friday Harbor on September 9, 1957. He inspected the vessel but gave no specific orders as to the methods to be used in cleaning her. He did not order any chemical tests to be made to determine if she was gas-free; he did not order the plugging-up of the valves on the other gasoline tanks to prevent similar spills. Nor did he order the discharge of the remaining gasoline from the other tanks.

In an attempt to purge the vessel of gasoline, cold water, sprayed through a hose, was used to wash down the area. After removal of all visible traces of gasoline, the area was again washed down with cold water, and a bilge cleaning solvent was used in an attempt to remove the gasoline from the wooden hull. Portable blowers were used to remove gasoline fumes from the vessel. Then, on the evening of September 10, 1957, the vessel's ventilation blowers were placed into operation to free the vessel from gasoline fumes.

The district court — basing its findings on expert testimony — found the steps taken to purge the vessel of gasoline and gasoline fumes to be inadequate. After the Friday Harbor spill and with the knowledge of the vessel's owners and manager, a plug was put into the valve on one of the tanks but no precautions were taken to prevent similar spills from the remaining three tanks. The court found: "All of the plaintiffs' [appellants'] witnesses, including two of the part-owners, who were experienced in the handling of gasoline, agreed that this was a serious want of due diligence." All of appellees' witnesses agreed that it was extraordinarily hazardous to permit a vessel to be in such condition, or to send the vessel to sea in such a condition, and that it might take a period of weeks before the vessel was sufficiently gas-free to operate with safety.

On the evening of September 11, 1957, the Pacific Queen departed from Friday Harbor and proceeded to Seattle. On September 15, 1957, she left Seattle and proceeded to Tacoma where she tied up at "Old Town Dock" at approximately 4:35 P.M.

At approximately 4:00 A.M. on the morning of September 17, 1957, a violent explosion occurred on board the Pacific Queen. Portions of the vessel were hurled several hundred yards away, plate glass windows in the surrounding area were broken, and a distinct jar from the explosion was felt some two miles distant. Witnesses living a few hundred feet from the explosion, who were immediately awakened and could observe it, reported a ball of orange fire and a black smoke present at the time of the explosion — color characteristics consistent only with an explosion of gasoline vapor origin.

The explosion ripped open the vessel's hull planking on the port after side of the engineroom at the turn of the bilge and a large section of the vessel's main deck aft of the superstructure (together with brine tanks, hatches, manhole covers, a gillnet boat, etc.) was blown off, and into the water. A fire followed, and the Pacific Queen ultimately settled on the bottom with a ten degree list to the star-board. The source of the explosion's ignition is unknown. It could have been a spark from a cigarette, or a match, or an electric contact, or other accidental source. But, by an "overwhelming preponderance of the evidence," the district court found the constructive total loss of the Pacific Queen was the result of a gasoline explosion.

The district court, sitting without a jury, held appellees free from liability on contracts for insurance against loss on the Pacific Queen — in the total amount of $325,000 — which each of the appellees, in varying amounts, had underwritten. From a judgment so holding, appellants take this appeal.

Appellants' opening brief does not specify wherein the findings of fact and conclusions of law are alleged to be erroneous. After having this discrepancy pointed up by appellees in their answering brief, appellants set forth their forty-eight specifications of error in the appendix to their reply brief. Of these, Numbers 1, 3, 14 and 47 have been waived or abandoned.

The principal questions here presented by the forty-four errors specified are whether the district court was clearly erroneous in finding:

1. That appellants concealed from appellees circumstances material to the risk.

2. That the Pacific Queen was, with the privity of appellants, sent to sea in an unseaworthy condition.

3. That the loss and damage to the Pacific Queen resulted from a want of due diligence by the vessel's appellant-owners.

4. That appellants breached their implied warranty that the Pacific Queen's adventure was a lawful one and that, so far as appellants were able to control the matter, the adventure was to be carried out in a lawful manner.

Collateral questions presented are whether the district court was clearly erroneous in holding:

5. That a contractual time bar raised by one appellee was an effective bar to appellants' action.

6. That certain appellants were partners in the Pacific Queen Fisheries.

7. That appellants had not perfected their right to jury trial.

Several preliminary observations should be made. First, in accordance with the intent of the parties as set forth in the certificate of insurance covering the hull, as stipulated by both parties on brief, and as found and held by the district court, English Law and usage governs the substantive law of the instant case. Secondly, it is not incumbent upon appellees to persuade this court that the district court's findings of fact are correct; on the contrary, the appellants must persuade this court that the district court's findings of fact are, as specified by appellants, clearly erroneous. Third, this court must view the evidence in the light most favorable to the party who prevailed below; such a party must be given the benefit of all inferences that may reasonably be drawn from the evidence. The findings of the trial court sitting without a jury must be accepted unless they are clearly erroneous; they cannot be upset if they are supported by substantial evidence.

I DID APPELLANTS CONCEAL CIRCUMSTANCES MATERIAL TO THE RISK?

Was the district court clearly erroneous in finding — and holding accordingly — that the insurance was void ab initio because appellants failed to disclose material increases in the risk caused by the increased gasoline carrying capacity of the Pacific Queen and the extra-hazardous methods of carriage of that increased amount of gasoline? We hold it was not.

The district court made careful and voluminous findings.

The Marine Insurance Act, 1906, in part here pertinent, provides:

"17. A contract of marine insurance is a contract based upon the utmost good faith, and, if the utmost good faith be not observed by either party, the contract may be avoided by the other party.

* * * * * *

"18. — (1) * * * the assured must disclose to the insurer, before the contract is concluded, every material circumstance which is known to the assured, and the assured is deemed to know every circumstance which, in the ordinary course of business, ought to be known by him. If the assured fails to make such disclosure, the insurer may avoid the contract.

"(2) Every circumstance is material which would influence the judgment of a prudent insurer in fixing the premium, or determining whether he will take the risk."

Appellants contend that they were not under a duty to disclose the increased gasoline tank capacity of their vessel, or the below-deck alterations made to dispense gasoline because (a) appellees must be presumed to have had notice of the changes, even though they might not have had actual notice, and (b) appellees waived disclosure of the changes.

Section 18(3) of the Marine Insurance Act, 1906, provides the following exceptions to the duty to disclose:

"In the absence of inquiry the following circumstances need not be disclosed, namely:

* * * * * *

"(b) Any circumstance which is known or presumed to be known to the insurer. The insurer is presumed to known matters of common notoriety or knowledge, and matters which an insurer in the ordinary course of his business, as such, ought to know;

"(c) Any circumstances as to which information is waived by the insurer. * * *"

These exceptions to the duty of disclosure are discussed in 2 Arnould on Marine Insurance, 15th Ed. (1961), §§ 621-631. After quoting the stilted language of Lord Mansfield in Carter v. Boehm, (1766) 3 Burr 1905, it is there said, on the question of what is presumed to be known to the insurer, that:

"[A]n insurer is presumed to know that it is impossible to make a floating dry-dock as seaworthy as an ordinary ocean-going craft, and is put on inquiry, if he admits seaworthiness as to the means adopted to strengthen it.

"A knowledge of the political state of the world, of the allegiance of particular countries, of their standing mercantile regulations, of the risk and embarrassment affecting the course of trade contemplated by the insurance, must all necessarily be imputed to the Underwriter, and therefore, need not be disclosed by the assured. * * * (Arnould, supra, § 622.)

And, on the question of what ought to be known to an insurer, Arnould states:

"On the principle that the assured need not disclose what the Underwriter ought to know, it has been decided in several cases that facts comprised in the general usages of the trade need not be communicated to the Underwriter; * * * But to dispense with communication of anything done according to usage, such usage must be generally and universally known to all engaged in the trade." (Arnould, supra, § 623.) (Emphasis added.) Citing Tennant v. Henderson, (1813) 1 Dow 324.

The Marine Insurance Act, 1906, Section 18 provides with respect to disclosure:

"* * * (4) Whether any particular circumstance, which is not disclosed, be material or not is, in each case, a question of fact."

The district court here found as a fact (a fact appellants seemingly do not controvert) that the altered method of handling gasoline was not a usage "generally and universally known to all engaged in the trade," but, on the contrary, found that it was unique — it was "not in common usage, but was exclusive to the Pacific Queen." Elkins, when making his 1957 survey, had only known the Pacific Queen as a vessel not carrying gasoline. Elkins reported her to be a mothership for gas-operated gillnetters. But, as the district court found, this gave no notice that the Pacific Queen was carrying bulk gasoline, because gasoline and other types of fuel were, and are, available from various sources in Alaska other than the mothership. Appellants' reliance on the exception to require disclosure based upon usage is misplaced.

As to the exception to the duty of disclosure based on waiver, Arnould states:

"It was * * * held by the Court of Appeals [in Mann, MacNeal Steeves v. Capital Counties Ins. Co.] that information that the cargo was of a hazardous character had been waived. Bankes L.J. said that an Underwriter waives any information in relation to what may be fairly described as a parcel or ordinary cargo of lawful merchandise, and also, quoting Lord Esher M.R. in Asfar v. Blundell that the rule is satisfied if the assured discloses sufficient to call the attention of the Underwriters so that they can see if they require further information, they ought to ask for it. * * *" (Arnould, supra, § 631.) (Emphasis added.)

And further:

"Atkins, L.J. with whose judgment on this point Younger, L.J. agreed, said that included in the risk an Underwriter takes is the risk that there is an already concluded engagement for hazardous cargo, just as there is the countervailing possibility he runs no risk of a hazardous cargo at all, by reason of an absolutely safe cargo having been agreed." (Id.)

Appellants place great reliance upon Mann, MacNeal Steeves v. Capital Counties Ins. Co. (1921) 2 KB 300 — the case cited and discussed by Arnould in § 631, supra. In Mann no absolute rule as to disclosure was established. The disclosure of the nature of the cargo (even when it is iron drums of gasoline, as it was there) is waived where there is proof the cargo "is an ordinary and common form of merchandise" (p. 306) which can be carried as safely as the common run of cargo. "The question whether disclosure must be made or not is one of degree, depending upon the circumstances of each particular case." (p. 307.) But appellants do not explain the above italicized language in the quotation from Arnould, supra, § 631. Further the failure to disclose here relates to a part of the ship — the altered method of handling gasoline; not to the cargo itself.

Appellants next contend that appellees waived disclosure of the increased gasoline tank capacity and the altered methods of gasoline discharge because surveys had been made. But the district court found that appellants did not disclose the altered method of handling gasoline to the surveyors; that the surveyors did not know of these alterations; that the altered methods were exclusive to the Pacific Queen; that they were not common usage; and that to make such alterations was a simple job that would take two men thirty minutes to perform. Further, the district court found that the alterations were not observable by reasonable inspection.

Appellants were under a duty to advise the surveyors of alterations requiring especial examination. This court has previously so held. In States Steamship Company v. United States, 1958, 9 Cir., 259 F.2d 458 at 469, we said:

"Marine Surveyor Wilson who then inspected the ship for the American Bureau of Shipping testified that he received no special information concerning the vessel prior to his survey and he knew nothing outstanding against it. The record warranted the court's evident conclusion that an inspection of a vessel known to have a history of crack sensitiveness and particularly a history of a Class 1 fracture, should be much more careful and elaborate than this vessel ever had. The company itself was chargeable with knowledge of the pending inspection and yet it failed through Vallet or Brenneke [its port engineer, and its manager, respectively] or any other person to inform the inspectors of these special conditions attending the ship. In the words used in The Silver Palm [9 Cir., 94 F.2d 776], all these circumstances 'made the more imperative the obligation of the owner and operator to advise' of the special circumstances calling for a special inspection and a more thorough one than had been given."

That appellants were here under a duty to disclose is also shown in the holding of the British case of The Assunzione, (1956) 2 Lloyds List Law Rep. 468, where, at 486, Mr. Justice Willmer (in quoting the expert Rolland and in discussing the value of a survey made by the owners themselves, and not one made by a classification surveyor) said:

"A prudent shipowner has a superintendent whose duty it is in the first instance to go around the vessel finding out the defects, and pointing them out to the Classification Surveyor. A superintendent does not rely on the Classification Surveyor to point out the defects — at least it is not good practice to do so. The superintendent and the Classification Surveyor should inspect together and deliberate on what should be done."

Appellants contend, in their reply brief, that the changes made on the Pacific Queen must have, or should have, been apparent to Elkins. We cannot agree. As mentioned above, because the vessel was engaged in Bristol Bay operations did not mean it had to be carrying gasoline. And appellants' gesture of requesting a survey on an unlighted dead vessel, which survey was related to a request to look at two new gillnetters, and only incidentally, to "look over" the vessel; plus (a) appellants' failure to point out hazards or (b) advise Elkins of intended changes, and (c) their failure to have one of the owners who was chief engineer identify himself, and (d) the failure to inform their brokers of present or intended changes, do not meet the good faith and fair disclosure requirements of the Marine Insurance Act. Nor can it lead us to believe that the district court was clearly erroneous in finding that the changes were not necessarily apparent to Elkins.

Appellants further contend, in their reply brief, that the quantity of gasoline carried was immaterial from a risk standpoint because only two gallons of gasoline (according to appellees' expert) was all that was needed to fuel an explosion of the magnitude of that which destroyed the Pacific Queen. The quantity carried may or may not be material; the manner in which the gasoline was carried and handled is material. If only two gallons of gasoline were needed to do that which was done, then an extra-hazardous system such as was here adopted by appellants makes the change all the more material; and indicates the correctness and reasonableness of the district court's finding that appellees would not have insured the vessel if appellants or their brokers (who were also kept in the dark) had disclosed all or any of the several material increases in the risk.

Appellants also contend many of the cases cited by appellees on this issue are inapposite. But they still rely on the Mann case, supra, and make no reply to Arnould's commentaries, nor to the language of the Marine Insurance Act itself.

Viewing the evidence as this court must, we agree with the district court's holding that the insurance never attached and was void ab initio for failure to disclose material increases in the risk. Such a holding was not clearly erroneous; nor was it without substantial evidence in the record to support it.

II

WAS THE PACIFIC QUEEN, WITH THE PRIVITY OF APPELLANTS, SENT TO SEA IN AN UNSEAWORTHY CONDITION?

The next question is whether the district court's finding that the Pacific Queen, with the privity of appellant-owners, was sent to sea in an unseaworthy condition is clear error. Again, we cannot hold the district court's finding was clearly erroneous.

Appellants do not strenuously contend that the Pacific Queen was not unseaworthy. Rather, the crux of their argument under this heading, premised upon Section 39(5) of the Marine Insurance Act, 1906, is that unseaworthiness is immaterial. The Act referred to reads:

"In a time policy there is no implied warranty that the ship will be seaworthy at any stage of the adventure. * * *"

And, as appellant brought this action under a time policy, they contend that the above wording removes any implied warranty of seaworthiness unless appellees can bring themselves within the following exception found in Section 39(5) which reads:

"* * * but, where, with the privity of the assured, the ship is sent to sea in an unseaworthy state, the insurer is not liable for any loss attributed to unseaworthiness."

Thus appellants' argument here is that the Pacific Queen, even though unseaworthy, was not sent to sea with their privity. Appellants challenge both the terms "sent to sea" and "privity." It seems, however, that even here appellants' attack is directed toward the district court's interpretation and applicability of such terms after the Friday Harbor spillage. This is shown by appellants' extensive discussion on whether or not moving from port to port on Puget Sound is "at sea."

But the district court found "her continuous unseaworthiness was a proximate cause of her loss." She "was unseaworthy each time she was sent to sea on and after May 24, 1957." We agree with these findings, and need not decide the non-controlling issue of whether the Pacific Queen was "at sea" after the Friday Harbor spillage.

As Arnould, supra, states at § 706:

"It is not necessary, [under § 39(5) of the Marine Insurance Act, 1906] in order to exonerate the insurer from liability, that the unseaworthiness should be the sole cause of the loss; it is sufficient that the unseaworthiness was a proximate cause of the loss."

As to "privity," we again find the district court correct in finding it existed. Appellants place their principal reliance upon Cia. Naviera Vascongada v. British Foreign Marine Insurance Co., Ltd., (1936), 54 Ll.L.Rep. 35. Because the district court did not cite this case in its determination of the privity question, they claim a separate error. (Specification of Error 24.)

Appellants, on the authority of the Vascongada case, contend that there was no privity unless appellant Mardesich deliberately omitted or refrained from an examination of the vessel which might have revealed that gasoline had soaked and impregnated large portions of her wooden area, and that the omission of appellant Mardesich to take more precaution than was in fact taken cannot make appellants privity to any unseaworthiness which resulted from the gasoline spillage on September 9, 1957. But this contention again relates only to events which occurred after the Friday Harbor gasoline spillage. And the district court found that the vessel's unseaworthiness was continuous from and after May 24, 1957, the day insurance attached.

The correct and most concise statement of what is meant by "privity" is set forth in M. Thomas Son Shipping Co. v. The London Provincial Mar. Ins. Co., (1914) 30 T.L.R. 595 (C.A.). There, at page 596, the court said:

"[W]ords in s. 39, sub-s 5, of the Marine Insurance Act, 1906, 'Where with the privity of the assured a ship is sent to sea in an unseaworthy state,' meant where the owner was privy to the state of things which in fact rendered the ship unseaworthy."

A reading of the facts as found by the district court clearly indicates that, within this definition, each time the Pacific Queen was sent to sea from and after May 24, 1957, until her loss, she was in an unseaworthy state, to the knowledge and with the privity of the assured owner. This because of the knowledge of its condition resting in one or more of the partners, and the manager (also a partner). The facts substantiate the district court's finding that said unseaworthiness was a proximate cause of the vessel's loss.

III

DID THE LOSS AND DAMAGE TO THE PACIFIC QUEEN RESULT FROM WANT OF DUE DILIGENCE BY APPELLANTS?

Appellants contend the district court erred in holding that they were precluded from recovering the loss of the Pacific Queen under the broader coverage of the Inchmaree clause contained in the contract of insurance here in issue.

Appellants represent that the Inchmaree clause was introduced to extend or broaden coverage and liability of underwriters; that the Inchmaree clause broadens coverage to include a variety of risks not embraced in the general perils of the sea clause. Appellees do not quarrel with this opinion.

The Inchmaree clause reads:

"This insurance also specially to cover (subject to the free of average warranty) loss of or damage to hull or machinery directly caused by the following: —

"Accidents in loading, discharging or handling cargo, or in bunkering or in taking in fuel.

"Explosions on shipboard or elsewhere.

"Bursting of boilers, breakage of shafts or any latent defect in the machinery or hull (excluding, however, the cost and expense of repairing or renewing the defective part).

"Negligence of Master, Mariners, Engineers or Pilots. [P]rovided such loss or damage has not resulted from want of due diligence by the Owners of the Vessel, or any of them, or by the Managers.

"Masters, Mates, Engineers, Pilot or Crew not to be considered as part owners within the meaning of this clause should they hold shares in the vessel."

Appellants assume, arguendo, on this issue that they were negligent. But, they contend, the Inchmaree clause includes this risk and, therefore, appellees should be liable for the loss and damage to the Pacific Queen. The cases here cited by appellants largely relate to other circumstances and law; e.g., most deal with section 39(5) unseaworthiness questions.

On this issue the district court found the loss was caused by a gasoline explosion.

Appellants contend that the district court's finding that the loss of the Pacific Queen was due to a gasoline explosion was clearly erroneous. With this contention we cannot agree. A logical inference from the facts before the trial court clearly allows such a conclusion.

The district court's findings of want of due diligence on the part of appellant-owners and of a gasoline explosion are neither clearly erroneous, nor without substantial evidence to support them, seems clear. As stated by Arnould, supra, at page 764 (cited by appellants in their reply brief):

"It is clear that a loss may be proximately caused by more than one peril, that is by a combination of causes, and in this event the loss can be properly attributed to any one of such causes."

We believe, therefore, it was proper for the district court to attribute the Pacific Queen's loss to a gasoline explosion, even if another peril or combination of perils could have been a concurrent cause.

IV

DID APPELLANTS BREACH THE IMPLIED WARRANTY THAT THE ADVENTURE WOULD BE LAWFUL AND, TO THE EXTENT THEY COULD CONTROL THE MATTER, THAT THE ADVENTURE WAS TO BE CARRIED OUT IN A LAWFUL MANNER?

The district court found appellants guilty of such a breach.

The district court concluded (a) that the Tanker Act was applicable, (b) that the Pacific Queen's gasoline was supplied and used by others, and (c) that the gasoline transported by the Pacific Queen was not "fuel or stores" but was "cargo." The district court further concluded that such violation of the Tanker Act constituted negligence or want of due care and diligence on the part of the vessel's owners (independent of other findings of negligence and want of due diligence) but that this violation was not of such a character as to render the entire venture or voyage an illegal one. The court concluded that the hauling of the gasoline in bulk for the use described above was not the primary purpose of the voyage but merely an incident thereof.

We find the district court's findings and conclusions are detailed and well reasoned, but even were we to assume they were erroneous on this issue alone and were we to hold that appellants had not violated the Tanker Act because its application as to them was vague and uncertain, this would not require a reversal of the case. With this in mind, we state the following:

We feel there exists a question, under the circumstances here presented, whether or not the bulk gasoline carried by the Pacific Queen could come within the term "fuel or stores." More importantly, other fishing vessels, performing a similar role as that played by the Pacific Queen, are (or very shortly will be) engaged in fishing adventures. Some carry bulk gasoline for the same purposes as those of the Pacific Queen. Many are insured, either by appellees or other underwriters. If a loss occurred, this case would be an important and perhaps controlling precedent. The Commandant of the Coast Guard said:

"3. Since full compliance with either the regulations under the Tanker Act or the Dangerous Cargo Act, neither of which regulations were designed to cover this type of vessel and operation, which is presumably fishing, is impossible, or impracticable of accomplishment and further, since it is possible that the legal responsibilities of the owners of this type of vessel are not sufficiently clear, the file in this case will be referred to the Merchant Marine Council for study and action towards issuing such clarifying regulations as may be indicated."

Therefore, we prefer not to make an unnecessary decision on a non-controlling issue until the Merchant Marine Council (an expert body which can hold hearings and consider all ramifications of the question) has determined by regulation whether vessels of the Pacific Queen's type and operation should or should not be within the purview of the Tanker and Dangerous Cargo Acts.

V COLLATERAL QUESTIONS.

A. Did the contractual limitation of action provision in the Buffalo Insurance Company policy bar appellants' action against Buffalo Insurance Company? We hold it did.

Conclusion of Law XI reads:

"The Liability of defendant, Buffalo Insurance Company, is in any event barred by the time of suit clause.

"The policy of defendant, Buffalo Insurance Company (Pl.Ex. 1) provides in part:

"'No suit or action on this Policy for the recovery of any claim shall be sustainable in any Court * * * unless commenced within twelve months next after the calendar date of the happening of the physical loss or damage out of which the said claim arose * * *.' [Emphasis added by the trial judge.]

"Since suit was not brought within one year, this claim is procedurally barred. RCW 48.12.200(1)(3) Heffner [Hefner] v. Great American Ins. Co., 126 Wn. 390; 218 P. 206 (1923). Hassett v. Penn. Fire Ins. Co., 150 Wn. 502, 273 P. 145 [745] (1929)."

In reply to the authorities relied upon by the court, and the brief, and in an attempt to show error in the district court, appellants, at page 15 of their reply brief state:

"Insurers have cited no English authority in the point and, therefore, Phoenix Ins. Co. of Hartford v. De Monchy, (1929) 45 T.L.R. 543, 35 Com.Cas. 67, quoted at page 51 of [appellants'] main brief, must be deemed conclusive and the Buffalo time bar provision must be disregarded."

Appellants rely heavily upon the Phoenix case involving turpentine that evaporated in transit. In that case, the policies contained the time clause limitation, but there was none in the certificate. It was held the certificate was the actual insurance, and the time clauses not contained in it could not be read into it (p. 544). The judgment was affirmed by the Lords. At page 544 it is stated:

"It follows, I think, that all clauses of the policy which are essential to the contract of marine insurance must be read into the certificate, but beyond that there is no necessity to go. The condition in question is a collateral stipulation [a one year contractual time bar clause] imposing a condition precedent. It has nothing particular to do with insurance, but might be applied to any contract. Common sense and fairness revolt against the idea of this being enforced against the holder or indorsee of the certificate * * [who could never have seen the policy]."

The trial court in the Phoenix case had not held, as the district court did here, that the limitation clause was part of the actual contract between the parties. The appellate court there was affirming the court of appeals (44 Times L.R. 364). Had the lower court held there as the trial court did here, what would the appellant there have argued?

Having held the clause to be valid and an essential part of the contract entered into (for which there was ample support in law), we do not believe the district court's conclusion on this point was erroneous.

B. Was it proper for the district court to deny appellants a trial by jury? This is a matter within the discretion of the district court, and we conclude no abuse of said discretion is shown. However, because of the importance of this issue, we feel it must be discussed at some length. Our task is further enlarged by a complicated and confusing state of the record, and the manner in which this issue was presented to the trial court. We recognize that since "a right to trial by jury is a constitutional one * * * [the court's] discretion is very narrowly limited," and "must, wherever possible be exercised to preserve jury trial" — yet the Rules of Civil Procedure mean something, and a limited judicial discretion must of necessity still exist.

The district court's "Memorandum Decision Re Applicable Law Jury Demand," at page 224 of the record, reads as follows:

"It is indisputable on the record that plaintiffs' demand for jury trial was untimely by a substantial margin and that this constitutes jury waiver under F.R.Civ.P. 38(d). Although allowed ample time and opportunity therefor plaintiffs have not made a showing which amounts to excusable neglect, inadvertence or mistake or other basis on which the court in its discretion should order jury trial under F.R.Civ.P. 39(b). Plaintiffs' motion for jury trial is denied; exception allowed."

Finding of Fact No. III supports the above decision.

It is undisputed appellants never perfected a jury demand in the district court under the Federal Rules of Civil Procedure. There is dispute as to whether a jury demand was perfected in the State court. The right to jury trial in the State court is governed by RCW 4.44.100. This statute expressly requires that a statement electing jury trial be both served and filed and a jury fee paid. Unless such statement "is filed * * * the parties shall be deemed to have waived trial by jury, and consented to a trial by the court." (Emphasis added.)

The jury demand was never filed. Federal Rules of Civil Procedure, Rule 38(d) requires that a jury demand be filed, and upon failure to do so, applies the penalty of a waiver of jury trial. Appellants now take the position they had established their right to a jury trial in the State court action. They state in their reply brief (p. 15):

"Insurers caused to be inserted in the printed record certain material not in the record, and not in existence at the time of judgment, without leave of the court or notice to their adversaries."

This reference is to pages 51 to 53, inclusive, of the record, which contain an affidavit of appellees' counsel to which is attached a photostat of the Appearance Docket of some case pending in Pierce County, Washington, entitled "Mike Barovic (sic) vs. L. Symes, et al." This photostat is described in the affidavit to which it was attached as "a certified copy of the Docket in case # 137440 — entitled Pacific Queen Fisheries, a partnership, et al., v. L. Symes." We assume that this is an accurate photostat of the Appearance Docket of the Pierce County Superior Court in one of the cases then before it and now before us (now No. 17460) on appeal.

When appellants urged the jury question in their opening brief, (pp. 52-54) they took the position, unlike the one taken before the trial judge, that serving a demand for jury trial, and paying the required fee "completed the formalities required of a plaintiff for a right to trial by jury under the Rules of Procedure of the Superior Court for the State of Washington."

Appellees urged first that failure to file the demand for a jury trial waived or forfeited any right to it; and secondly, that the appellants in the federal courts (a) had neither filed a timely demand for a jury trial, and (b) had never urged that they had "completed all formalities" required by the State court, and hence had not acquired any "right" to a jury trial. The issue not having been raised below could not be raised on this appeal. In other words, appellants asked for a jury trial (under Rule 39(b) — discretion of trial judge), but never took the position, they were entitled to it as a matter of right. They did not deny a technical waiver had occurred, merely that there had been "no conscious waiver." (Supp.Tr. of September 26, 1960, p. 45.)

To substantiate appellees' position, they filed in this court on March 29, 1962, a motion to augment the record, in the following particulars:

1. The Notice of Argument dated September 6, 1960.

2. The Notice of setting cause for trial.

3. Portions of defendant-appellees' Reply Brief, opposing jury trial, filed September 19, 1960.

4. Plaintiff-appellants' Memorandum in support of jury trial.

5. The Transcript of proceedings before the trial judge, had on September 26, 1960.

Appellants here had no objection to such augmentation — provided they were permitted to augment the record by an affidavit, made by the judge of the Washington State court to which was attached his rough calendar for November 21, 1960; and a reporter's transcript of the proceedings had before him on September 12, 1960. On that date the State court agreed to set the case for trial late in November. On September 12, 1960, Mr. Copeland, counsel for appellants, there questioned the judge: "I would assume about a four-day jury trial?" and Mr. Stephan, counsel for present appellees, stated: "I think it would be more like ten, if we have a jury. We have no jury in the federal court; the federal court is going to dispose of all of this matter."

There being no objection to the augmenting of the record, by either side, this court granted each side leave to augment.

Between the September 12, 1960 appearance and the November 21, 1960 "future setting" for a trial by jury in the State court, the federal court held a hearing on the matter. This was on September 26, 1960. On that date, Mr. Dow, appearing as counsel for appellants, moved the federal court "that we remove our State court case to this Court and consolidate the two for purposes of trial." This was agreed to by counsel for defendant appellees, and approved by the court. The litigants then presented authorities and argument on that same date with respect to appellees' request for a jury trial. This was a 39(b) motion addressed to the sound discretion of the court. In their memorandum of law in support of such motion, Pacific Queen significantly conceded:

"* * * plaintiffs may not have a jury trial as of right. However, this Court in its discretion may upon proper application grant an order placing the matter upon the Civil Jury Calendar. The authority for such an order lies in Rule 39(b) of the Federal Rules of Civil Procedure * * *. Plaintiffs have moved the court for such an order and submit this brief in support of their application." (Emphasis by appellants.) (Augmented Record, Item 4, pp. 1-2.)

As a result, the district court had no notice of the now claimed right to jury in the State court. At no time did appellants file a jury demand as required by Federal Rules of Civil Procedure 5(d) and 38(d). Appellants now raise an issue never raised in the trial court. Furthermore, it will be recalled that one case on this appeal (No. 17,461) had originally been filed in the State court and was removed to the district court which denied remand; the other case on this appeal (No. 17,460), originally filed in the State court, and afterwards removed to the Federal court, remanded back to the State court was then by motion and stipulation (see note 24, infra) returned to the Federal court and consolidated with No. 17,461. No timely jury demand was made in the "No. 17,461" case, then pending in the Federal court; appellants do not contend otherwise. With this in mind, the stipulation bears out the fact that the district court neither committed error nor abused its discretion. Appellants entered into the significant stipulation, which appears in the margin, with respect to the cases.

Under all the circumstances here appearing, we believe the district court properly consolidated the cases as non-jury cases. We hold there was no abuse of discretion.

C. Was the district court correct in holding appellants Hull, Peck and Royer to be partners in Pacific Queen Fisheries, and necessary parties whose admissions would be binding on appellant Pacific Queen? We hold it was. We think this is adequately demonstrated by a reading of Conclusion of Law X (R. 285-286).

However, appellants do not deem the point worthy of extensive discussion because "we know of no damaging 'admissions' made by any of these three men as referred to in the lower court's Finding of Fact X * * *." We do not consider that this point warrants further discussion. Thus, even if error, the error is harmless.

Finding no error, we affirm the judgment below for the reasons stated above.

"IX.

"X.

* * * * *

"XII.

"XIII.

"XIV.

'2-2000 gal. gasoline tanks aft of compressor room to be pumped dry of gasoline, lines disconnect[ed] tanks filled with water plugged.' (Emphasis supplied [by the court].)

"XV.