* Honorable A. Sherman Christensen, United States District Court for the District of Utah, sitting by designation.

1 We follow the district court’s practice of stating premiums based on the period of January 1, 1970 to September 21, 1970, regardless of the actual period of coverage in order to facilitate comparison of the relative size of the various premiums. See 368 F. Supp. at 1103 n.2.

2 The following modern example of a marine F.C.&S. clause is given by Gilmore & Black:

“Notwithstanding anything herein contained to the contrary, this insurance is warranted free from capture, seizure, arrest, restraint, detainment, confiscation, preemption, requisition or nationalization, and the consequences thereof or any attempt thereat, whether in time of peace or war and whether lawful or otherwise; also warranted free, whether in time of peace or war, from all loss or damage caused by any weapon of war employing atomic fission or radioactive force; also warranted free from all consequences of hostilities or warlike operations (whether there be a declaration of war or not) but this warranty shall not exclude collision, explosion or contact with any fixed or floating object (other than a mine or torpedo), stranding, heavy weather or fire unless caused directly (and independently of the nature of the voyage or service which the vessel concerned or, in the case of collision, any other vessel involved therein, is performing), by a hostile act by or against a belligerent power; and for the purpose of this warranty ‘power’ includes any authority maintaining naval, military or air forcee in association with a power.

“Further warranted free from the consequences of civil war, revolution, rebellion, insurrection, or civil strife arising therefrom, or piracy.”

G. Gilmore & C. Black, The Law of Admiralty § 2-9 at 64-65 (1967).

3 The facts of the hijacking were established by stipulation essentially as stated here.

4 The quoted statement is the text of a handwritten note which Diop and Gueye attempted to read to the passengers on Flight 093. It was introduced in the district court as Aetna Exhibit 1.

5 A BOAC VC-10 was hijacked on September 9 and was added to the collection of aircraft at Dawson’s Field. 368 F. Supp. at 1111.

6 13 G. Couch, Cyclopedia of Insurance Law $ 48:139 (2d ed. 1965); IA W. Barron & A. Holtzoff, Federal Practice and Procedure $ 279, at 163 (Wright ed. 1960). The rule has special applicability to all risk insurance because if not for the affirmative defense of exclusion, the cause of the loss need not be proved. Cf. Chase Sand Corp. v. Central Insurance Co., 152 F.2d 963 (2d Cir. 1945) (per curiam) ; Bouza v. Corvick, 441 F.2d 1013, 1020 (D.C. Cir. 1970).

7 Tokyo Convention on Offenses and Certain Other Acts Committed on Board Aircraft, [1969-3] U.S.T. 2941, T.I.A.8. No. 6768 (effective Dec. 4, 1969) ; Hague Convention for the Suppression of Unlawful Seizure of Aircraft, [1971-2] TJ.S.T. 1643, T.I.A.S. 7570 (effective Jan. 26, 1973).

8 TW A’s all risk insurers were not subject to liability because the loss was less than a deductible amount in the TWA all risk policies.

9 “Hijacking” and “acts for political or terrorist purposes” are taken respectively from the provisions of AV-48 and AV-48A, discussed infra. “Irregular warfare” was employed in the government insurance policy at suit as a coverage clause. “Intentional damage” was used by Pan American’s all risk insurers for the four years prior to March, 1969. “Forceful diversion” appears in a parenthetical in clause 1 of the all risk exclusions, a parenthetical designed to deal with hijacking to Cuba. “Theft” was used by the insurer in Sunny South Aircraft Service, Inc. v. American Fire & Casualty Co., 140 So.2d 78 (D. Ct. App. 1962), aff’d, 151 So.2d 276 (Fla. 1963).

10 The district court gave appropriate weight to other extrinsic evidence as to the relative scope of all risk and war risk coverage. It found that for a relatively small premium, $190,511, the war risk insurers assumed the risk of war-related losses relying on the benefit of such familiar canons of construction as contra proferentem. It is clear that the size of the premiums is relevant to the construction of the policy. 1 G.J. Couch, Cyclopedia of Insurance Law $15:51 (2d ed. 1959); Beem v. General Accident Fire & Life Assurance Corp., 231 Mo. App. 685, 105 S.W.2d 956 (1937) ; Prather v. American Motorists Insurance Co., 2 N.J. 496, 67 A.2d 135 (1949); cf. Muller v. Globe & Rutgers Fire Insurance Co., 246 F. 759, 761 (2d Cir. 1917).

* The district court gave proper weight to the fact that the all risk insurers adopted new clauses to deal with the present type of loss within six months after September C. This fact is evidence of the ambiguity of the exclusions employed prior to September 6. 368 F. Supp. at 1120; see Bartol Products Corp. v. Prudential Insurance Co., 290 N.Y. 44, 48, 47 N.E.2d 687, 690 (1943) ; Orren v. Phoenix Insuranee Co., 288 Minn. 225, 179 N.W.2d 166 (1970).

11 Since 1720, when these terms were first used by the London Assurance Company, see Langdale v. Mason, 1 Bennett’s Fire Ins. Cas. 16, 17 (K.B. 1780), the conjunction in “military or usurped power” has been construed as if it were copulative, rather than disjunctive. Thus it is not sufficient that a loss be caused either by a military power or usurped power; it must be caused by a military and usurped power. Cf. Instarance Co. v. Boon, 95 U.S. (5 Otto) 117, 127 (1877). It is also clear that “usurped power” refers to the power exercised by a usurping force. Cf. Pape v. Home Insurance Co., 48 F. Supp. 754, 757 (S.D.N:Y.), aff’d, 139 F.2d 231 (2d Cir. 1943). The clause 1 exclusion, in plain modern English, secures the all risk insurers from losses caused by the military activities of a usurping power.

12 Of course the international law definition of war does not necessarily govern the insurance meaning of the term, see Kawasaki Kisen Kabu-shiki Kaisha v. Bentham S.S. Co., [1939] 2 K.B. 544, 556-59; New York Life Insurance Co. v. Durham, 166 F.2d 874, 876 (10th Cir. 1948), but it provides a starting place for our inquiry.

13 The all risk insurers urge that life insurance policies are subject to different rules of construction than property policies, and that accordingly, Vanderbilt does not control the present case. We find this argument, which is based on the premise that contra proferentem is applied in life cases but not property cases, completely unconvincing.

14 Section 1912 of the Civil Code reads as follows:

“Earthquake, war, insurrection, riots. Unless otherwise agreed, the insurer is not liable for damage caused by earthquake, war, insurrection or riots.”

Section 1912 Italian Civil Code of 1942 (Beltramo, et al., eds. 1969).

15 This statement is not inconsistent with the district court’s finding on war. The fact that the PFLP was fighting the United States does not mean that there was a “war” between the United States and this tiny non-governmental entity.

16 The all risk insurers argue that considering changes in New York penal law violates the principle of Van Vechtcn v. American Eagle Fire Insurance Co., 239 N.T. 303, 146 N.E. 432 (1925) (per Cardozo, C.J.). In Van Vechten, the court held that the fact that the legislature had affixed a novel definition to the word larceny” did not affect the intended scope of the word “theft” as it was used in an insurance policy; the latter term was to be interpreted “as common thought and common speech would now… describe it.” This holding has no bearing on the present case, because the penal law as to riot was changed to reflect, rather than depart from the current understanding of that term.