I dissent.
The Court of Appeal properly reversed the trial court in a well-reasoned analysis by Justice Thompson, concurred in by Presiding Justice Wood and Justice Gustafson. Omitting the factual recitation, I adopt the relevant portion of the Court of Appeal decision ((Cal.App.) 82 Cal.Rptr. 855, 858-859) as my opinion in dissent:
The sole issue on this appeal is the applicability of the exclusionary provision of the endorsement to the insurance policy to the type of loss here involved. Parol evidence was neither offered nor received to aid in interpretation of the policy. We therefore are not bound by the construction given the policy by the trial court but must make our own determination. In making that determination, we are bound by the rule requiring that any uncertainty in the policy be resolved against the insurer and in favor of coverage. (Continental Cas. Co. v. Phoenix Constr. Co., 46 Cal. 2d 423 [296 P.2d 801, 57 A.L.R.2d 914]; Gray v. Zurich Insurance Co., 65 Cal.2d 263 [54 Cal.Rptr. 104, 419 P.2d 168].)
Construction of the policy in the context of appellant’s claim requires *317our consideration of three classes of loss excluded by the endorsement from coverage by the policy: (1) loss from confiscation by government authority; (2) loss by reason of risk of contraband; and (3) loss from illegal transportation. We conclude that the facts here present disclose a loss which falls in none of those categories.
In the context that the term is used in the policy, no “confiscation” occurred here. Confiscation by government authority does not occur until there has been final action appropriating the property confiscated to the authority taking the action. The concept must be distinguished from that of governmental “seizure” which can be a step preliminary to confiscation pending final action but which is not the same thing as confiscation itself. (11 Couch on Insurance 2d, § 42:468.) The record in the case at bench discloses that the Texas authorities seized but did not confiscate the cargo of liquor. The Texas Court of Appeal in upholding appellant’s claim that the liquor should be returned to it stated: “The cargo was properly halted and seized by the officers of the State of Texas because of the violation of the law on the part of the driver of the carrier’s vehicle. But Young’s Market Company had no control over the transportation, and no complicity in or knowledge of the law violation . . . [I]n our opinion it is not contemplated by the Texas Liquor Control Act that under these circumstances a lawful and innocent owner of property should be deprived of the value thereof by confiscation.”
In the context of the insurance policy which is the subject matter of this litigation, the loss which here occurred was not by reason of risk of contraband. Here again we are aided by the construction given the transaction by the Court of Appeal of the State of Texas. The opinion of that Court declares: “In the instant case the cargo was not contraband. The transportation of the liquor was lawful from its inception and the only violation shown was on the part of a truck driver who was the employee of a common carrier, over whom the owner of the cargo had no control.”
We conclude, also, that in the context of the policy the loss here involved was not a loss from illegal transportation. The seizure out of which the expenses claimed by appellant arose was not the result of a transportation which was illegal. It occurred because the driver in charge of the cargo failed to supply the Texas authorities documentation which had been delivered to the carrier with the cargo. The incidental illegal activity on the part of the driver is not that type of risk which is excluded by the “illegal transportation” clause of the policy. (See 11 Couch on Insurance 2d § 43:209.)
Having determined that the seizure by the Texas authorities was not the result of a risk excluded by the policy, we must conclude that the sum *318reasonably expended by appellant to recover its property is reimbursable by the insurer (respondents). That sum constitutes an expenditure to defend, safeguard and recover insured property within the “Sue and Labor” clause quoted at the outset of this opinion. Such expenditures constitute a loss reimbursable by the policy. (6 Appleman on Insurance, § 3794 and cases there cited.)
The judgment should be reversed.
Peters, J., concurred.