Patrick against Hallett and Bowne, 1 Johns. 241

Court. We shall adhere to that decision, unless a demurrer to evidence, or any new facts, make a difference in the case. Livingston, J. Whatever doubts may have once existed in England respecting an underwriter’s liability, in case of a vessel not being sea-worthy, when the risk commences, it is now well settled there, as well as in every other commercial country, of whose laws we have any knowledge, that this is an implied warranty in every contract of insurance.

If it, however, turns out, that she is not so, or in other words, not in the condition to encounter the ordinary perils of the voyage proposed, the policy is without consideration, and void. Though this be the law, about which there is no dispute, it must be very difficult, in many cases, to shew the state of a vessel at the commencement of a voyage, with sufficient certainty, ■to satisfy a jury that she was sea-worthy; for it is admit-Í ted, if she be so then, it is enough, whatever may be her condition immediately after.

This is purely a question of fact, and like all others, will, sometimes, admit only of circumstantial proof; if there were any evidence, now, from which a jury might have drawn this conclusion, it -must be considered as admitted by the demurrer, and that too, without any scrupulous inquiry, whether such inference would be correct or not, for courts should not encourage this practice.

It is not only productive of considerable delay and expense, (for this action is already in the eighth year of its existence,) but unless all inferences are admitted, which a jury might have drawn, judges, instead of confining themselves within their province of deciding on questions of law, will also become triers of every matter of fact.

If this be the rule in examining testimony, when brought up by a demurrer, who can say that a jury might not, and very correctly too, have been of opinion, that the Peggy was sea-worthy when she sailed from Turks-Island for Nexv-Yorkf The mate swears positively to this fact, when he says, “ that “ she was then tight, strong and staunch, and competent, “ *n P°*nt °f strength and ability, to her intended voyage, “ and that she had a sufficient crew and was well supplied u with. provisions, and other necessaries.” Here are all the ingredients of sea-worthiness. ' Two other witnesses depose, that they repaired the Peggy, in the summer preceding her loss in November, that- she was tight when she went out of their hands, and that they thought hersea-worthy.

She was built too of very good oak timber, and was only two years old when lost; in addition to this, it is admitted by the defendants on the record, that she was sea-worthy, only three months prior to the shipwreck. If the jury, on this positive testimony of the mate, and on the circumstances of her being a young vessel, built of durable materials, of her being admitted sea-worthy only three months before her loss, and on the general presumption, that every vessel is so, until the contrary appears, might not very fairly have found for the plaintiff, I hardly know what would have justified their so doing.

In opposition to all this, it is said, she was lost the day after sailing, “ without any stress of weather, or apparent cause or accident,” and that then the fair and natural presumption is, against her being sea-worthy.

Without controverting or acceding to this proposition, which must frequently bear very hard on the assured, it is not true in point of fact, that her loss cannot be ascribed to any apparent cause or accident; and if it were so, it would only throw on the insured the onus of shewing, (which, as has been stated, the jury may very fairly have thought was done,) that at the time of her departure from Turks-Is land, she was in truth, sea-worthy.

But there is no occasion to have recóurse to these inferences, because the mate expressly ascribes the loss to a “ sudden springing of a leak,” Or will it be denied, that springing a leak, is a peril insured against, or in face tif the positive declaration Of another witness, who was a sea-faring man, that it may happen to the best vessel and in mild Weather.

I am not prepared to push to this length, the doctrine of sea-worthiness, , (which, as it respects an innocent shipper of goods, has V . . ' * , . . , . nothing to recommend it,) being very clearly ot opinion, that every accident that can be traced to the springing of a leak, whether in a calm or storm, or whether afteiva short or long absence from port, is a loss within the policy, . and is not of itself evidence of an unworthy or insufficient , vessel. The plaintiff must, therefore, have judgment. Thompson, J. Spencer, J. and Tompkins, J. conchirred. Kent, C. J.

The question is, >vhether the plaintiff is entitled to recover, upon the testimony he has produced, and to which the defendants have demurred. A verdict was taken for the plaintiff in this cause, upon the same evidence, in April 1801, and at January Term 1802, a new trial was awarded, because, the law will intend a want of sea-worthiness, when no visible or rational cause of the loss appears, or any other than some latent and inherent defect in the vessel.

The vessel when she sailed from Turk’s Island, ought to have been tight, staunch and strong, and competent to resist the ordinary action of the winds and waves, during the voyage insured. The question is, what will the law presume, when she suddenly springs a leak, within a few hours after her departure, “ without its being occasioned by storms, violent winds, currents or accidents of the sea.” I continue of the opinion given when the new trial was awarded, that the law will presume the vessel not sea-worthy; and such is the conclusion which the law draws from the testimony before us.

There is but one English decision, that relates in any material degree, tq the subject, and that is the case of the ■Mills Frigate, in. the court of exchequer. (Park 222.) In that case, there was also a demurrer to the evidence; The principal fact was, that the frigate sailed from Nevis in the West-Indies, for London on one day, and on the next, she sprung a leak by starting a plank, without any bad weather, or extraordinary swell of the sea.

The judgment of the court was in favor of the insurer, and on a writ of error to the exchequer chamber, it was always understood until very lately, and so stated in all the books, that the judgment was affirmed; but Mr. Park, in the last edition of his work, observes, that he has now discovered to the contrary. Be that fact as it may, the court of C. B. on the same policy, and facts, decided, as the court of exchequer did, that the frigate was not sea-worthy.

Under the. peculiar history of the report of that case, and the different decisions upon it, its authority, if not much impaired, cannot be considered as unfavourable to the defendants.

Marshall is decidedly of opinion, (p. 367, J that-where a ship is lost, or incapable of proceeding on her voyage, and this cannot be ascribed to stress of weather, or any accident in the voyage, the fair and natural presumption is, that she was not sea-worthy; and it is incumbent on the insured to show, that at the time of her departure, she was in fact sea-worthy; that it is a wholesome rule, that the insured should be held to pretty strict and cogent proof of this.

If, on the other hand, it appear from the facts in the case, that the loss may be fairly attributed to sea-damage, or any other unforeseen misfortune, the onus probandi will lie on the insurers, if they allege that the ship Xvas not sea-worthy.

This opinion is supported by that of Casaregis, and by a decision of the Rota of Florence in 1726, in which it was decided, that the assured was bound to prove affirmatively, that the loss happened by one of the perils insured against, otherwise, the innavigability of the vessel from inherent defects, would be intended. (Marshall 365,) The same presumption is adopted by Valin; (Vol. 2,103,) but the French law had, in part at least, drawn a different conclusion from one of the articles of the ordinance of 1682, relating to freight, (Ord. de la Mar. tit. du fret Art. 12,) and which had nothing to do with the question of insurance.

The deduction, drawn from that

article was, that every ship was presumed sea-worthy at the time of her departure, and that it lay with the opposite party to prove the contrary. To prevent the abuse of this presumption, of which the insurers were too often the victims, the ordinance of 1779 was passed, requiring a survey previous to every voyage; since that time the presumption, either the One way or the other, depends entirely upon the fact of the previous survey. Emerigon however, observes, that this construction of the

article on freight, was but in part adopted by the French law, and in the eight cases which he reports, as argued and adjudged on the question of sea-worthiness, a previous survey seemed generally to be the cause of turning the presumption against the insurers. (1 Emerigon, 374, 576 to 591.) I am therefore of opinion, that judgment ought to be rendered for the defendants. Judgment for the Plaintiff. Douglas, 119 —2. Hen. Bl. 187. P.371. The 5th edition of Park, was published the same month. Marshall cites the case from Park, probably, from tiie earlier editions.

In a noteheobserves Cp. 372) that an action on the same policy was tried in the common pleas, before Lord Camden, who directed the jury to find for the plaintiff) but on a motion for a new trial, he altered his opinion, and the court unanimously determined, that the ship not being sea worthy, the plaintiffs, however innocent, could not recov» er.