
    [Philadelphia,
    April 11th, 1836.]
    PRESCOTT against The UNION INSURANCE COMPANY.
    IN ERROR.
    1. Tbe want of sea-worthiness in a vessel, at the commencement of the voyage, will be a sufficient defence to the insurers on tbe vessel, although she'arrived in safety at her port of destination.
    S. Where the question was as to the sea-wortbiness of a vessel, in an action by the insured against the insurer, and there being no contradictory testimony as to the facts, the > judge charged the jury that “if the facts are as stated in the protest, that the vessel began to leak as soon as she began to sail or soon after, and continued to leak up to the1 time of the storm, or any fortuitous accident, and would in consequence thereof have required repairs although there had been no storm, then the law says she was unseaworthy,” it. was held that the law was correctly laid down, to the jury, and that the Court was right in not leaving it to the jury to presume sea-worthiness or otherwise.
    This was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action of covenant brought in that Court by David W. Prescott against The Union Insurance Company of Philadelphia.
    The action was upon a policy of insurance for $1500, dated the 30th of June, 1830, executed by the defendants upon the schooner James Munroe, at and from Philadelphia, to the Island of St. Thomas, and back to a port in the United States, with liberty of St. J ago or Porto Rico. The claim- was for a partial loss, incurred, as the plaintiff alleged, in consequence of a gale of wind; and the only question was the sea-worthiness of the vessel.
    -. The evidence produced on the trial by the plaintiff'consisted of the deposition of the captain and mate, the protest made by them, the report of the surveyors and the testimony of tv\?o other nautical persons. The captain testified that the vessel sailed from Philadelphia on the 1st of July, 1830, that she was then sound and sea-worthy. From the 4th to the 9th of July she leaked so as to require occasional pumping. On the 9th a gale of wind came on with a heavy sea, by which the leak increased considerably, making 300 strokes per hour, carried aw’ay the main-boom and topping lift, the vessel straining much and the pumps constantly going. The worst of the gale continued about 36 hours, On his cross-examination he said, that the leak was rather increasing previously to the gale, but never so as to cause alarm. If a vessel leaked on an average 200 strokes per hour, it would be a great state of leakiness; if 250 strokes per hour, it would have required something to be done before it would be safe to go to sea again. If there-had been no gale'and she had continued to leak during the passage, as she did on the day before the gale, then, at a place like St. Thomas, he would have considered it best and necessary. to have hey looked at before going to sea again. With a cargo such as fustic, which would not be injured by wet, he would not have been afraid to risk himself on á voyage home in her again, without having any thing done to her; but he would not nave taken a cargo of ordinary merchandize. She did not leak much on her homeward voyage. She had been caulked on deck and under deck at St. Thomas.- The protest which was sworn to at St. Thomas, on the 20th of August, 1830, set forth the copy'of the jog book,from which it appeared that the vessel leftthe capes of the Delaware on the 4th of July, on which day they had pumped the ship every half hour. On the 5th the same entry appeared, “ she making at her pumps 200 strokes per hour on an average.” On the 8th it is said,“ we find our leak increasing, it having required 250 strokes at the pump every half hour; therefore, we pump ship every 15 minutes.” On the 9th the gale commenced, during which the pump made 300 strokes per half hour, and on the next day,the ship was pumped every 5 minutes. On the 12th of August she arrived at St. ■Thomas, where a survey was held upon her. The surveyors reported that they “ found her very open outside and in, above water, found the partners of her mast much strained, and the brake of her quarter deck open,” and they recommended “ her being caulked and paid inside and out, the stern sheathed, her chain bolts backed out and made larger, her sails repaired, and two coils of rigging furnished for halyard and lanyards.” She was accordingly repaired at an expense of #187 68. A captain of a vessel, called on the part of the plaintiff, said, that he did not know that he should consider 200 strokes per hour as any thing more than common leaking. He had been in vessels that required that quantity of pumping, and would not consider them' unseaworthy, and he had been in a vessel that leaked at the rate of 250 strokes in an hour, without being afraid to go in her. Another nautical witness testified to instances of vessels leaking 250 to 300 strokes per hour, that were otherwise sound. On the part of the defendant a witness was called, who said he had been a dispacheur for 17 years, and upon the facts stated in the protest would consider the vessel unseaworthy.
    The evidence having been closed, the Judge charged the jury as follows:
    “ This is a mere question of property to be decided without excitement and according to law and evidence. But for what has fallen from counsel, I would not caution the jury on this head. The counsel, is true, disclaim all intention to prejudice the jury,’ or to. allege that a different view is to be taken of the rights of an individual from that which would be taken of the rights of an incorporated company; but yet, the remarks of counsel have had such a tendency, that I feel it my duty to make these observations, however, I may regret the necessity of doing so.
    Insurance is a contract, whereby, for a stipulated consideration called a premium, one party, called the insurer, undertakes to indemnify the other, called the insured, against certain risks, '
    The subject in the present case was the ship, being a schooner, called the James Munroe; the risk insured against and now in question, the perils of the sea.
    The voyage was a voyage from Philadelphia to St. Thomas.
    The claim is for a partial loss alleged to have been occasioned by the perils of the sea.
    Good faith is the basis of this contract; and the mere act of effecting insurance is a pledge on the part of the assured that certain facts are true; thus, where the parties have omitted to say anything about sea-worthiness, the mere effecting the policy carries with itAn implied warranty on the part of the insured, that the vessel is sea-worthy. If it turns out that the ship was not sea-worthy at the commencement of the risk, the condition on which the liability of the underwriter depends, is forfeited; and it is, so far as the responsibility of the insurer goes, as if no contract had been made: and this is true, whether the unseaworthiness were known to the insured or not. It is not necessary to impute a fraud to him. The rule is the same, even though the unseaworthiness arises from some latent defect which the assured had no knowledge of, and could not have discovered or prevented.
    
      These principles are well settled: they are founded in good reason, having in view the protection of life and property.
    The idea of sea-worthiness is not limited to the sufficiency of the vessel merely to save the lives of the persons, who may be on board, but extends, also, to her sufficiency for the safety of the property on board of her. The vessel must be sufficiently staunch and sound for the employment and situation, intended by the insurance. She must be in” a suitable and fit condition to carry the cargo put on board, or intended so to be.
    It is not disputed, that on the arrival of the schooner at St. Thomas, certain necessary repairs were made, and that they, with incidental expenses, amounted to #204,68; the sum which with interest is claimed by the plaintiff in this suit.
    The defence, here, is, that the vessel was unseaworthy at the commencement of the voyage; and the defendant’s counsel contend, that the testimony in the case fully proves this. It is clear that the underwriters are not liable for the wear and tear of the voyage; the mere ordinary working and straining of the vessel, any more than for an insufficiency or inherent defect in her. A portion of the repairs, as appears by one of the vouchers produced by the plaintiff, was in consequence Of leaking or springing a leak ; and in such a case, the law lays down certain rules, which are obligatory upon the parties, and which are to be enforced by courts and juries.
    Though the general presumption of the law is, that the vessel is sea-worthy, and the party alleging unseaworthiness, must, in most cases, show it: yet where springing a leak has given occasion for the repairs, the .burthen of proof is thrown upon the insured : as repairs, from such a cause, are not usually considered as covered by the liability of the underwriters. The assured must, in such a case, show that the damage, for which he has a claim, is the direct effect of a fortuitous accident. In the absence of such proof, the springing a leak is to be attributed, either to the working and straining of the vessel, which is the wear and tear of the voyage, or to some insufficiency or inherent defects; for neither of which, are the underwriters liable; and if the vessel spring a leak soon after the risk commences, without any apparent cause from the perils insured against, especially when it satisfactorily appears, that no accident happened to occasion the damage or defect, the marine law infers, that she was- defective at the beginning of the risk and not seaworthy. The rule must be at least as strong where the leak commenced with, and continued through the voyage. If the vessel was unseaworthy at the commencement of the risk, it is immaterial whether or not the subsequent injury was in any degree occasioned by the storms or gales mentioned in the protest. If the case in 1 Johns. 241, is opposed to these principles, it is not law with us. It could be distinguished, however, from a case like the present: but it is unnecessary to point out the differences.
    
      Then what are the facts here 1
    
    The protest is by.our law evidence: but it is liable to explanation ; and the formal printed part of it is not to be allowed weight against the substantial and written part of it, and the testimony of the persons, who signed, it, when taken according to law,, subject to cross-examination.
    The power of the jury relates to the facts. The extent to which it may, with propriety, be exercised, can hardly, I presume, form the subject of controversy.' If the facts are clear and undisputed, and the law has laid down rules for the government of us all, in regard to such state of facts, all appeals to the jury to disregard the law, as explained by the Court, are to be avoided; inasmuch as they impute to a jury a disposition to set up a standard for themselves, different from "that, by which all classes of men are protected in a civilized and enlightened community, and are positively mischievous, if responded to in the spirit in which they are made; because the law will not lend itself to sustain such an answer; and the parties are necessarily put to the trouble and expense of another investigation, where the law most assuredly will control every branch of the tribunal, which it has created to carry out its own purposes'..
    If the facts are as stated in the written protest — that the vessel began to leak as soon as she began to sail, or soon after, and continued to leak up to the time of the storm, or, any fortuitous accident, (and would; in consequence thereof, have required repairs, although there had been no storm,)'then the law says, she was unseaworthy, and the defendants are not liable in this suit. If there were any other facts contradicting these, you might certainly weigh them, and find accordingly, and if they satisfied you, that the vessel was sea-worthy at the commencement of the voyage, a different result would be required. In the absence of such other facts, the rule of law must prevail.”
    The jury after being out some time returned, and inquired of the Court:—
    “ Whether the law pronounces the fact of the vessel leaking at the .time of, or soon after her leaving port, decisive of the question of 'her sea-worthiness; or whether this question is^^^qpfin^OEdihe jury to decide from their judgment on all the cir^mstances-.” ^ :>sv
    The Court answered as follows: — “ If the fapts lire, as statecWn])' the written protest, that she began to leak as sopa £s^?he^b(^^|)|taii sail, or soon after, and continued to leak up to the time of the'st.bfrnp, or any fortuitous accident, (and would, in consequence J,,bc.r^&L l|av,e; required repairs, although there had been no stbrm;)1* m'éÍT me-■says, she was unseaworthy.”
    The jury thereupon found for the defendants, and tnfi plaintiff took a writ of error, and having removed the reeord to this Court, assigned the following errors:—
    “ The Court below erred in their charge to the jury in the following points: ' .
    
      First. That when springing a leak has given occasion to repairs, the burthen of proof of seaworthiness is on the insured, as such repairs are not usually considered as covered by the policy : the insured must show that the damage is the direct effect of accident.
    
      Second. That if a vessel spring a leak soon after the risk commences, without any apparent cause, the law infers upseaworthiness at the beginning of the risk, and the subsequent injuries by storm are immaterial.
    
      Third. That the printed formal part of the protest is to have no weight against the substantial and written part, and-the testimony of those who signed it.
    
      Fourth. That if the facts are, as stated in the written prótest, that the vessel began to leak as soon as she began to sail, or soon after, and continued to leak up to the time of the storm, and would, in consequence thereof, have required repairing, although there had been no storm, then the law says, she was unseaworthy.
    
      Fifth. The Court erred in taking from the jury indirectly the decision of the facts:
    
    1st. By censuring the plaintiff’s counsel for addressing the jury as the judges of the fact of sea-worthiness.
    2d. By the whole tenor and drift of the charge, assuming to the • \ Court the decision of that question upon their view of the facts as one of mere law.
    3d. '■ By restricting the jury to the facts stated in the written part of the protest. .
    4th. By putting these facts to the jury as clear and uncontradicted, and as establishing unseaworthiness.
    ■ 5th. By intimating to the jury, .that a verdict against the Court’s opinion on the question of sea-worthiness, would be nugatory.
    
      Sixth. The answer of the judge to the question by the jury was evasiye. The question was direct; “ Whether the law pronounces the fact.of the vessel leaking at the time of, pr soon after her leaving port, decisive of the question of sea-worthiness.” This should have ■ been answered “ yes'” or “ no.” But the judge complicates his answer with'the circumstance of her requiring repairs, and leaves the actual question unanswered, except by implication.
    
      Seventh. The judge erred in stating in his charge as applicable to this subject, “ that the idea of sea-worthiness is not limited to the sufficiency of the vessel merely to save the lives of the persons, who may be on board, but extends also to her sufficiency for the safety of the property on board of her.”
    Mr. F. W. Hubbell and Mr. Holy for the-plaintiff in error.
    The question is, whether the circumstance of a vessel being leaky is sufficient to deprive the insured of compensation for injury suffered by reason of a storm.. The judge ought to have left the question of sea-worthiness to the jury as one of fact, instead of deciding it as a matter of pure law. Even as a question of mere law there is error in the charge. Had this been an insurance on the cargo, it would have been right; but the insurer on the ship had nothing to do with her capability to transport a cargo of flour without damage, The true proposition is, was the vessel sufficient for her own preservation. There is error in the answer to the application of the jury.. They ought fo have been told, that if the vessel was leaky to such an extent as to require repairs, she should be considered unseaworthy. There is no authority to support the position, that a leak makes a vessel unseaworthy. The experience of the nautical ' witnesses proves, that this cannot be the case. It- will be found that in .all the cases, “ sea-worthiness” and “ navigability” are convertible terms. Bell’v. Read, (4 Binn. 130.) Cormack v. Gladstone, (11 East, 346.) 1 Condy’s Marshal, 154, 476. Park on Ins. 220, 221, ^ n. Patrick v. Hally, (1 Johns. Rep. 244.) lb Picker. Rep. 56. Taylor v. Lowell, (3 Mass. Rep. 344.) Barnwell v. Church, (1 Caines’ Rep. 246. 4 Strange, 127. Talcott v. Ins. Co. (2 Johns. Rep. 75.)
    Mr. Cadwalader and Mr. J. C. Biddle, contra.
    This case was decided mainly upon the plaintiff’s own evidence. •The effort was to make the question of sea-worthiness, which is a mixed one óf law and fact, altogether a matter for the jury; which-the judge resisted; and his course in this respect is sanctioned by the authorities. Bushel’s case, (Vaughan’s Rep. 144.) Oneby’s case, (2 Ld. Raym. 1484.) Pfoutz v. Steel, (2 Watts, 413, 14.) Crist v. Brindle, (2 Penn. Rep. 262.) Franciscus v. Reigart, (MS.) Stewart v. Stocker, (1 Watts, 141, 2.) Malson v. Fry, (1 Watts, 433.) Riddle v. Murphy, (7 Sergeant ¿p Rauile 237, 8.) 9 Peters’ Rep. 567, 8. Baker v. Lewis, (4 Rawle, 357.) Kingston v. Leslie, (10 Serg. ép R. 389,90.) Johnson v. Gray, (16 Serg. ¿p R. 366.) Somerville v. Holliday, (1 Watts, 516, 17.) Star v. Bradford, (2 Penn. Rep. 398.) Commonwealth v. Henderson, (1 Penn. Rep. 401.) 9 Cowen, 225. Fox v. Clifton, (9 Bingh. 115.) Then upon the law of this casé, the charge was in conformity with the opinions of the best text-writers, and the decisions of the Court. When the' vessel is shown to be defective, the burden of proof, that she was sea-worthy, rests upon the insured : 1 Marshal, 156. Parke, 221, n. Stephens, 152. Benecke, 455. 1 Phillips on Ins. 116, 17. Holt on Shipping, 
      303. I Dole’s Rep. 342,344. Talcottv. Com. Ins. Co. (2 Johns. 128, 130.) Annen v. Woodman, (3 Taunt. 299.) Bell v. Read, cited on the other side, was a question of bailment disconnected with the doctrine of insurance; and in the recent case of Hart v. Allen, (2 Walts, 119,) the present Chief Justice has shown, that the Nisi Prius opinion of Judge Brachenridge was not sustained by the Court in bank. There is no such distinction as that contended for on the other side, between the sufficiency of á vessel for self-preservation and for the preservation of the cargo. Abbott v. Brown, (1 Caines’ Rep. 292;) 2 Phillips on Ins. 110 ; Hughes on Ins. 205.
   The opinion of the Court was delivered by,

Sergeant, J.

The legal principles in relation to sea-worthiness of vessels insured, are clearly and succinctly stated in the opinion of the (now) President of the District Court, brought up with this record. The plaintiff insists, that the doctrine on the subject is not applicable to the present case. He admits the law to be, as laid down in the authorities, that if a vessel sails on her voyage, and in a day or two, becomes leaky, and founders, or is obliged to return to port, without any storm, or visible or adequate cause to produce such an effect, the presumption is, that she was not sea-worthy when she sailed. Munro v. Vandum, (Park’s Ins. 224.) Talcott v. Marine Ins. Co. (2 Johns. Rep. 124.) But he contehds, that if she perform the voyage, and arrive at her port of destination, she is to be deemed sea-worthy, as between the insurer and the insured on the vessel, whether such leakiness has occurred or not. This would subvert the rule as to sea-worthiness altogether, and make it depend not on the state and condition of the vessel at the time she sails, but on the event. It would substitute an unfair and dangerous test, in lieu of the wise and salutary requisitions imposed by the Jaw; for the best provided vessel may meet with misfortune, and founder at sea, or be compelled to return to port. On the other hand, a weak and insufficient ship may attempt the voyage, to the imminent danger of the lives and property on board, and yet escape destruction almost by a miracle. It is not by events, that human affairs are to be judged. Experience teaches us, that in a vast majority of these cases, unless •due precautions are taken, disaster will ensue: and therefore the law requires it of the insured, as a condition precedent to the attaching of the contract of insurance, that the vessel at her departure from port be tight, staunch, and strong, well fitted, manned, and provided with all necessary requisites, to meet the perils of the ocean, which she is to encounter in her voyage. And the inquiry is not, after the voyage is ended, has she escaped notwithstanding a gross neglect of all that prudence dictated for her preservation; but was she equipped and fitted out as she ought to have been. If she was not, she was not sea-worthy, — not worthy or fit to go to sea: not in a condition to meet and resist its perils. A contrary doctrine would tend to throw on the insurer the expense of repairs, which the insured himself ought to have disbursed before the vessel sailed. Besides, a vessel tight, staunch, and strong, and in good sailing condition, will pass, without harm, through assaults which would materially damage a leaky and infirm ship. The latter is not only less able to resist the shocks of the winds and waves, but the crew are exhausted by the necessity of pumping, and, therefore, incapable of performing their duty, when great exertions become necessary. She is not, therefore, so well manned as she otherwise would be. Nor is it wise or safe to tempt owners and shippers to run into danger, when unprovided to meet i't. The disasters of mariners, not unfrequently of the most dreadful and appalling character, ought not to be multiplied, by stimulating them into unnecessary experiments, how far they dare venture in a leaky vessel. The law casts her mantle of-protection over them, as well as the interests of the shipper, by declaring that no insurance on the vessel is valid, if she is put to sea in an unseaworthy state; and it is of importance to the great interests embarked in commerce, as well as to the preservation of life, that the requisitions of the law in this respect should not be relaxed. The owner should be obliged to perform his duty, and be induced to attend to that, which he alone can attend to, the state and condition of his vessel, and to place her, under the guaranty of the policy, in a condition fitted to meet those perils of the sea, which the insurer takes upon himself.- If he does not, he, throws on the insurer other perils not within the contract: perils which do not the less exist, because, by good fortune, they may happen not to prove fatal: and which may, of themselves, produce an average loss, without foundering the ship or defeating the-voyage. If the owner does not choose to do this, or even if it occur without his knowledge or default, (and the same rule applies to policies on goods,) there is no contract: the consideration fails, and the risk remains with the party himself. We are, therefore, of opinion, that the doctrine is applicable, notwithstanding the vessel reaches her port of destination; if it sufficiently appear by .the -evidence, that the vessel sailed in a leaky state,, and in want of repairs. And this is the point of view in which the Court below put the case to the jury.

Nor is there any foundation for the complaint., that the Court took the facts from the jury, or assumed more than they ought legally to have done in charging them. The Court applied the rule of law to the facts as they appeared, at the same time instructing the jury, that if there were contradictory facts, they might consider them, and the result would be different. There were, however, no contradictory facts shown, and the Court would have erred to leave it to the jury to presume facts, without any evidence, from which such presumption could legally be drawn. To submit a fact destitute of evidence,” says C. J. Gibson, in Stouffer v. Lalshaw, (2 Watts, 167,) “ as one that may nevertheless be found, is an encouragement to err, which cannot be too closely observed, or unsparingly corrected.” To the same effect, is the opinion of the Court delivered by Mr.Justice Rogers in Star v. Bradford, (2 Penn. Rep. 398.) Here the evidence was clear, that from her departure, this vessel, with constant light-breezes, leaked; that the leak continued increasing for nine days, so that the hands were obliged to pump, at first, every hour, then every half hour, and then every fifteen minutes : after-wards a s'torm commenced, and the vessel laboured much, and shipped great quantities of water, till they had to pump every five minutes, and she continued very leaky, damaging the cargo, until her arrival. No evidence was given by the insurer to account for this state of the ship: there was no violence of wind or wave till the 9th day; there was not time for the ordinary working and straining of the timbers to produce a leak : and the inevitable presumption is, that she had an inherent defect at the time of sailing. This is the legal presumption, and so stated in the authorities, and elementary writers, and the Court, in laying down the law to the jury, could, do no otherwise than state that- legal presumption on, the facts existing. Upon the whole, the charge of the Court is, in the opinion of this Court, correct, and the judgment must be affirmed.

Judgment affirmed.  