
    No. 1009.
    J. L. Pointer v. Merchants’ Mutual Insurance Co. and E. W. Rodd v. Louisiana Mutual Insurance Co.
    "Where a vessel at sea suddenly sinks, and no specific cause of the disaster is shown, the presumption of law is that the vessel is unseaworthy. This principle of law does not apply where the evidence shows that the loss of a vessel at sea by sinking was the direct result of afire which accidentally broke out in a part of the vessel, from the effects of which the vessel sinks; in such a case it must be held, that the sinking of the vessel is a peril insured against, and the insurers must bear the
    APPEAL from -the Sixth District Court of New Orleans, Duplantier, J.
    
      A. & M. Voorhies, for Merchants’ Mutual Insurance Co., appellant.
    
      Ed. Briggs, for Louisiana Mutual Insurance Co., appellant.
    
      Randolph, Singleton & Bardie, for plaintiffs and appellees.
    
      Brief of plaintiffs and appellees.
    
    * * * We shall proceed to show 'that’the steamer was lost by perils insured against:
    1. What were the perils insured against? The policies (pp. 7 and 27) bound tbe defendants to indemnify for losses and misfortunes which should come to the damage of said steamboat “ by rivers and fires. ” She was insured in the poTt of New Orleans, where the risk attached against the “Mutual” on the 25th of February, and against the “Merchants ” on the dth of March, 1865, to continue for six months. Each Company insured her from New Orleans to the Rio Grande, and each insured her while running between Matamoras and Bagdad, the trade she then contemplated.
    2. She was lost by the perils insured against. The steamer had run about two months on the Rio Grande, between Matamoras and Bagdad —the trade for which she was insured; was a popular boat and making money. Pp. 55, 85, 87, 110, 111, 140. On the 1st of July, at é o’clock, p. jl, she arrived at Matamoras with a cargo, and was not unloaded oh the same evening, because of the difficulty of procuring hands on Saturday eveni g, and the disinclination of the merchants to receive the goods late in •he evening. Pp. 86, 87. Besides this, it rained on Saturday and on the following day. P. 87. Nor was she discharged on the Sunday following, because labor is prohibited on Sunday by the authorities of Matamoras. Pp. 56, 87. The steamer Montezuma arrived in Mat"moras some hours before the Fanny Fisk, and she did not discharge her freight until the Monday following. P. B'G. On Monday morning early, the Fanny Fisk caught fire. After half an hour of great exertion by the officers and men, the flames were arrested, and in about half :an hour more they were extinguished. There was a second fire, occasioned by the upsetting of a lamp, but it was easily subdued. Scarcely had the boat’s crew retired to rest after their severe labor, when they were aroused by the alarming cry that the boat was sinking, and in a few moments she did sink: The defendants having given plaintiffs a policy purporting to be one of insurance, in which there is this clause: “Touching the perils which this Company is contented to bear and take upon themselves in the premises, they are of the Rivers, Fires, and all other perils,” etc., (pp. 9, 27,) we proceed with all confidence to show that the plaintiffs’ loss was incurred by both of the perils insured against.'
    1st. As to the fire.
    James McConnell, (p. 79.) proves that when the steamer was tied to the landing at Matamoras, she caught fire, between one and two o’clock Sunday night, the 3d of July, 1865. “ The fire broke out in a room by the side of the engine, and on the side nearest the shore, where the engineer kept oil, paints, packing, and tools.” The fire had so far advanced that when witness opened the door, “the blaze burst full in his face and burnt his beard and hair.” P.80. Closed the door, and although he did not see any one around or near the room when he discovered the fire, “in two or three minutes from the time the alarm was given most of the officers and men were at work with the pumps and the buckets.” “The fire spread with great rapidity, owing to the quantity of oil, oakum and the pine wood of which the room and boiler deck was made.” Pp. 80, 81.
    About half an hour elapsed before the fire was at all arrested, and it was an hour or more before it was extinguished. P. 81. Although* thb witness did not examine the hull after the fire, he saw the earpenterj engineer, and a Mexican deck-hand come out of it from an examination. There were on board at the time of the fire, the captain, the two engineers, Messrs. Bucholdz and Simons, Bodd and Maranaux, Jones, the steward andeook, the firemen and five hands, and all engaged in putting out the fire. And still further on the subject of the'fire and the efforts made to extinguish 'it, the witness speaks at page 89, on cross-examination.
    A.-P. Bucholdz, an engineer on board of the steamer, corroborates the foregoing statement in every respect and to the fullest extent. Pp. 103, 101, 108. He declares that the fire raged with great fury, and-that the flames seemed at one time to envelop the boat.
    J. P. Bodd testifies to the fire, the extent of it, and the injury to the boat, tbe duration of it and its fiual extinguishment, and corroborates the statement of McConnell and Bucholdz. Page. 53.
    After it was supposed that the fire had been entirely extinguished, the meu retired to rest, when there was a second alarm of fire; but it is' not necessary to dwell on it, for it was “quite slight” and speedily extinguished. Pp. 53 and 51. It was oaused by the upsetting of a lamp. Ib.
    2. As to the water.
    There cau be no doubt whatever, that immediately after the fires were extinguished the boat sunk, and was a total loss. “She went down in about two hours after.” Rodd, p.-51. She sunk in about an hour and a half after. McConnell, p. 82. “On returning, I saw her careening rapidly, and at the same time I heard the noise of the water as it rushed into her.” P. 82. He gave the alarm, crying out “ the F.mny Risk is sinking.” P.83. Bucholdz was preparing to go to bed when he heard the cry, and she sunk immediately. P. 106. “The cook and the first clerk came near being drowned; the cook had to jump overboard aft.” P. 106. Indeed, the suddenness with which the boat went down, the consternation it produced, and the extent of the danger to the officers and crew, are clearly and distinctly stated by the witnesses, who, in every essential point, corroborate one another. In conclusion, we refer to the “protest” made in the “heroic city of Matamoras,” immediately after the loss, for a full narration of the loss as it happened, both by fire and water.
    We might here rest the case, being satisfied that the testimony brings the loss within the terms of the policy. But before doing so, it may be well to consider the grounds on which resistance is made to the payment of insurance:
    1. The defendant admits the execution of the policy, and denies the allegations of the petition. So far, the enquiry is narrowed to a single question, and the proper answer to it. The policy being admitted, the enquiry is, were the defendants insured against the loss which occurred? An inspection of the policy establishes that the insurance was against loss by rivers and fires, and the testimony of the witnesses, Rodd, James McConnel and Bucholdz, before referred to, establishes the fire, and that the boat sunk in the river. They show that she was well commanded by a competent captain, and had her complement of hands and officers, and was “ well provided for.” Rodd’s testimony, pp, 52, 53. McConnell's pp. 77, 78. Captain Rault’s, pp. 93, 91. Bucholdz’s, p. 96.
    2. The defendant’s special defence is, that the steamer was unseaworthy. We cheerfully join issue with the learned counsel on this imaginary defence, and call upon the record to “vindicate the right.”
    The plaintiffs, with a sagacity which has almost proved to be prophetic, .when they determined to put the Fanny Fisk in condition to- enter into, the trade on the Bio Grande, repaired her under the auspices of Richard; Swain, “ a marine inspector for tlie underwriters of New Orleans,” who has been engaged in this business twenty-seven years — surely long enough to have gained experience, as he certainly had gained the confidence of the underwriters of New Orleans, who testify to the fact by retaining him for more than a quarter of a century in office. Page 137.
    The prophetic souls of the plaintiffs admonished them that there might be trouble, for they knew that it is sometimes as difficult to collect “ losses ” as it is easy to pay premiums; so they determined to make the Fanny Fisk seaworthy, under the inspection and direction of that marine institution, Richard Swain, whose “ipse dixit” is almost invariably accompanied by a corroborative judicial judgment. He states “the Fanny Fisk was repaired under my supervision.” “She was repaired between a month and six weeks.” “ There was as large a force employed working on her as could conveniently work. I was present every morning, pretty much, while these repairs were going on; I very seldom missed. I had a carle blanche to put the boat in order; I did so.” He refers to his certificate, corroborates and adopts it, (pp. 138, 140) and fixes the time at which the repairs were made. He adds: “ I was inspector at that time specially for the Crescent Louisiana Mutual Insurance Co., and the Merchants’ Mutual Insurance Co. P. 139. Two of the companies, defendants, in these suits.
    
      Brief of def endants and appellants.
    
    Under every aspect of the case, the plaintiffs are involved in difficulty.
    1. If the fire had been the.cause of the ultimate disaster, then the vessel was unseaworthy for want of a competent captain and crew; their negligence and carelessness must fall upon their principals. Whitney v. Ocean Ins. Co., 14 La. 485. Caldwell vs. La. Ins. Co., 19 La. 42. Dupoire v. Western Ins. Co., 2 R. 57. Lapene v. Sun Ins. Co., 8 An. 1.
    2. If the fire be not the cause (causa causans) of the subsequent wrecking, then no specific cause is suggested, and the law presumes unseaworthiness. The plaintiffs, having completely failed to prove that the vessel was then seaworthy, (although she might have been so six months previous) the legal presumption of unseaworthiness holds good.
    No legal appreciation can be made of the statements of witnesses, who, speaking of her at the time of the catastrophe, called the Fanny Fisk the favorite and popular packet of the Matamoras trade, and believe her to have been as good as any other steamer plying in those waters. It takes an acute mathematician to ascertain the relation between two unknown numbers, and the jurist who will establish the seaworthiness of one vessel by comparison with others, whose seaworthiness is itself a problem, will have a delicate operation to perform.
    One witness was proud of the Fanny Fisk, after seeing her ride successfully two hurricanes on sea, and coming out of these trials stauncher than before! As an employe on board, he had a fellow-feeling for her.
   Howell, J.

These suits, consolidated, are brought to recover of the defendants respectively the amounts of two policies of insurance effected in March, 1865, on the steamer Fanny Fisk, which was lost by sinking in the Rio Grande on the 3d July, 1865. The defence is, that the vessel was unseaworthy during the term of the policy, and was not lost by any of the perils insured against.

Judgments were. rendered in favor of plaintiffs, and defendants have appealed.

It is shown that the vessel was in good condition, seaworthy, and well officered and provisioned, at the date of the policies, and so continued until the morning of the 3d day of July, when about one or two o’clock a firewas discovered in a room on the main-deck, where oils, carpenter’s tools, etc., were stored; that in the course of an hour the fire was with great exertions extinguished, and that about an hour or an hour- and. a half thereafter the boat suddenly sank — those on board barely having time to escape. The description given by the witnesses of the fire, and its effects, satisfies us that the loss was the direct consequence of the fire, and, therefore, the principle of law invoked by the defendants, that no specific cause being shown for the disaster, the -presumption is, that at the time of the loss the vessel was unseaworthy, is not applicable. Under the evidence, no other cause can be assigned for the sinking than the damage caused by the fire.

We therefore conclude that the loss was the result of perils insured against.

Judgment affirmed, with costs.

Rehearing refused.  