
    B. M. Mumford and G. S. Mumford against Smith.
    If the facts given in evidence manifestly show a want of seaworthiness, and a jury find against them, the court will set aside the verdict, notwithstanding the jury, at the time of giving it in, declare they have rested their decision upon the whole matter in evidence.
    This was an action on a policy of assurance on the cargo of the Sloop Mary, consisting of flour and corn, valued at 6,720 dollars, of which 3,220 dollars were underwritten by the defendant, at a premium of 9 per cent, from New York to Kingston, in the island of Jamaica. The claim was for a total loss by by the perils of the sea.
    On the trial, which was before Mr. Justice Radcliff.¡ on the 23d of November, 1803, at the sittings in New York, it appeared from the evidence, that the following were the circumstances of the case:
    The Mary was constructed in 1795, of oak of the best Quality, and faithfully built in every particular. When off the stocks, she was first employed as a packet between New London and New York. After this, she made several voyages to the southward and the West Indies. In 1798 she was raised, not on account of any decay, but to render her more burdensome. At this time she appeared stout and strong. New top timbers were put in. Some of her beams, and other pieces of her timbers were of good chesnut. Her plank all of white oak, except her decks. In 1800 she was graved and caulked. She then appeared sound, strong and tight; so much so, in the opinion of one witness, that he offered for her 2,000 dollars. She sailed on the voyage insured, but was leaky from the time of leaving Sandy Hook. On the 11th of August, 1800, she met with heavy gales and severe weather, in consequence of which she suffered much injury and was rendered very leaky, making so much water that it was with difficulty she could be kept free. This compelled her to bear [*521] *away to the nearest port to refit, and on the 15th of the same month she put into Hamilton, in the island of Bermuda. After unloading the cargo a survey was had upon her. She was bored by the surveyors in several places, and adjudged seaworthy; they even declared they had scarcely ever examined a tighter or stauncher vessel. Upon a report being made to this effect, her repairs were commenced. In the course of their prosecution one of the caulkers struck his iron into a plank on the starboard quarter and found it so rotten as to be unable to hold oakum. This induced a further examination round that spot, when four or five other timbers were discovered to be considerably decayed. Two others also, on the larboard quarter, appeared somewhat unsound. But those amidships, on both sides, were perfectly good. On this the captain procured a second survey to be held, when the same surveyors, after investigating her quarters, immediately pronounced her unfit for sea, observing that her starboard quarter alone was sufficient to condemn her. No other parts, except her quarters, were examined; and, according to the mate’s testimony, (on -which, as to the situation of the vessel in Bermuda, the preceding facts were disclosed,) she might have been refitted without much expense. He added, that he would have been willing, after very little repairs, to have sailed in her to any part of the world. In sails, &c. she was well found.
    The survey itself, dated the 2d of September, 1800, stated that a plank being taken off on both sides of the sloop’s waist, not one top timber was sound; on the contrary, they were generally rotten that she could not have been made fit for sea, without renewing the whole of her sides, above the wales; that this would have been attended with a very heavy expense, and perhaps as much as she would sell for when done; that the other parts of her. hull appeared sound. Nor was there any fault in her masts or spars; yet her sails and rigging were indifferent; having been much worn.
    The surveyors, who were admitted to be men of character, when examined under a commission issued . . for that purpose, ^confirmed the facts contained in [*522] the report, and they were further corroborated by ' -the agent of the vessel.
    . It was acknowledged that the Mary, previous to her sailing, had, in March, 1800, been hove down tq get at her keel, but her upper works were not then examined, nor were her timbers bored. At that time one witness had offered 2,000 dollars for her, considering her staunch and tight. After the survey she sold for only 34 pounds 10 shillings, and was purchased by one. of the surveyors, who however, never put her into service, but broke her up as not worth repairing. ‘ .
    It appeared that in 1800 there was but little intercourse between Bermuda and Kingston. During the summer of that year, no neutral vessel could, .have been procured tq go from thence to Jamaica. British bottoms might-have been had at an enormous freight, and insurance was also immensely high." Workmen, too, were difficult to be obtained.
    It. was admitted the cargo did not sustain a damage amounting to an average, the injury being less than-5 per cent.
    On the trial the counsel for the defendant insisted the plaintiff was not entitled to recover for these reasons:
    1st. That the vessel was not seaworthy.
    2d. That if seaworthy and reparable at less than half her value, she ought to have been repaired, and have prosecuted her voyage.
    3d. That if irreparable, another vessel should have been procured,, and the cargo taken to thé port • of destination;
    
      4th. That the damage was less than an average.
    The judge charged, that if the witnesses examined at Bermuda, and the witnesses examined on the part of the defendant in New York, were to be believed, (and their characters were admitted to be respectable,) the verdict should be for the plaintiffs for the premium only, on account of the unseaworthiness of the vessel. That if the damage sustained by the vessel, during the voyage, was repairable at less than half her value, the master should have repaired her, and proceeded to Kingston with the cargo, and on this ground the verdict should be for the defendant, there being no average.
    That, upon the first point, the weight of evi[*523] dence was *with the defendant, if the testimony taken under the commission and here on his part, was to be credited. That on the second point, he was strongly inclined to think the evidence in favor of the defendant.
    Upon this the jury found a verdict for the plaintiffs for' a total loss, and gave the following reasons:
    1st. That they considered the vessel seaworthy.
    2d. That it would have cost more than half the value of the vessel to have repaird her at Bermuda, taking into view her whole condition; but as to the quantum, of injury sustained by the perils of the sea separately, they give no opinion, resting their verdict upon the whole matter.
    These explanations making, by agreement, a part of the case, a motion was made to set aside the verdict, as contrary to evidence.
    The same points, made by the defendant at the time of trial, were now again insisted on; but as the decision of the court went totally on the weight of evidence as to seaworthiness, it is unnecessary to do more than state the decision itself, which was delivered by
   Livingston, J.

It is conceded that the right to recover cannot exist, unless the vessel, at the time of sailing on the voyage insured, was seaworthy; that her not being so will affect as well an innocent shipper of goods as the owner of the vessel. This is certainly so, and however hard the law may bear on persons of this description, the underwriter is entitled to the full benefit of it, and ought not to be held to payment when this implied warranty has been violated. Whether such" has been the case is principally a question of fact, and we would not willingly disturb a verdict given against an assurer of goods on a defence of this kind, where there had been a contrariety of testimony, or where the proofs were nearly in equilibria; perhaps not, unless their decision was most manifestly against the whole bf the evidence: such we think is the case here. No one who reads the testimony can hesitate in saying that the breaking up of this voyage was not occasioned by any one of the perils insured against. The Mary must, then, either not have been seaworthy when she left NTew-York, or so far decayed as to require ^repairs at an inter- [*524] mediate stage of the voyage, which it was either impracticable to give her, or which would have cost more than she would, when repaired, have sold for. In either ease the defendants are not liable. The mate does not state .particularly what injury she received from the gales she encountered, except that of making more water, for she leaked when she left the Hook; this induced the master to bear away. On her arrival at Bermuda, she is thoroughly examined and found to be in a most decayed state. This rottenness in her timbers, it is certain, could not have taken place in so short a voyage, but must have existed when she left New-York. If we give no credit to surveys(a) of this kind, which, besides being ex parte, are too easily, and sometimes fraudulently, procured, we must believe the surveyors when examined under our own commission. They bear the character of respectable men, and the abandoned state of the vessel after her condemnation and purchase, is a great proof that they acted with integrity and good faith. Nothing to the contrary should be inferred from one of them becoming a purchaser. This he could not foresee would be the case in a sale at auction, and at any rate it does not appear that he made much by the bargain. The agent is also a strong witness on the same side. To all this nothing is opposed but an opinion of the mate, that she might have been repaired, and proof that the Mary was well built, and once a strong vessel. A carpenter repaired her previous to her sailing on her last voyage, but did not examine her upper works, or bore her timbers. Now all this may be true, and yet it does not, in any degree, derogate from the credit due to the witness^ who last examined her; who were in a situation to form a correct opinion, and who pursued the best and only means of coming at an accurate conclusion. It must always be difficult •te determine, with certainty, what portion of the injury is occasioned by latent defects, and what by perils of the sea ; but here it is sufficient to say, that the injuries which required repairing at Bermuda, and produced a termination of the voyage there, could not have arisen from any accident insured against, because it is expressly stated, by the witnesses, that these repairs were rendered neces[*525] sary by' the imperfect condition *of the timbers; not by her leaky condition, which was the only effect of the weather she met with. If no further defect had been discovered but a leak, this could have been repaired, and the vessel would soon have pursued her route. Our opinion is, that this is a verdict palpably against evidence, which established, beyond doubt, the innavigability " of the vessel, and that a new trial must, therefore, be had, on the payment of costs by the defendant. It is ol course unnecessary to decide the other point made in thi* cause,

New trial. 
      
       See ante, p. 25, note (a).
      
     
      
      
         As they are, in general, mere reports of the state of the vessel, not given under the solemnity of an oath, and «8 parts, Lord Kenyon ruled they were not evidence of any thing but the fact of condemnation; Wright v. Barnard, 2 Esp. Rep. 700, and in The Mar. Ins. Co. v. Wilson, 3 Cranch, 187”, their conclusiveness on the state of the vessel seems doubted.
     
      
       See Dow v. Smith, ante, 34.
     