
    Talcot against The Commercial Insurance Company of New-York.
    This was an action on a policy of insurance, on the cargo of the brig Hunter, on a voyage at and from Middletown, in Connecticut, to Martinique, and at and from thence to New-York, with liberty to touch at two other ports in the West-Indies, against sea-risks only — cargo out and proceeds home valued at 1,600 dollars.
    The cause was tried at the sittings in New- Yorlc, on the 5th June, 1806, before Mr. Justice Thompson ; and the only question was as to the seaworthiness of the vessel.
    The Hunter sailed from Neio-Haven, in the state of Connecticut, in the month of November, 1804, and on the 16th November arrived at Hctddam, in Connecticut river, about seven miles below Middletown, where a cargo, consisting of staves, hoops and shooks, was taken on board for Martinique. The cargo belonged to a Mr. Gilbert, and after it was laden on board, the vessel was cleared out, at Middletown, which is the port of entry for Iladdam, and the other places situate on Connecticut river. On the first clay of December, the Hunter set sail from Had-dam, and passed the bar at the mouth of the river on the 4th December, with'a light wind, and in the evening, being off New-London, when the tide proving unfavoura^je^ an(j anch01.age ground not good, the master went into New-London, and anchored for the night. The next- morning, the 5th December, the Hunter set sail with a good breeze at N. W. and a considerable sea running, and continued her voyage until 10 o’clock the same evening, when it was discovered that she had sprung aleak ; the pumps were set to work, and all hands engaged in freeing her from water, when after an hour, the leak so much increased, that it was thought prudent to change the course of the vessel, and make towards the land. They accordingly stood in for the land, and continued pumping until 1 o’clock the next morning, when they found the leak increasing, and five feet water in the hold, and about an hour after the vessel filled with water and overset. The crew took to the boat, but having-made little progress, in the morning they returned to the wreck, where they continued until the afternoon of the next day, when they were taken off by another vessel, and carried into Newport. The brig was between 8 and 9 years old, and the master had sailed in her eight voyages before. She was built at New-Haven, of the best materials, and was considered a very good vessel. Immediately before the commencement of the voyage insured, she was graved and caulked at Netv-Haven, and underwent all the repairs that were thought requisite, and in the opinion of the master, was tight, staunch and strong, and in every respect well fitted for the voyage. When the vessel sailed from New-London, on the morning of the 5th December, “the wind was from the north-west, and very moderate, and by 2 o’clock in the afternoon blew a breeze, and continued to increase until the leak was discovered.” They carried topsails and other sails without reefs, until sunset, when they took a single reef in the mainsail and foretopsail. At thc time the leak was discovered there was a pretty heavy sea, as the wind had been blowing to the southward. The master did not consider the wind as blowing very hard when the leak was discovered. The cause of the leak could not be discovered. It did not, appear that the vessel had struck ground, or met with any accident that, could oc" casion the leak. The master believed her fit for sea when she left Connecticut river, and did not know whether the cause of the leak then existed or not; and in his opinion, the leak did not proceed from any want of soundness, or from rottenness; it might have been occasioned by the starting of a butt or forewooding, in which case, it could not have been well secured when the vessel sailed, and there was not wind enough to start a butt if well secured. The mate, in his deposition, testified, that he thought the vessel defective when she sailed on her voyage ; but on his cross-examination assigned as a reason for this belief, that the vessel had sprung aleak under such circumstances ; and had she been new at the time, his opinion would, for that reason, have been the same.
    
      Where a ves* sel sailed with a fair wind and moderate weather, and in the evening of the same day suddenly sprung aleak, inconsequence of which she foundered, without any apparentcause or extraordinary accident to which the leak could be ascribed, in an action on a policy of insurance, it was held, that the loss was to be presumed' to have arisen from her not being sea-woi*thy at the time she sailed, and thattheinsured were not entitled to recover.
    
      A motion was now made to set aside the verdict, and for a new trial.
    
      Golden, for the defendant.
    Admitting that every vessel is to be presumed seaworthy until the contrary appears, this presumption may be repelled, either by positive proof, or that circumstantial evidence which affords the contrary presumption of unseaworthiness. In the case now before the court, the vessel left port with a fair wind, under full ¡sail, and without meeting with any accident, or any violence of winds and waves, and without any visible or apparent cause whatever, suddenly sprung aleak and foundered. Here, then, is the strongest presumption that can exist in any case, that the vessel was not seaworthy; and to rebut this fair presumption, there should be clear and satisfactory proof on the part of the assured, that she was seaworthy. The opinions of the master and mateare not evidence; but if the leak arose from the starting of a butt, it must have been because it was not well secured: if, at the time of her departnre, from any defect in her construction, she was incapable of performing the voyage, there is a breach of the implied warranty of seaworthiness.
    
    
      P. W. Radcliff and Riggs, contra.
    By the decision of this court, in the case of Patríele v. Mallet & Bovine, it was thought, that the unfortunate topic of seaworthiness, which had given rise to so much uncertainty and litigation, was finally put at rest. It was decided in that case, that the sudden springing of a leak was a peril within the policy, and was not, of itself, evidence of unseaworthiness. The defendants, however, rest solely on that fact, without producing any evidence on the'ir part to rebut the presumption of seaworthiness, afforded by the evidence of the plaintiff. All the evidence shows, that the vessel was tight, staunch, and strong, when she sailed, and fully competent to perform the voyage. The accident of a sudden leak may happen to the best vessel, and on her first voyage. After all, it is a mere question of fact for the jury to decide from all the circumstances adduced in evidence before them. If this case be compared with that of Patrick v. Hallett &r Bourne, there will be found no material difference, and on the principle of that decision the plaintiff must be entitled to judgment.
    
      Golden, in reply.
    The opinion of Mr. Justice Livingston, in the case of Patrick v. Hallett & Bourne, in which the majority of the court concurred, must be understood in reference to the facts of that case, in which there was a demurrer to evidence, and the court were bound to infer every thing which the jury might have inferred from the evidence before them.
    
      
      
         Marshall, 368.
    
    
      
       Vol.l. p. 241.
    
    
      
       1 Caines, 217. Barnviell v. Church.
      
    
   Spencer, J.

delivered the opinion of the court. A motion has been made in this case for a new trial, on the ground that it is a verdict against evidence. The only question presented is, whether the vessel was seaworthy at the time of the insurance, or, in other \vords,*whether she was “ tight; staunch and strong.”

The charge of the judge who tried this cause is not detailed ; of course we are to presume, that it was unexceptionable, and- that he submitted the broad question of seaworthiness to the jury as a matter of fact for them t.o decide. The question now presented is not free from, difficulties, notwithstanding the case of Patrick v. Hallett & Bowne, on which the plaintiff’s counsel have relied as-decisively in their favour. It is an undeniable proposition that in every insurance there is an implied warranty on the part of the insured, that the. vessel is not only free from defects, as wéll latent as others, but that she is competent to perform the voyage, and to encounter the 'ordinary perils of the sea. The insurer is only liable for losses arising from the extraordinary and unforeseen perils of the voyage.

There are three leading circumstances in the case of Patrick v. Hallett & Bowne, which distinguish that case from this : The first is, that there a demurrer to evidence was interposed ; and Mr. Justice -Livingston, in giving the opinion of the majority of the court, lays stress on that circumstance, in saying “ if there was any evidence from which a jury might have drawn the conclusion of seaworthiness, it is admitted by the demurrer.” The second arises from the difference of age between the two vessels, The Peggy was but two years old when she was lost., and built of' the most durable materials, whilst the present vessel was between eight and nine years old 5 and certainly, the presumption of latent defects from decay, is much stronger .in this case than in the other. The third essential distinction arises from the fact that the Peggy was shown not only to be tight, strong, and staunch, when she sailed on the voyage, but to have been admitted to be so on the record by the assurers, three months before her loss. There being snch a material difference in the circumstances between the case relied on and this, that I feel myself at liberty to inquire, whether the loss of this vessel did not proceed from latent defects, and not from any extraordinary and unforeseen perils of the sea. It has been urged by the plaintiff’s counsel, thet every vessel insured is prima facie to be deemed sea-worthy. . This argument has in all probability had great influence on the jury. I remember it to have been strongly insisted on, upon a former trial in this cause, in which the jury could not agree and were discharged. This presumption is founded on the benignity of the law, which will not'presume a party to have violated his implied stipulation ; but when a state of facts are presented from which a conclusion is to be deduced, in my opinion, this presumption of sea-worthiness deserves no consideration. For when,” says Marshall, the ship becomes innavigable, or incapable of proceeding on the voyage insured, all the writers agree, that the presumption shall be, that this proceeded from the age and rottenness or other defect of the ship, unless it be made to appear to have been occasioned by sea-damage, or some unforseen accident.”

From the peculiar circumstances of Patrick v. Hallett and Bowne, I think the presumption mentioned by Marshall was countervailed ; in the present case it appears to me not to be repelled ; for though the jury have found this vessel sea-worthy, I think there was no legal evidence of the fact ; and the conclusion on iny mind is irresistible, “ that she died a natural death.” The case of the Amy and Letitia is very much like the present; that vessel, after being out one day, without any bad weather, became very leaky, and was obliged to run for a port; and it was admitted on all sides, that it was a case of unseaworthiness. Lord Mansfield nonsuited the plaintiff, and- it was acquiesced in.

In the present case, there is no adequate cause shown to produce the injury which led to the loss, arising from extraordinary and unforseen perils ; there is not a fact counteracting the presumption of the innavigability of the vessel from internal defects, probably produced by the pressure of the caigo and the action of the seas, but without,the concurrence of any other than ordinary accidents.

Without encroaching on any rule laid down in regard to new trials, it seems to me, that to grant one in this caséis essential to the administration of justice, and to the maintenance of the most salutary principle, that assurers take upon themselves the risk, upon the possibility of gaining the premium ; when, in this case, from the vessel’s being incapable of performing the. voyage, there was no possibility of gaining the premium : the consideration failing, the obligation ceases.

We are of opinion that there had ought to be a new trial on payment of costs', New trial granted. 
      
      
        Marshall, 365.
      
     
      
       Where a vessel becomes leaky and unfit for sea, the day after she sails, without any violent storm, it raises, a stroifg presumption that she was not seaworthy when she sailed. Wallace v. Depaw, % Bay, 503. A cargo was ensured at and from North Carolina to New-York, held that if the vessel was sea-worthy when she passed the boundary line of North Carolina, this was sufficient; and her unseaworthiness previous to that point of time, would be no defence in an action against the underwriters for loss.—Treadwell v. The Union Ins. Co. 6 Cow. 290.
     
      
      
         Marshall, 369.
     