
    Charles F. Berwind et al., App’lts, v. The Greenwich Insurance Co., Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 23, 1889.)
    
    1. Insurance—Marine—General policy covering all perils—When WARRANTY IMPLIED.
    In every case of marine insurance, by a general policy covering all perils of the sea, where the vessel insured is in port, there is an implied. warranty that the vessel is seaworthy at the inception of the policy; it is a condition precedent to the risk, and if the vessel is not seaworthy the policy does not attach.
    
      % Same—What constitutes pbima facie case in action fob loss.
    In an action to recover for a loss upon such a policy where the fact of seaworthiness at the time of issuing the policy is shown, it is immaterial what the vessel’s condition is thereafter during the voyage, as loss from unseaworthiness is among the perils insured against, and the plaintiff under such a policy makes out a prima facie case by showing seaworthiness-at the inception of the risk.
    3. Same—Timf, policies—Implied wabbanty—Seawobthiness of vessel.
    In time policies there is an implied warranty that the vessel will be kept in repair and made seaworthy at all times during the continuance of the risk, so far as that is reasonably possible, and this implied covenant imposes upon the insured the duty of active diligence to keep the vessel in good order and in a seaworthy condition.
    ■4. Same—Unseawobthiness—Excepted bisks—Defective condition.
    Where, in an action on a policy, loss from unseaworthiness is among the excepted risks, it is incumbent upon the plaintiff to show that the loss arose from some of the perils covered by the policy, and to make out their case some evidence is necessary from which the jury can infer that the sudden sinking of the boat was not due to defective structure or condition.
    5. Same—What pbesumptiyb evidence of unseawobthiness.
    If it appears that a vessel shortly after sailing becomes leaky and unfit to perform her voyage, and sinks without encountering any peril or storm, it is presumptive evidence of unseaworthiness.
    Appeal from a judgment of the New York superior court, general term, affirming a judgment dismissing the •complaint upon the merits, entered upon the direction of the court at trial term before a jury.
    
      Geo. B. Adams, for app’lts; Wilhelms Mynderse, for resp’t.
    
      
      Affirming 53 N. Y. Sup. Ct. R (31 J. & S.), 102.
    
   Brown, J.

Upon the trial of this action the complaint was dismissed upon the grounds, first, that the proof failed to show the seaworthiness of the vessel at the time of the loss; and, second, that plaintiffs had failed to give to defendant prompt notice of the disaster.

The action was upon a time policy issued by defendant, whereby it insured the plaintiffs upon the canal boat “ Eureka,” for the term of one year, from July 5, 1885. The particular perils insured against were of the “inland lakes, rivers, canals, and fires, excepting perils and losses arising from rotteness, inherent defects and other unseaworthiness.”

The evidence introduced by the plaintiffs showed that the boat was seaworthy at the inception of the policy. It further showed that it was repaired on July twenty-eighth and on August twenty-eighth, and at the latter date was in good order and in a seaworthy condition. That from the last named date, it was employed in transporting coal from South Amboy to New York city, carrying about two hundred and forty tons in a load, and making a round trip between the points named about once a week. That it left •.South Amboy in the evening of October nineteenth, loaded with coal, and about three o’clock on the morning of the following day while being towed by a steam tug near Governor’s Island, in New York bay, suddenly and unaccountably sprung a leak and immediately sank.

It was also proved that it was the captain’s duty to report any defect in, or needed repairs to the boat to the plaintiffs’ superintendent, and that none had been reported, and there . was no proof as to her condition subsequent to August twenty-eighth. The captain was not called as witness, and no explanation was given for his absence from the trial.

In every case of marine insurance by a general policy covering all perils of the sea, where the vessel insured is in port, there is an implied warranty that the vessel is seaworthy at the inception of the policy. It is a condition precedent to the risk, and if the vessel' is not seaworthy, the policy does not attach.

In an action to recover for a loss upon such a policy where the fact of seaworthiness at the time of issuing the policy is shown, it is immaterial what the vessel’s condition is thereafter during the voyage, as loss from unseaworthiness is among the perils insured against.

The plaintiffs’, under such a policy, make out a prima facie case by showing seaworthiness at the inception of the risk. But in time policies there is implied a warranty that' the vessel will be kept in repair and made seaworthy at all times during the continuance of the risk, so far as that is reasonably possible, and this implied covenant imposes upon the insured the duty of active diligence to keep the vessel in good order, and in a seaworthy condition. 2 Parsons on Maritime Law, p. 147, and cases cited in note on page-148, etc.

It is doubtless true that under a general time policy insuring against all perils of the sea, unseaworthiness subsequent to the attaching of the policy is a defense, the burden of proving which is upon the defendant, and that the plaintiffs need offer no proof thereof as a part of their case, but in the policy in suit loss from unseaworthiness is among the-excepted risks, and it was, therefore, incumbent upon the plaintiffs to show that the loss arose from some of the perils-covered by the policy, and to make out their case some evidence was necessary from which the jury could infer that the sudden sinking of the boat was not due to defective structure or condition.

In determining whether the trial court properly disposed of the complaint on this ground, it is not necessary to go to-the extent of the learned general term, and hold that the boat must be shown to be seaworty when lost, but it certainly was necessary for plaintiffs to show that it was seaworthy when it left South Amboy on its last trip to New York. At that point, the boat was without cargo, and full and ample opportunity existed with very slight inspection^ to ascertain whether her hull was tight and capable, with the cargo she was to take on board, to navigate the waters of New York bay The question for the trial court to determine, "therefore, was whether the jury would have been justified, from the evidence before it, in inferring that when the boat left South Amboy it was in a seaworthy condition. We think the evidence did not warrant such a conclusion. There was no evidence of her condition for two months prior to the disaster, and it affirmatively appeared that the boat was old and subjected to heavy strains, and one of the plaintiffs’ witnesses testified that it might be strained in loading or unloading, and one heavy cargo might render it unseaworthy. It appeared that it sprang a leak suddenly and sank in fair weather and smooth water. Under such facts no recovery can be had.

If it appears that the vessel, shortly after sailing, becomes leaky and unfit to perform her voyage, and sinks without ■encountering any peril or storm, this is presumptive evidence of unseaworthiness. 2 Arnold on Ins., 1345; Van Wickle v. Mechanics’ and Traders’ Ins. Co., 97 N. Y., 350; Wright v. Orient Mutual Ins. Co., 6 Bosw., 269.

The plaintiffs might have rebutted this presumption by ■showing the cause of the disaster, or if that was impossible, by showing that the boat was in good condition before it was loaded at South Amboy, but having rested their case without proof of any kind on this point, the court properly held that there was no question for the jury, and that the presumption of unseaworthiness from the sudden sinking of the vessel was conclusive.

Our conclusion upon this branch of the case renders unnecessary any discussion of the question whether the condition of the policy, requiring prompt notice of the dis - aster to be given to the defendant, was complied with.

The case was properly disposed of at the trial, and the judgment should be affirmed, with costs.

All concur.  