
    Robert C. Wright et al., Plaintiffs and Respondents, v. The Orient Mutual Insurance Company, Defendants and Appellants.
    1. Where a ship, soon, after sailing on her voyage, becomes so leaky or disabled as to be incapable of proceeding upon it, and this cannot be ascribed to any violent storm or extraordinary peril of the seas, the fair and natural presumption is that it arose from causes existing at the time she sailed, and that she was then unseaworthy.
    2. A verdict in favor of the assured, found upon evidence raising this presumption of unseaworthiness, will be set aside as contrary to the evidence.
    (Before Bosworth, Ch. J., and Robertson, J.)
    Heard, February 13th;
    decided, March 10th, 1860.
    Appeal by the defendants from an order denying a motion made by them for a new trial. The action was tried before Mr. Justice Pierrepont and a jury, on the 8th of June, 1859.
    
      The defendants insured the plaintiffs on one-third of their interest in a cargo of coffee from Rio de Janeiro to Charleston, in the barque Susan.
    The ship sailed from Rio October 10th, 1855, and shortly after leaving port met with stress of weather, sprung a leak, and put back to Rio. The cargo was discharged, the vessel was surveyed, and, pursuant to the recommendation of the surveyors, was sold. The coffee was stored at Rio, and reshipped in the brig Julia for Charleston, and arrived there January 8th, 1856. This action was brought to recover the defendants’ proportion of the general average charges and expenses consequent upon the return of the Susan to Rio in distress, and the transhipment of the cargo, and the increased freight thereon, &c. The plaintiffs obtained a verdict. The only question presented by this appeal is, whether the Susan was seaworthy when she sailed from Rio.
    The Captain of the vessel testified thus: The barque Susan “ sailed from Rio on the 10th of October, 1855; * * the steamboat towed me to sea, not far from 7 o’clock in the morning; * * when the steamer left us, we made all sail to the southward, off shore by the wind; there was a heavy swell heaving in from the southward; the ship behaved well when we made sail; the wind was light under the land; as we drawed off shore, the wind increased suddenly on us with a sea; the sea increasing at the same time, it caused her to labor heavily and jump into the sea; we took in sail and reduced the canvass as we got off shore; after the barque labored in this way and jumped into the sea, we tried the pumps and found the barque making water; after we tried the pumps, we did not succeed in freeing the vessel; then we sounded the pumps, and found two feet of water in the hold; we then continued to shorten sail; kept serving the pumps; the leak remained about the same after shortening sail; we had taken everything off her but two topsails, and then we freed her; we wore ship and stood in shore, after the men refused to go any further off shore; * * I concluded to return to Rio, as the nearest port I could get to; * *• I was from twenty-five to thirty miles from the coast when I determined to put back; the steam-tug took me about four miles outside the harbor; * * before I turned to go back, it blew a strong double-reefed topsail breeze.” At 9, A. M., of the 10th of October the steam-tug was discharged, and the barque proceeded to sea; at 1, p. M., she was put back for the port of Rio.
    This is the substance of all the evidence given as to the fact of the barque’s encountering perils of the sea, and the nature and extent of such perils.
    A motion to dismiss the complaint, on the ground that the vessel was unseaworthy when she sailed from Rio, was denied; and the defendants excepted. The Judge, (inter alia,) charged the jury as follows:
    “In this case, gentlemen, the evidence is clear and uncontradicted, that this vessel laden with a valuable cargo of coffee, left the port of Rio, between nine and ten o’clock in the morning of the 10th of October, and that in a few hours after she was left by the steamer that took her out, she encountered some heavy seas, but no storm; she met with no accident, she ran into no vessel, none into her, and she touched her bottom nowhere; but in the course of these few hours when she came into the heavy sea she began to pitch, and a sudden wind springing up, (not a storm,) she sprung a leak. That very soon after, she turned about and made for the port she had left a few hours previously. All this occurred in the space of some four or five hours from the time she left Rio. It is then quite clear, that on the 10th of October, in the afternoon of the day she left port, when she put back, she was unseaworthy, and that brings the case into a very narrow compass. Was she seaworthy at nine o’clock when she left' port ? And, in considering whether she was seaworthy at the time she left port, you will consider the length of time she was out, and the accident that befell her; it being perfectly plain that when she got back she was unseaworthy, and the coffee was transhipped to another vessel..
    “At one o’clock it is conceded on all hands, that she was unseaworthy, and if so—if she was seaworthy at nine o’clock in the morning, she became unseaworthy between the hours of nine and one. She having left the port in smooth water and fair weather, at nine o’clock in the morning, it is for you to determine in your own minds from the evidence before you, whether the peril which she encountered was such as is known as a peril of the sea, which caused her such damage as rendered her unseaworthy, of whether beforeshe left she -was in. such a condition that she was unfit for such a voyage, and therefore unseaworthy. If when she left the port she was unfit to perform the voyage which she undertook to perform, and was unseaworthy, it is not a matter of the slightest consequence how faithful the captain was, how ignorant of her condition,, or how concealed the condition of the vessel was at the time he left port. It is not the business of the Insurance Company in any such case to determine whether the vessel is seaworthy or hot.' It is the business of the captain when he commands the vessel, to determine that question, and if through negligence or from the fact that she was eaten by worms, or from any other .cause she was in fact unseaworthy, it is a matter, of no manner of consequence whether the captain knew it or not. If she was unseaworthy, and the captain supposed her a seaworthy vessel, still she was just as much unseaworthy as though ■ he had known it. In fact if she was an unseaworthy vessel at the time she' left this port, it'.ends this case, and the defendants are entitled to your verdict. •
    “ They have not on either side given you the smallest light as to what was the- matter with her. They all admit she leaked; at one o’clock was unseaworthy and could not proceed on the voyage; and after all this thorough overhauling, examination and condemnation, they have not told us' where the leak was — what caused the leak, nor how it was finally stopped, or how she was repaired as far as related to her leak. Therefore, it is left for you to find out if you can, from the evidence that is given in this case, and determine in your own minds if she was seaworthy when she left port, and if so, what it was that made her unseaworthy at one'o’clock; whether in fact she did become so, by any action or perils of the sea, which were more than common ordinary perils of the sea. The ordinary winds of the sea are not perils against which the policy provides. It don’t provide for a vessel that starts upon her voyage and encounters no storm or no gale;° meets with no accident by touching her bottom, or by collision, but is only exposed to the ordinary waves of the sea and becomes unseaworthy. If the vessel is in an unseaworthy condition when she leaves port, she is not guaranteed by the insuree to pass safely the ordinary waves of the sea. And if it turns out that the vessel was injured when she encountered only the ordinary waves of the sea, it would be conclusive evidence that she was not then in a seaworthy condition.”
    The jury in answer to a question specially submitted, found that the barque was seaworthy when she left Rio, at nine o’clock in the morning of the 10th of October, 1855, and rendered a general verdict in favor of the plaintiffs.
    
      Alexander Hamilton, Jr., for appellants.
    I. The evidence as to the prominent facts, as stated by the Court in the charge to the jury, “is clear and uncontradicted.”
    This evidence, indeed, comes from the protest, and the testimony of the captain of the barque:
    At nine o’clock on the morning of October 10th, 1855, this barque left Rio, bound for Charleston, South Carolina, with a cargo of coffee, valued at about $64,000.
    She met a heavy swell, and as soon as she jumped into the sea, she was found to leak. At 12 M., it was found the barque was making much water. At one o’clock, there being two feet of water in the hold, the crew refused to go any further, and the barque put back to Rio.
    II. The implied warranty on the part of the assured was that at nine in the morning this vessel was seaworthy; able to resist the ordinary waves and winds of the sea on the voyage of several thousand miles o.n which she had entered.
    So soon as she begins to labor in the swell, she begins to leak; and though the sail is shortened, and the pumps are worked, the vessel is not freed from water; and at one o’clock, four hours after starting, the vessel puts back to port.
    III. This uncontradicted state of facts, presented by the assured, establishes, conclusively, the unseaworthiness of the vessel at one o’clock, or before it; and is strong prima fade evidence that she was unseaworthy at nine—four hours previously— as she had encountered nothing more than the ordinary winds and waves, which she was warranted, at nine o’clock, as able to. meet and resist.
    IV. The prima fade evidence is not met or rebutted in any way by the plaintiffs; although the facts upon which it rested came from their own agents, and being within their knowledge, called upon them for more than mere formal proof of seaworthiness at the outset of the voyage.
    The only direct evidence as to the barque’s condition before sailing, is the captain’s statement: “ When we pumped her, we would get about a bucket-full every twelve hours.”
    This would only prove that she was seaworthy in port, ánd satisfy that part of the policy.
    The assured were under a much higher engagement in regard to this vessel at sea, which she manifestly did not fulfill.
    V. The uncontradicted testimony of the master establishes not only a prima, facie case of unseaworthiness at the outset, but considered carefully, furnishes direct proof of the fact:
    It is to be remembered that at one o’clock—four hours after sailing — the crew had virtually mutinied, and the voyage was abandoned as hopeless, after various efforts by shortening sail, and continued pumping to relieve the vessel.
    The captain states, that as they drew off shore, and came into the sea, the barque labored heavily, and jumped into the sea; after the barque labored it was found she was making water; in other words, so soon as she encountered that ordinary peril of a pitching motion, which she was at that time warranted as able to encounter, she failed in the test.
    Nor was this inability of a temporary character; the leak continued to increase in spite of all efforts to control it, and the crew, in yielding to their alarm, and insisting upon -the return of the vessel at one o’clock, did so, as is shown by the captain, after they had been exerting themselves for some time to correct the evil.
    The evidence of the captain shows, that the barque leaked badly after she returned to port, and even while aground in the mud discharging.
    He also states the extensive repairs required and the long time to make them, which justified a condemnation.
    VI. It seems a palpable contradiction on its face, to say that at nine o’clock the vessel was able to meet the ordinary waves of the sea, when, perhaps, at half-past nine, or so soon as she did meet them, she became leaky and unseaworthy. The learned Judge in his charge to the jury, evidently considered that nothing but ordinary perils were apparent upon the evidence.
    
      VII. In looking over the earlier cases in this State in which the Courts have held that unseaworthiness existed as an inference of law, it is believed none will be found more clear, if as much so, upon the undisputed facts, as this one. (See among others, Talcot v. The Commercial Insurance Company, 2 John., 124; Judge Spencer’s Opinion, id., 128; Warren v. United Insurance Company, 2 John. Cas., 231; Myers v. The Girard Insurance Company, 2 Casey, Penn. State R., 192.)
    VIII. It is submitted with some confidence, that this is a proper case for the exercise of the discretion of the Court, to correct the errors of a jury by granting a new trial.
    
      H. G. De Forest, for respondents.
    I. The seaworthiness of a vessel is in all cases a question of fact, and is peculiarly a question for a jury to pass upon. (1 Arnould on Ins., 689; Foster v. Steele, 3 Bing. N. C., 892; Snethen v. Memphis Ins. Co., 3 La. R., 474; Rugely v. Sun Mut. Ins. Co., 7 id., 279; Patrick v. Hallett, 1 John., 245.)
    II. It appears that the leak was occasioned by stress of weather; that while the vessel was under all sail, the wind increased suddenly with a sea, and the sea increasing at the same time, it caused her to labor heavily and jump into the sea, and during this period the leak commenced.
    Its effect was such that the foremast, main-topsail-yard, and other spars, were sprung, &c.
    One of the head-knees was started, and one sprung.
    The charge of the Judge was sufficiently favorable to the defendants, and was not complained of. The order should be affirmed.
   Robertson, J.

The expenses sought to be recovered in this case, for transhipping and carrying to its destination the cargo which formed the subject of insurance, grew out of - damage to the vessel carrying such cargo on the voyage insured. Such damage appears to have been occasioned by a leak created during the first four hours of such voyage; after which time she returned to port. The answer sets up unseaworthiness in the vessel at the time of her leaving port on such voyage, and denies the loss by perils of the sea insured against, as alleged in the complaint.' On the trial, a motion to dismiss the complaint, on the ground of a-want of seaworthiness and a- failure to prove a loss by. perils insured against, was denied, to which an exception was taken. 5?he question of seaworthiness, as well as loss by proper perils, was. .left to the jury, who found, on a special quéstion to that effect,: that the vessel was seaworthy when she left port.

.. The inadequacy of the perils encountered to produce the sea-damage in question to a seaworthy vessel, was relied upon by the defendants to establish unseaworthiness, to which, they added evidence of age and the character of the materials of which the vessel was built, and of worm-holes in her planking above the copper. The plaintiffs established the thorough repair of the vessel at the port which she left on her previous voyage to the port from which she sailed on the voyage in question ;■ also her sound appearance and tightness before starting;, and claimed from that, with the perils encountered as described by her Captain,. and the damage thereby done to her masts .and spars,' indicating their violence, to have established injury by extraordinary perils, to a seaworthy vessel. It will thus be seen that the degree of. violence of the perils is material to either view, and, in effect, the essential point of the case, as there is no direct evidence of unseaWorthiness. If she was unseaworthy, the leak may be .fully accounted for without extraordinary perils: on the other hand, if the perils were extraordinary, the deduction of unseaworthiness from the facts proved is not necessary-to account for the leak.

From these views it results that the exception to the refusal to dismiss -the complaint covers the same ground as the objection made to the verdict, that it is against the weight of evidence or without evidence; for if the evidence was such, as that the jury might find a verdict therefrom against the defendants, it would be error to set, aside their verdict upon the ground of being without or against evidence, when there is no conflict of testimony,- as to the perils encountered or their result. This brings us to the question whether the evidence offered by the plaintiffs of extraordinary perils, such as those insured against, was enough to go to the j ury upon the question of unseaworthiness as well .as of such perils.

The question of unseaworthiness, which has been sometimes said to be a question of law, was determined in this Court in the case of Sherwood v. Ruggles, (2 Sand. S. C. R., 55,) to be a question of fact; still as a fact, it may require control by the Court of the evidence to sustain it. It has been supposed that the cases in the House of Lords in England, of Watson v. Clark, (1 Dow., 344,) Parker v. Potts, (3 id., 23,) and Douglas v. Scougall, (4 id., 269;) as well as that of Cort and another v. Delaware Insurance Company, (2 Wash. C. C. R., 375,) in a Federal Court, and of Talcot v. Commercial Insurance Company, (2 John., 124, 467,) in our own courts, support the doctrine of seaworthiness being a question of law, although in the last case a verdict by a jury was finally sustained. It is true, that the fact of the Courts undertaking to inquire in those cases into the character of the perils proved, and their determination that they were not sufficient to have injured a seaworthy vessel, may be construed into a decision that seaworthiness is a question of law; but no such principle is declared. It is not claimed in any of them that the Court is to be deemed possessed of sufficient knowledge of nautical matters to instruct a jury in all cases whether the perils proved were within the policy and could produce the damage complained of to a seaworthy vessel, it is only assumed that the Court possess sufficient knowledge to be able to say that the perils proved to have been encountered in some cases were not sufficient to injure a seaworthy vessel; as it is matter of almost common knowledge that even the winds, necessary to carry a vessel on her voyage, which are ordinarily encountered, produce some commotion, and perhaps enough to terrify a landsman, even by description. Lord Eld on, in the case of Watson v. Clark, appeals, I may say, to his own ignorance of nautical matters, for he frankly confesses his want of skill in them when he says that “ he should not he much afraid though he heard seamen talking of ” such perils as were testified to in that case, viz., “ fresh gales and squally weather.” I can see no reason why Courts which are every day called upon to pass upon questions of collision, freight, salvage and marine insurance, may not be presumed to have some knowledge of the nature-of the elements, which are the instruments and subjects of such torts and contracts; particularly when they are merely called upon to intercept immaterial evidence upon its passage to the jury, who being engaged in different occupations, may not have any knowledge of what is or is not an extraordinary disturbance of sea and air, and to whom even the perils testified to in the cases I have cited might seem unduly great.

. It may be contended that it is impossible to draw the boundary line between extraordinary and ordinary perils of the ocean, and the Court cannot so define it as to guide the jury. The same difficulty however exists in many questions arising in litigated cases, such as reasonableness of time or distance, the sufficiency of the reason for not delivering chattels mortgaged or sold, and probability of cause for a complaint before a magistrate; in such cases it is easy to define the extremes which are of one or the other classes, but within them when the cases, come down to doubtful ones, they should be left to the jury. In this division, hfiwever, of perils, there is always a resource in cases in which the Court is doubtful, as experts may be called in to pass upon those proved, to assist the jury in coming to a conclusion. An extreme case will test the principle. Ho one will contend that the fact of a vessel merely going to sea, and having a propelling breeze to drive her on her course, would be evidence to go to the jury, of perils sufficient to cause her to spring a leak, if so the degree of violence of the wind at which such evidence may be allowed to go to a jury, must be regulated by the Court.

The perils relied upon in this case are clearly described. The leak and its commencement during such perils, are clearly given. Other injuries to the mast, spars and rigging, discovered after the return of the vessel into port, are all in evidence and before us, and there is no conflict of testimony in regard to them. So that there is no difficulty in determining whether the facts thus proved could establish perils insured against, encountered by a seaworthy vessel in this case.

The vessel in this case returned into port, after going about twenty-five to thirty miles to sea, during four hours, and arrived in port three days after she sailed; the character of the weather and her action on her return are not given. She started under full sail, while a heavy swell was heaving in from the southward, '“ but the wind increased suddenly, and the sea increasing at the same time, caused her to labor and jump into the sea ”; this apparently immediately followed the increase of wind and waves, but how .long.such “ labor ” .and. “jumping” continued does not appear. After it, the vessel was found to take in water. Sail was then taken in, and the canvas reduced, until only two topsails remained; but when, during what time or why, does not appear. A leak then began; when, does not appear, but which remained about the same after shortening sail; the place of that leak was never found, notwithstanding three surveys, after her return. There is a singular want of definiteness, minuteness and particularity, in the description by her captain, the only witness examined as to the perils, of what occurred during the four hours before the vessel changed her course back. Ho account is given when or how her masts were sprung, or to what extent shé labored or jumped. The wind is described as being merely a strong, double-reefed topsail breeze,” not a gale or a storm; the very fact of calling it a breeze, and giving it a special character, goes to show that it was one of not an uncommon kind; and that it was one which was taken advantage of, although with diminished canvas. All the cases I have cited show greater perils than these, and no one can doubt that the ocean has been traversed, myriads of times, in perfect safety with such a breeze; and few seamen would hesitate to encounter a similar one on every voyage. But it may be said, the springing of the foremast maintopsail-yard and maintopmast-fid, stranding of top-gallant-backstays and loss of tressle-trees, with the starting of a head-knee, prove the violence of the wind, which would be true, if they occurred before her changing her course towards the port of departure, and before the leak, which was as violent at the beginning as at the end of the blow. We have no information as to the state of the weather on her return to port. Such injuries might have been the result of having old timber, spars or rigging, the rusting of bolts or fastenings, or a heavily-laden vessel, with a leak, at the rate of twelve inches an hour, pitching and rolling .in the trough of the sea. The leak is the turning point in the history of the vessel; if the violence of the winds and waves was sufficient to have created it in a seaworthy vessel, the plaintiffs are entitled to recover; but there is no evidence to prove it. I do not think, therefore, it is any stretch of the prerogative of the Court to assume to know enough of nautical matters to hold that such a leak could not be created, by such a breeze, in a seaworthy vessel, and that there was no evidence of such perils as were insured against.

The judgment, therefore, must be reversed, with costs; leaving the defendant the right to a new trial.

Bosworth, Ch. J.

I understand the rule to be as stated in Arnould, (vol., l,p. 686, §255,) that where a ship becomes so leaky or disabled as to be unable to proceed on her voyage, soon after sailing on it, and this cannot be ascribed to any violent storm, or extraordinary peril of the seas, the fair and natural presumption is, that it arose from causes existing before her setting out on her voyage, and consequently that she was not seaworthy when she sailed.

In this case no violent storm or extraordinary peril was shown.

The jury found specially that the vessel was seaworthy for her proposed voyage, when she left Bio, at 9 o’clock in the morning.” This was so found, contrary to the evidence and to the conclusion which the law draws from it.

As I read the charge, I infer that the Judge, before whom the action was tried, had a very clear opinion that the defendants were entitled to a verdict; and that any one hearing the charge could not fail to discover that such was his opinion.

In this view the verdict is against evidence, contrary to law and the charge of the Court. It should be set aside, and a new trial granted, with costs to abide the event.

Ordered accordingly.  