
    CONSTITUTIONAL COURT,
    CHARLESTON,
    MAY, 1803.
    Wallace & Co. v. De Pau & Kern. Same v. Hamilton & Tunno.
    Where a vessel, the day after her departure from port, springs a leak, which so increases as to render it necessary to abandon the voyage, without having encountered any gale, or sustained any damage from the dangers of the sea, she must be presumed to have been unseaworthy at the time she sailed; and the insurers are discharged. 2 Bay, 503, S. C.
    Motion for a new trial, on policies of insurance; Both actions were of the same nature, one upon the freight of the schooner Thomas, the other upon the cargo, at a premium of 12 1-2 per cent. Cargo valued at $1544, insured at $1400; freight insured .at $900. Voyage from Savannah, in Georgia, to Savannah la Mar, in Jamaica. Policies dated 19th April, 1799, The schoon•er, soon after she sailed, on the 27th April, 1799, sprang aleak at sea, in consequence oí which she bore away forNassau, New Providence, where she was libelled, and condemned as unseaworthy. The protest made by the captain, two seamen, and the mate, was produced in evidence. This staled, that the leak sprung the day after the vessel sailed ; and increased to such a degree, that a council was held on board, to consult what was best to be done, when it was concluded to make for Nassau. At this time they encountered heavy gales of wind. They arrived at Nassau on the 8th of May, with two feet water in the hold. The cargo sold for $1290 ; some articles were swept off the deck in the stormy weather. It was proved, that a vessel staunch and sound, will sometimes spring a leak; it was also proved, that the captain had absconded with the proceeds of the sale. The captain got persons to examine the vessel at Nassau, who reported her to be unseaworthy. The defence set up was, that the vessel was not seaworthy at the time of the contract of insurance, and that the contract was therefore void. The plaintiffs produced no evidence to prove the condition of the vessel before she sailed. It was contended for the defendants, that the extraordinary circumstance of springing a leak the day after going out of port, and the leak increasing several days, so as to oblige the vessel to bear away out of her course, without any Stress of weather to strain her ; and her being condemned in the vice admiralty court at Jamaica, as not seaworthy, altogether furnished the strongest presumptive evidence, that the nature of the case admitted of, to prove the vessel not seaworthy at the time she set out on her voyage : and that the captain withholding the proceeds of the sale, was not evidence of barratry, or such an evidence of fraud as could affect the insurers. And that if it was barratry, it could not affect the question of sea worthiness ; for if the vessel was not seaworthy at the time of the contract, the insurance is void, whether the captain commit barratry or not. The verdict was for the plaintiffs.
    I11 support of the argument for a new trial, the following doc. trine was laid down ; The insured warrants the vessel insured to be tight and staunch ; and the insurers are not bound to examine the vessel, to see whether she is so. The law implies a warranty on (he part of the insured, that the vessel is competent to perform ths destined voyage. If this warranty is falsified, the underwriters are discharged. Park. 383, 200, 398. And there is no difference whether the insurance is on the goods, or the freight. Ib. 220. If the incompetency is unknown, yet it makes no difference i Doug. 632, 2 Marsh. 364, 309 ; as where the inability proceeds from latent defects; Ib. 1 Bur. 399 ; which amounts to legal fraud. Seaworthiness is a question of law. 2 Marsh. 369. No representation necessary, where covered by a warranty. Where a reasonable presumption has been raised, to prove that a vessel was not seaworthy when she sailed, it lies on the other party to rebut such presumption. It lies on the party bound by the implied warranty, to prove the soundness of the vessel. 2 Marsh. 368, 369.
    
      E contra. The question was entirely matter of evidence for the jury ; and although the evidence was all on one side, as to the point of seaworthiness, yet if the jufy did not put so much faith in the evidence, as to conclude against the soundness of the vessel, will the court say they ought to have done otherwise 1 The risk-was considerable ; and the premium was low : and therefore it may be inferred, that the insurers had an eye to the state of the vessel-. In such a case, the law will not imply a warranty of sea worthiness, as where the chauces are equal. 8 T. R. 192, Park. 229. Marshall carries the doctrine too far, by saying the insured must prove seaworthiness. 2 Marsh. 368. The protest was not entitled to credit, as the captain was interested in making the best excuse he could, to cover his own misconduct. The presumption is, that he contemplated a fraud from the first, and bore away to Nassau, in order to execute it: which is a barratry. The vessel might have become unsea worthy by reason of unskilful navigation, or other supervenient causes. Fraud is a question for the jury, and not for the court, to decide. In the case of libels, the courts in England struggled hard for the power to determine what should amount to a libel. The doctrine of Lord Mansfield has been confuted by Junius : and now the question, whether a libel, or not, is always left to the jury. The same reasons apply as to the question of seaworthiness : they apply with the more force, that the evidence is not intrinsic, but extraneous.
   The court

(Bay, Johnson, Trezevant, and Brevard, Justices, in the sbsence of Grimke, J and Waties, J.)

granted a new trial: being of opinion, that the evidence given to prove that the vessel was not seaworthy at the time of her departure from port, immediately after the contract, was of such a nature, as should have indocod tbe jury to. have found against the plaintiffs ; unless some evidence had been brought before them, to remove the very strong presumptions such evidence was calculated to produce. And as no evidence to this effect waspioduced, the court considered that the verdict was contrary to evidence, and ought to be set aside : more especially as the plaintiffs might have examined witnesses in Nassau, who could have given evidence on the point, so as to satisfy the jury more completely respecting the state of the vessel, when she arrived there. The court said, that the question of barratry could not be considered in the case ; since, if the vessel was unsound when she sailed, the barratry of the captain could not relieve the plaintiffs, or restore validity to a contract which was void in the •beginning.

Desaussure and Ward, for defendants. Turnbull and Drast. ton, for plaintiffs.

New trial granted.

Note. If a ship sail upon a voyage, and in a day or two becomes leaky, and founders, without a visible and adequate cause, the presumption is, that she was net seaworthy when she sailed. See Park. 221 in a note.  