
    Snethen v. The Memphis Insurance Company.
    Where in an action on a policy of insurance on merchandize on board of a barge, which was sunk while in tow of a steamer, the evidence shows that the barge was strong and in good condition, and that it was possible that her sinking may have been owing to some unseen and undiscovered peril ot the river, it would be to extend the doctrine of seaworthiness too far, to avoid the policy because the cause of the accident is not specifically ascertained by the evidence.
    The general rule is, thafseaworthiness is presumed; but where a vessel springs a leak soon after the risk commences, without any apparent cause from perils within the policy, a new presumption arises of unseaworthincss; but this latter presumption is not conclusive; it may rebutted by evidence.
    APPEAL from the'Fourth District Court of New Orleans, Straxobridge, J.
    
      Hunter, for the plaintifl,
    cited Patrick v. Hallet, 1 Johns, 241. 2 Phillips, 758. 1 Marshall, 165.
    
      Watts and Spring, for the appellants,
    relied on Marshall on Ins., (1 am. ed ) pp. 156, 363. Phillips onEv., (2 am. ed.) vol. I, p. 324. 3 Johns. Cases.
   The judgment of the court was pronounced by

Slidell, J.

This action is upon a policy on merchandize loaded on a barge, in tow of a steamer. The barge was suddenly discovered to be leaking badly and sinking, on the second day after the departure from St. Louis, on the way to New Orleans. Upon discovering her condition the steamer was-turned towards the shore, and in doing so the barge careened, broke her fastenings, turned over, and sunk. The defence is that the barge was unseaworthy. None of the witnesses undertake to point out a specific cause for the accident, as that the barge struck a 'snag or sand bar, or incurred any other evident casuality. The court below rejected the defence; and gave judgment for the plaintiff. The defendants have appealed.

The evidence to the point of seaworthines at the inception of the voyage, is-extremely full and cogent. It comes not merely from the officers and erew of the steamer, but from other reliable sources, such as the inspectors employed by the St. Louis Insurance Company, one of whom was inspector of hulls un-der the act of Congress. A case could rarely be presented, where the testimony of witnesses to the fact of seaworthiness would be, more complete. On the other hand, the failure to fix the accident upon some specific cause, is a circumstance which has been zealously urged by the defendants’ counsel, as creating a presumption of unseaworthiness, and certainly deserves consideration in determining the question of fact upon which the cause turns.

The witnesses offered by the plaintiff, who were eye-witnesses of the disaster, concur in saying that she could not have sunk 'so rapidly after the discovery of the leak, if some external violence had not occurred. On the. other hand, two witnesses examined by the defendants, and who professed to be experienced in such matters, say, that if a barge in tow of a steamer, conies violently in contact with any obstacle, such as a snag or sand bar, the shock would be felt on board the steamer, and express their surprise that a barge should sink when in tow of a steamboat, from any external cause or shock, without its being felt. One of these witnesses concedes, however, that an external peril might, under some circumstances occur, and sufficient to cause the sinking of a boat, without being observed at. the moment, such as sliding upon a stump in bringing the boat to land, the working out of a water plug, &c., and that he has heard of disasters occurring to boats without any satisfactory reason being assigned; that it is very difficult, in some cases, to ascertain the cause of a barge or steamer’s sinking.

The snags, shoals, logs, and sand bars, give a peculiar danger to the navigation of the Mississippi generally; and the part of the river where the present loss occurred, was not exempt from those sources of danger. After commenting on those peculiar features of the navigation of the Mississippi, the district judge expresses his opinion that the barge was probably injured at a landing where some cargo was taken, on the night before the accident, which occurred at an early hour in the morning, the steamer and barge having laid to all night.

With proof so cogent as was offered to show the youth, strength and good condition of the barge, and wilh a reasonable possibility that some unseen peril of the river, whose effect was not at the moment discovered, may have caused this loss, it would be pushing’the doctrine of seaworthiness too far, to avoid this policy because the cause of the accident is not specifically ascertained by the evidence.

The general rule is, that seaworthinessis presumed. But when avesselspringg a leak soon after the risk commences, without any apparent cause from perils within the policy, then a new presumption arises, and the unseaworthiness wil* be intended. But this latter presumption, however, is not conclusive ; it may be countervailed. Chancellor Kent seems to recognize this, although he dissented from the majority of the court in Patrick v. Hallett and Bowne, 1 Johns. 246, for he cites, with apparent approbation, the opinion of Marshall to the ef" feet, “that where a ship is lost, or incapable of proceeding on her voyage, and this cannot be ascribed to stress of weather or any accident on the voyage, the fair and natural presumption is, that she was not seaworthy, and it is incumbenj. on the insured to show that, at the time of her departure, she was in fact seaworthy.”

In Talbot v. The Commercial Insurance Company, 2 Johnson, 129, the court seems to have narrowed the liberality towards the assured of the doctrine in Patrick v. Hallett; but still the doctrine is distinctly enunciated that, the presumption of unseaworthiness, arising fronfthe springing of a leak soon after the commencement of a voyage, without any apparent cause or extraordinary accident, may be repelled.

In reviewing the easeMf the'Peggy, where_the"liability of the underwriter was maintained by the same court, although the vessel, without stress of weather or apparent cause, became water-logged, and sunk on the second day of her voyage, the court enumerates the prominent facts which were then considered as countervailing the presumption of unseaworthiness; the fact that she was two years old, the durable character of her materials, the testimony .of her being tight, staunch, and strong when she sailed, coupled with the admission of the underwriter that, she was seaworthy three months before. This evidence the court then compared with the facts of the case before it, where the vessel was between eight and nine years old.

After a careful consideration of the testimony, which satisfied the mind of the district judge that the barge Wiis seaworthy at the commencement of the voyage, that accidents proceeding from perils of the river, might occur to produce a leak and eventually a loss, without being at the moment perceived, and that some such peril must have been the operating cause in the present case, we have deemed it to be our duty to affirm the judgment.

Judgment affirmed. 
      
      For the reasons assigned in this opinion, judgment was at the same time affirmed, in a .case between the samo plaintiff and the Tennessee Marine and Fire Insurance Company; the parties having agreed that the judgment in the case against the Memphis Insu.'¿aw Qompany, should lie conclusive of this,
     