
    [Pittsburg,
    Monday, September 10, 1810.]
    Bell against Reed and Beelor.
    If a vessel founders, the carrier must prove that she was seaworthy, before he can bring himself within the excuse of its being the act of God ; but she need only be seaworthy for the trade in which she is employed. That which would constitute seaworthiness for a short voyage upon the lakes, may not be seaworthiness for a voyage upon the ocean.
    If the facts of the loss axe such as that it may fairly be attributed to inevitable accident, and the owner of the goods means to allege that the vessel was not seaworthy at her departure, the onus probandi lies on him, and not on the carrier.
    The man who undertakes to transport goods by water for hire, is bound to provide a vessel sufficient in all respects for the voyage, well manned, and furnished with sails, cordage, anchors, and all necessary furniture. If a loss happens through a defect in any of these respects, the earner must make it good.
    After two verdicts the same way upon the question of seaworthiness, the court will not grant a new trial.
    A carrier’s vessel must be seaworthy, or he must answer, although the loss does not proceed from unseaworthiness.
    
      Appeal from the decision of Brackenridge J. at a Circuit Court for Erie in October 1809.
    It was an action against the defendants as common carriers, to recover the value of the plaintiff’s goods, which they had undertaken to carry in their schooner Good Intent, from Fort Erie, in Upper Canada, to the town of Erie in this state. The vessel sailed with the goods on board in October 1805, upon the voyage in question, which was about a day’s sail; and in a violent gale of wind was lost with all her crew upon the rocks near Point Abino, in Lake Erie.
    The only question in the cause was seaworthiness. It was once tried before the late Judge Smith, when a verdict was found for the defendants, which he set aside. On the present trial, a vast mass of evidence was given, contradictory and irreconcilable; but on the part of the defendants the substance of the evidence was this:
    The schooner was about thirty-six tons burthen, built in 1799 or 1800, of good materials, and in a substantial manner; and she had been occasionally repaired since, particularly in the autumn of 1804, when she was overhauled, some defective timbers taken out, and new pieces put in, and in *the spring of 1805, when she was hove down and caulked, and one or two pieces of plank put in where she had been worn by previously going on shore. Her rigging was also overhauled, and she had a seven and a half or eight inch cable, which had been in use rather more than a year. A vessel built like this, would in the opinion of the witnesses, last in the lake navigation at least six 3'ears. The storm in which she was lost was one of extraordinary violence, having lasted more than two days; whereas the ordinary length of the gales upon Lake Erie, is from twelve to twenty-four hours. It commenced in the evening, and the next morning at sunrise, she was seen at anchor in a very dangerous situation, where she continued to ride, pitching very heavily until late in the afternoon, when she parted her cable, and then got up a part of her mainsail under which she run for a short time, but the gale was too heavy for her, and she finally went on the rocks. Whether the waves broke over her at any time before she went ashore could not be seen. She had more than her usual complement of men on board, although all of them were not expert seamen. Her usual complement was two or three, and upon this trip she had four or five. Several witnesses swore that they should have thought her safe for the ordinary weather of the voyage, in the state she was in at the commencement of it.
    On the other hand the plaintiff’s witnesses swore that she was not built by good workmen. That they examined her but a few days before she sailed upon the voyage, and that she was then in a very bad state. Her hatches were bad, and some asserted that she had no hatches at all, or not pieces sufficient to cover more than half her hatchway. She had no tarpawling to cover her hatches, no cabin doors, but in their place sliders, although this too was negatived by one of the witnesses. The break of the entrance to the cabin was by some said to be about four inches above the main deck, and by others about fourteen. She had been ashore and on the rocks several times; and once in heaving her down to repair her, the strain opened her works so much that she sunk in a short time. Her cable was much worn and chafed. Although eight other vessels were in the same gale with her, and in nearly the same situation, they all escaped but the Good Intent. One of the defendants was told by a witness 8^e was not sa^e to Put loading in, and he answered that he was afraid of her- The month of October is the worst for navigation upon the lakes.
    The fact of her not having had the requisite hatchways, tarpawling, and covering to the companion way, was much the most contested; and there was a difference of opinion as to their necessity upon the lake, where the danger is not so much from the sea, as from the want of room. The weight of evidence was however much in favor of the fact, that "she was not lost in consequence of filling through the hatchway or companion.
    JBuackbnrid&e J. charged the jury as follows.
    This is an action against the defendants as common carriers. The carrying which such undertake, whether by land or water, is a contract. On the part of the carrier it is implied, that his vehicle whatever it may be, is as good as the nature of the carrying requires, and as such vehicles ordinarily are; and that the carrier will use such care and diligence, as the nature of the carrying requires, and as such carriers ordinarily use. It is on the faith of this undertaking that the goods are delivered to him; and he is held to such strictness that nothing will excuse him but the act of God, or the enemies of the state. He undertakes to deliver what is entrusted, clear of all accidents, but such as are inevitable by the care of man. These are lightning, winds, seas, or public enemies. He is not considered as undertaking against nature or a foreign force. This is beyond human means in the one case, or the power of an individual in the other, to resist; and removes all danger of collusion with the earner to have the owner l’obbed. But it is at the very bottom of the undertaking, and the condition on which the goods are delivered to him, that his vehicle be good. If this is proved not to have been so, even though the accident which has happeiied to him be inevitable, can he set it up to excuse himself? Oan he expect the protection of Providence in an unfaithful performance of his undertaking ? Can he allege the act of God against him, when he himself has not used the human means and precautions, which he has undertaken and was bound to use. I use my own reasoning from the analogy of law in general, when I think that even a stroke of lightning, or a *sudden squall, upon a vessel in the harbor’s mouth, not to be allowed to be by a carrier who has fraudulently taken goods into an unfit vessel; for I call it fraud to do it. Vigilantibus non dorm-ientibus subvenit lex; and on the same principle I would think that it is the faithful carrier only that can be excused on the ground of this exception to his undertaking, the'act of Providence; or what is understood by the enemies of the state, that is, not an internal tumult but a foreign force.
    Iu the case of accidents from winds and waves, it is impossible to say but that the unworthiness of the vessel may have contributed to render the accident inevitable; and the unworthiness being established, the legal presumption is, that it was the cause of the accident. The proof in this case is either direct, by showing the state in which she was before the accident; or consequential, that from the nature of the accident, she could not have been in a good state to be so easily affected. As if a vessel sunk shortly after being at sea, it is evidence, though not conclusive, that she had not been in a good state previous to her sailing. But it does not follow that because one vessel has borne the tempest, another that has sunk under it was not in a good state.
    In the case before us, I see nothing but the question of fact simply, was this vessel seaworthy, and was she navigated with usual and reasonable skill and prudence? So that being a good vessel and in good trim, and skilfully conducted, her loss was occasioned by the inevitable accident of the tempest.
    But in examining the question of the seaworthiness of a vessel, it must be on the ground of being sound, and having all usual and substantial requisites, every thing essentially necessary to her safety and preservation ; and there is a distinction between what is requisite for the safety and preservation of the ship, and what relates to the care of the goods within the ship. In the one case it is the loss of the whole that is in view; in the other it is a partial injury that may be sustainable. "Where the action is for an injury to the goods in the ship on an average loss, we inquire as to what things were necessary to the safe keeping; and if there be no defect of precaution in these respects, and injury is sus^ne<^ from ^inevitable accident, we excuse. But if the whole is lost, it would not be reasonable to bar the excuse of the tempest, because from the defect of a tarpawling on the hatchway, the goods might have suffered injury by a spray. It is the existence, the preservation, the safety of the ship itself, and what is necessary to that, which is the subject of the present investigation. To say that the neglect of a particular towards the safe keeping of goods from water, would constitute a want of seaworthiness to the vessel, would be carrying things beyond what is reasonable, or consistent with the defect of human attention. The vigilance of man will not at all times be awake. So that it is not every possible defect that will suffice to constitute a state of unseaworthiness; it must be something that will endanger the safety of the vessel. The question will be, would any prudent man knowing all circumstances have trusted his goods; or would a faithful carrier have taken them into a vessel in such a state? Let a man make the case his own on one side and on the other, putting himself in the situation of the parties, if he can do it, without any knowledge of what has happened. The owner of the goods in this case seems to have had a general knowledge of the state of the vessel, and was not without his apprehensions; and yet he did think it prudent to deliver them, for he has stated it in his declaration that he did deliver them. The defendants also were not without their apprehensions for the vessel, and yet were willing to receive them and to undertake for their safe delivery. All things considered, both parties seem to have thought there was danger. I deduce nothing from the knowledge of the owner of the goods, the plaintiff, but this, that he did not deliver the goods under a total ignorance of the age and standing of the vessel, and that he did not think it imprudent to deliver them. This goes to his own idea of the safety of the vessel, but does not lessen his right to recover if the owner acted unwarrantably in taking charge of them on board the vessel, in the state in which she was; for it is the owner of the vessel on whom it lies to judge, and who is responsible; but it weighs something in the scale of evidence so far as it depends upon matter of opinion, that those concerned thought favorably.
    In order to ascertain the fact of seaworthiness, or the ^contrary, it is justifiable to take into view, in the next place, what has happened; for we may infer from what has happened, what has been. Has this vessel proved herself seaworthy, by the circumstances under which she sustained the tempest, and the length of time? On this last ground I rest my opinion, chiefly, so far as regards the question of seaioorthiness of the vessel, and the skill and competency of the seamen, and of the navigation.
    So far I had noted on the conclusion of the argument by the counsel for the defendants, and before the counsel for the plaintiff had begun to speak in conclusion; and it will be seen that the plaintiff’s counsel cannot complain of my not having laid down the law as favorably for him as he could desire, and as extensively as he has contended ; and I now recoguize it, and repeat that if there is a want of seaworthiness, it renders the carrier liable, let a subsequent loss be from what cause it may. His undertaking is falsified, and the accidents of nature herself ought not to excuse. Let the question then be, was she seaworthy, and navigated with sufficient skill, and in a seaman-like manner? The fact of the cable retaining the vessel for the time it did, cannot but go a great length to prove it was seaworthy. It must have resisted terrible jerks, in such a sea and for that length of time. The vessel also sustaining the shock of these seas, and being in a condition to bear a sail, on parting with her cable, certainly goes a great way in establishing the seaworthiness of the vessel herself. The conduct and navigation of the vessel, which seems to be approved by those of the witnesses of maritime skill who have been examined as to this point, goes a certain length to show the competency of the mariners to navigate. The sailing seems to preclude the idea of water-logging by the breaking into the vessel by the sea.
    I could not undertake to say in my own judgment that the want of slider fixed, or cabin door, the not having a tarpawling on board for this voyage which would not seem to exceed a day’s sail, would of itself constitute an unworthiness. But if you should think that the want of these, or the defect of the hatches, has any way contributed to the loss of the vessel, the defendants ought to bear the loss. "Were I to infer, it would be that neither of these circumstances had the least effect; hut you are judges of the fact.
    
    *At the close of the charge, the plaintiff’s counsel requested the opinion of his Honor whether the want of a tarpawling, slider, &c., would not constitute unseaworthiness ; and the judge in answer said, that relying upon the opinion of one of the witnesses, he inclined to think it would ; but after the jury had brought in their verdict, which was for the defendants, he told them, that supposing •these defects would have made the vessel unseaworthy, he had not seen evidence of their existence at the time of sailing.
    A motion was then made for a new trial, which was overruled by the court, and the plaintiff appealed.
    After having reported to this Court, the facts and the preceding charge, his Honor Judge Bkaokenridge proceeded to say—
    What I have read to this Court, as delivered by me to the jury, is verbatim as it was delivered, as to matter of law, and nothing more or less. The cause turned on a single point, the seaworthiness of the vessel, a term familiar in the law of insurance; and a carrier is an insurer. Selwyn’s Law of Nisi Priu3 Abr. 325. Hence perhaps it may be, that in a policy, the vessel is usually called the good ship: loaded on board the^oori ship John, &c.
    An insurance is a collateral undertaking by a third person, that the subject of the insurance shall be safe against the enumerated perils. Where the owner insures his ship, he remains his own carrier; and the undertaking of the third person, is that the ship shall perform the voyage safely. But it is implied in the undertaking, that the owner, the carrier, shall provide a sufficient vessel; and where the insurance is on goods, it is implied that they shall be loaded on board a sufficient vessel. In the policy, “ the insurer undertakes to indemnify the insured against the extraordinary and unforeseen perils of the sea; and it would be absurd to suppose that any man would insure against those perils, but in the confidence that the ship is in a condition to encounter the ordinary perils to which every ship must be exposed, in the usual course of the voyage proposed.” 1 Condy’s Marsh. 154.
    A warranty being in the nature of a condition preceto performed by the insured, before he can demand of the contract. In case of a breach, the contract is void ab initio. The warranty makes the contract hypothetical; that is, it shall be binding if the warranty is complied with. The underwriter has a right to say, there is no contract. 1 Condy’s Marsh. 347 a.
    There is in the contract of insurance a tacit and implied agreement that every thing shall be in that state and condition in which it ought to be. The ship is the substratum of the contract. A ship not capable of performing the voyage is the same as if there were no no ship at all. To support a contrary doctrine would induce a variety of frauds. Park. 288, 6tb ed.
    “In an action of this kind, the plaintiffs are bound to prove, not only that the ship was tight, stanch and strong, but that she was properly equipped with sails and other stores, and that she was manned with a sufficient crew, to navigate her on the voyage insured. These are conditions precedent to the policy attaching.” 1 Camp. Pep. 2.
    “ Where the ship is not seaworthy, the policy of insurance is void, as well where the insurance is upon goods to be conveyed in the ship, as when it is upon the ship itself. For whenever a cause arises with respect to damage done to goods, through the insufficiency of the ship, the question whether the master or owner is liable to make good the loss, depends upon ascertaining whether the ship was in a good condition to perform the voyage at the time of the commencement of the risk, or became defective from bad weather, and the perils of the wind and sea.” Park. 306.
    Nothing is an excuse but the act of God, and the king’s enemies; and therefore in an action against a carrier, where the goods were spoiled by water, the defendant’s proving that when the goods were put on board, the ship was tight, and that the hole through which the water came, had been made by a rat eating out the oakum, was holden to be no excuse. Pull. N. Pr. 70.
    From this it is clear that it behoved the carrier, to prove the ship tight, before he could bring himself within the excuse of the act of God.
    
    It is in point also, to prove that the seaworthiness of a *vessel is as much a warranty with a carrier, as with the assured of a vessel or of goods on board.
    
    A second question occurred in this case, which is also a question of law ; what degree of sufficiency shall constitute seaworthiness ?
    A vessel must be fit for the trade in which she is meant to be employed, and the cargo she is to take on board. Pier sufficiency must be commensurate to the then risk. Park. 299.
    The defendant’s hoy coming through a bridge, by a sudden gust of wind was drove against the bridge and sunk. Pratt Chief Justice held the defendant not liable, the damage being occasioned by the act of God, which no care of 
      the defendant could foresee, or prevent; and as to the evidence given by the plaintiff, that if the hoy had been better it would not have sunk with the strokes received, the Chief Justice said no carrier was obliged to have a new carriage for every journey. It is sufficient if he provides one which without any extraordinary accident will probably perform the journey. 1 Strange 128 ; Bull. N. P. 70.
    A third question which arose in this case, is also a question of law; on whom shall the onus probandi lie as to seaworthiness, or the want of it? This will depend upon the facts of the case.
    “If a ship within a day or two after her departure, become leaky, and founder at sea or be obliged to put back, without any visible or adequate cause to produce such an effect, the natural presumption is, that she was not seaworthy when she sailed ; and it will then be incumbent on the assured to show the state she was in at the time.” 1 Condy’s Marsh. 165 a.
    
    “ But if it appears from the facts of the case, that the loss may be fairly attributed to sea damage or any other unforseen misfortune, but yet the insurers mean to allege that the ship at her departure was not seaworthy, the onus probandi will lie on them. This seems to be the simplest rule; and simple rules are always best in matters of commerce.” 1 Condy’s Marsh. 159.
    In the case of the Good Intent (our case), the storm laid aground to presume that the loss was owing to this, and threw the weight of proving the contrary on the plaintiff.
    *The above rules are deducible from reason, and are supported by authority.
    The question of fact next occurs, which was a question for the jury ; was the vessel a good vessel? On what ground of evidence should the jury ascertain this? Shall a vessel wanting a single rope of her furniture, be said to be deficient so as to be unworthy of the sea? If it appears that the loss of the vessel was owing to the want of this rope, it will pi’ove that without that rope, she could not be said to be seaworthy. Hence it is that in cases of this nature, a jury is led to inquire whether the loss of the vessel was owing to the defect alleged in her furniture or equipment. And hence it was that in my charge to the jury in this case, I left it to them to consider whether the want of a tarpawling,&c., contributed to the loss of this vessel.
    But it is what in most cases it will be difficult if not impossible to ascertain, whether the deficiency of a particular in the furniture occasioned or contributed to the loss. The jury must then say, independent of this, whether without that part a vessel can be said to be seaworthy. Seaworthiness is a question of fact. 1 Johns. 245, Patrick v. Hallett and Bowne.
    The want of seaworthiness did not on the trial appear to me to be incontrovertibly established, and this impression I communicated to the jury. A presumption of infirmity did arise from the age of the vessel. But it was observed by me that a vessel of some age was said to be oftentimes safer against a storm, than one altogether new. It was said to yield and work better. I have seen this point discussed since by an English writer, and the fact admitted, but the reason questioned. It is not owing, in the opinion of that writer, to the yielding or working better, that, more vessels are lost the first voyage than the second; but because after sailing some time, their stowage has come to be better understood. Be this as it may, it did appear to me that the Good Intent had proved herself a good vessel by the resistance made to the storm ; that the cable had proved itself a good cable from the time it held on under such terrible jerks as it got; that the vessel from the sail she bore, and the distance run to Point Abino (we had a map on the trial) could not have been waterlogged; that if not waterlogged, she could not have ^snipped seas at the or cabin door; that if she had not shipped seas by these, they could not have contributed to her loss; that I could not assume it as a fact that these were wanting for there was no evidence of the want at the time of sailing, and the warranty attaching. There was presumption only, which I could not weigh ; this presumption arising from their being wanting some time before sailing. That supposing them wanting at that time, I must take it the vessel was not seaworthy. In saying this on the question put by the counsel, I was governed by the opinion of the captain ; and the opinion of a nautical man in a nautical question ought to have weight. But it seems to me now, considering his testimony, which is verbatim reported, that he ought to be considered as speaking of a sea voyage; and I make a distinction between a voyage on the lake, and that on the ocean; for though that of the lake may be more dangerous, it is not owing to the greater danger of shipping seas, but to the want of room to veer off, or avoid a lee shore. This would seem to be collected from the testimony of other nautical men who were examined, and who would not seem to consider a want of tarpawling and cabin door as materially affecting the question of seaworthiness.
    
      The question of fact as to seaworthiness, was more especially within the province of the jury. The verdict was forthe defendants and I was not dissatisfied with it; but I expressed myself desirous there should be an appeal, inasmuch as to matter of law, I might have erred ; and in matter of fact, it might be considered whether the verdict was according to the weight of evidence, or otherwise.
    The cause was argued in this Court by Baldwin for the plaintiff, and by A. W. Foster for the defendants.
    
      
       This case ought to have been reported in the preceding volume.
    
   Til&hman C. j.

This is an appeal from the Circuit Court of Erie county. There was a verdict for the defendants. The plaintiff moved for a new trial, which was refused, upon which he appealed to this Court. There had been a trial and verdict once before in favor of the defendants, on which a new trial was ordered; so that there have been two verdicts for the defendants.

It is an action against the defendants as common carriers, *^'or in the safe carriage of the plaintiff’s goods on board the schooner Good Intent from Port Erie in Upper Canada to the town of Erie in this state. The vessel met with a violent gale of wind, in the course of which she was driven on the rocks near Point Abino, foundered, and every soul on board perished. There is no complaint of error in law in the charge of the judge before whom the cause was tried. The case turned upon the point of seaworthiness. The law was laid down fairly, and the fact left to the jury. It was in truth a question of fact, and it must be a very strong case indeed, which could induce this Court to order a third trial on a matter of fact. The man who undertakes to transport goods by water for hire, is bound to provide a vessel sufficient in all respects for the voyage, well manned, and furnished with sails, anchor's and all necessary furniture. If a loss happens through defect in any of these respects, the carrier must make it good. The evidence in the present case was contradictory. I think it may be concluded on the whole that the vessel was sufficiently strong, that she was sufficiently manned, and that her sails, anchors and cables were sufficient. The plaintiff relied chiefly on two defects, to prove her not to have been seaworthy; the want'of cabin doors, and the bad state of the hatches, which were not covered by a tarpawling. It appears that there were no cabin doors, but the vessel was, or at least had been, furnished with sliders by which the entrance to the cabin could be closed, and this entrance was raised from ten to fifteen inches above the deck. Whether the sliders were on board at the commencement of this voyage, is not quite certain. Some of the witnesses were of opinion that this kind of closing was sufficient; others thought that doors w7ere necessary. With respect to the hatches too the witnesses differed. Some thought a tarpawling necessary, others not; some deposed that the hatches were broken, and not sufficient to keep out the water, others declared them to be in good condition. To determine a question of seaworthiness, the nature of the voyage is to be considered. It requires a different strength of vessel, and different furniture and equipments, to make a long voyage, and a short one; to navigate the ocean, a lake, and a river. The navigation of lake Erie is in some respects more dangerous than that of the ocean. There is less room; *there are few harbors, and the coast is lined with rocks; but the waves do not run so high. The voyage from Fort Erie to Presque’ Isle is in distance not more than ninety miles, and in time not generally exceeding twenty-four hours. It was for the jury to judge, whether under the circumstances of the case, the vessel was sufficiently built, manned, furnished and equipped. It was for them too to judge of the credibility of the witnesses, for the testimony cannot be reconciled. As the case appears to us, from the report of the evidence, I think it not free from doubt. It is of very great consequence to the public, that the vessels employed on the lakes, should be well built and in good condition. Many lives and much property will depend on them. But my doubts are not of law, but of fact; and after two verdicts by juries of the country bordering on lake Erie, I do not feel myself authorized to say that this vessel was not seaworthy. I am therefore of the opinion that the judgment of the Circuit Court should be affirmed.

Yeates J. declared his concurrence.

Judgment affirmed.

[Cited in 8 S. & R. 558; Authority denied, in part by Gibson C. J. in Hart v. Allen, 2 Watts 116 et seq.]  