
    James Wallace & Co. against Depau & Kern.
    
      Charleston,
    
    1803.
    Where aves-sel proves leaky and unfit for sea, the day after she sails, without any violent gale of wind to make her so, it is sampflve Pshe she sailed.
    CASE on a policy of insurance. Verdict for plaintiffs. Motion for a new trial.
    This was an action on a policy on goods shipped at Savannah in Georgia, to Savannah Le Mar in Jamaica, on board the schooner Thomas.
    
    From the captain’s protest produced on the trial, it appeared that the vessel sailed from Savannah on the 24th of April, 1799; that on the following day she proved leaky, which continued to increase till the 27th, when they were obliged to bear away for Nassau in New Providence. That after they had borne away for Nassau, they met with severe gales of wind, and on the 8th May arrived at New Providence, with two feet water in the hold, where she was examined, and condemned as unfit for sea, and the cargo sold for little or nothing.
    The defence set up by defendants was, that she was not seaworthy at the time of sailing, which was sufficient to vitiate the policy of insurance. That it was very evident there must have been some radical defect in the bottom of the vessel, as the leak commenced on the day after she went over the bar, and continued to increase till the 27th; during which time, there was fine weather, so that it could not be attributed to the gales of wind, which happened after she shaped her course for New Providence, which, however, might have increased her leaky condition before she went into port.
    For plaintiffs, in reply, it was admitted, that if a vessel' Is not seaworthy at the time of sailing, it will vitiate the policy. But it was insisted that a vessel might become disabled within twenty-four hours after she went to sea, and that would not vitiate the policy, and that it was owing to the heavy gales she met with which disabled her.
    The jury to whom this case was submitted, found a verdict in favour of the plaintiffs for 1,400 dollars, the. amount of the sum in the policy. And the present was a motion for a new trial, on the ground, that the verdict was against the weight of testimony, and the strong presump-, five evidence, arising out of the circumstances of the case.
   The court after hearing the arguments, was of opinion* that there were good grounds to justify a new trial, inasir uch as the presumption was exceedingly strong that the vessel was not seaworthy when she sailed. She provedleaky the day after she went to sea, when there was no violent or tempestuous weather to occasion the least injury, and the leak sontinued to increase till the 27th, when the captain and mariners were obliged to bear away for Neiv Providence. If the gales which happened afterwards, had taken her upon going to sea, or before her leaky condition was discovered,, in such case, there might have been some reason to have concluded that she might have been injured by the high winds and heavy seas; but on the contrary, her bad condition was discovered before the stormy weather came on. This was sufficient to raise a strong and violent presumption, that she was not seaworthy when she sailed, and which pre*, sumption has not been rebutted by any testimony.

Rule for new trial made absolute.

All the Judges present»  