ALBANY, August 1803. Barnewall V. Church. timbers to be sound and good: She was thoroughly repaired, and fit for a voyage to the East-Indies. Andrew Dorgan swore, he had sailed in this ship as master for fourteen months, immediately preceding April 1799; that he arrived in New-York, with her, in the March before, with a cargo of 400 hogsheads of Molasses, and 100 hogsheads of sugar, besides some other articles; That he sustained four severe gales of wind on the coast, but the vessel received no injury; that while he was master of her she was twice hove down and examined, and none of her timbers found rotten or defective; that when he left her, he considered her a very strong, staunch and good vessel, fit to go to any part of the world, she was ten years old. By the first protest of the captain, chief mate, and one seaman, made 20th February, 1800, in Honduras, it ap pears, that when they sailed from Honduras, about the 27th of January 1800, they conceived the ship tight, staunch, and well fitted for the voyage; that she encoun tered some stiff gales and heavy weather. By the second protest of the captain alone, made in New-York, in June 1800, extending and explaining the former, it appears, he sailed from Kingston 21st November 1799, arrived at Honduras 8th December following, and left that place for NewYork the 27th of January 1800, the vessel well fitted for the voyage; that he met with excessive hard winds; that the navigation was difficult and dangerous, and he was obliged to carry a heavy press of sail, in order to avoid the reefs and keys; that he found the ship leaked so fast, that he was obliged to keep the pumps continually working; that on the 2d of February, for the safety of the ship and cargo, and preservation of the lives of the crew, it was, on a consultation, thought adviseable to bear away for Swan's Island, but as they could not get there, they then bore away for Honduras; that from that time, to the time of her ar rival at Honduras, they experienced heavy gales and vari ous changes of weather. On the 17th, the ship was surveyed, and condemned as unfit to proceed on the voyage without considerable repairs, to do which, no workmen or materials were to be procured at that place. The captain swore, that he believed, if the ship had arrived at any port on the continent of America, she might have been repaired, fit for her voyage, for fifteen hundred or two thousand dollars. On the part of the defendant, as to the question of seaworthiness, the testimony of Philip Nicoll, James Ephraim Tropp, John Potts, and William Gibson, surveyors at Honduras, is introduced. The three former swore substantially, that on the 17th of February 1800, they were on a survey of this vessel, that above two thirds of her timbers were rotten, many of the planks started by reason thereof, some planks rotten, the bends rotten and loose, particularly aft; so that with a crow-bar, they might have been ript up for twenty feet; the defects in her timbers and upper works, appeared to have been so, for a considerable time. The trunnels started in many places, chain bolts started, and many of them ready to drop out., That from her then appearance, she could not have been seaworthy on the 21st of November 1799, and fit for the voyage described in the policy, on account of the bad state of her upper works, and the general decay of her timber, bends, and plank, which could not possibly have been so much injured in that interval. The survey also made by eight men at Honduras, states, that they had examined into her upper works, sides, and bends, and found her to be wholly defective in her timbers aloft, her out side planks rotten and decayed, her timbers in many places started, her bends started, and in many places rotten; the whole of her upper works, inside and outside in general decayed. With respect to the other question, it appears from the testimony, that the vessel had a clearance for Falmouth, and a market; but that her real destination was for NewYork. It appeared also, from the testimony of Jacob Knox, that he had been informed, and believes it to be true, that vessels clearing out with mahogany, direct from Honduras to Falmouth, save about 105 pounds per ton, which would be payable if landed at a foreign port. are, The two questions arising out of this case for decision 1st. Whether the verdict was against evidence, on the question of seaworthiness; and, ALBANY, Auguft 18.3. Barnewall V. Church. ALBANY, Barnewall V. Churcb. 2d. Whether the plaintiff ought not to have disclosed to the defendant, that the vessel would have a clearance for Falmouth. There is, in every insurance, an implied warranty that the ship shall be seaworthy, when the risk commences; that she shall be tight, strong, and in all respects, fit for the intended voyage. The insurer undertakes only to indemnify against the extraordinary and unforeseen perils of the sea, and not against the ordinary perils, to which every ship must be exposed in the usual course of the voyage proposed. If a vessel become incapable of proceeding on the voyage insured, the presumption, primâ facie is, that it arises from unseaworthiness, unless some adequate cause be shewn to occasion the damage. But, if any such cause be shewn, so that the loss may be fairly attributed to sea damage, and the underwriters mean to rely on the ship's not being seaworthy at her departure, the onus probandi will then lie on them. To test the present case by these rules, we find the only testimony, as to the immediate cause of the disaster, is that contained in the two protests. From the first, made by the master, chief mate, and one seaman, it appears, that the vessel left Honduras the 27th of January. That on the 28th May, she met with strong gales, so that they were obliged to close reef the fore-topsail, and close reef the main-topsail. That on the 29th, strong gales, and a heavy sea, from the northward, still under reefed sails, the vessel making much water. On the 30th, the wind abated; and nothing remarkable occurred until the 2d of February, when they found the leek increased to that de gree, that they could not keep her free from water with the pumps. They then bore away for Swan's Island, which being unable to reach, they determined to return to Hondu ras, where they arrived the 13th of February. During the above time, they encountered, at various periods, stiff gales and heavy squalls. Thus we find the ship, from the 28th of January, until the 13th of February, a very considerable part of the time labouring under stiff gales, and heavy weather, far beyond the ordinary perils of the sea. The master swears, that shortly after leaving Hondura, he met with excessive hard winds; that the navigation was difficult and August, 1803. Barnewall V. Church. dangerous, and he was obliged to carry a very heavy press ALBANY, of sail, in order to avoid the reefs and keys; and that after he had met with considerable injury, and it was determined, again to return to Honduras, he experienced heavy gales, and various changes of weather. This I think sufficient to shew, that the loss may be fairly attributed to sea damage, and throw the onus probandi of unseaworthiness on the defendant. On this subject, the testimony is certainly very contradictory, and, in my opinion, irreconcileable. The implied warranty on the part of the assured is, that the vessel was seaworthy at the commencement of the risk; this was on the 21st of November, 1799, while she lay at Kingston. The testimony on the part of the plaintiff is substantially, that in April, 1799, when he had it in contemplation to purchase this vessel, he procured ship carpenters to examine her, and ascertain her situation, previous to completing the bargain; no possible inducement, therefore, to a fraud, on the part of the plaintiff. They examined her accurately, bored in places most liable to rot, and found her sound; stripped off her sheathing, found her bottom English elm, and perfectly sound; her naval hoods and head knees sound; took off the plank so as to examine her top timbers, and found them sound and good. The testimony of Captain Dorgan, likewise, who arrived in March preceding from the West-Indies, in this ship, with a cargo of 500 hogsheads of sugar and molasses, tends to shew that she was a very tight, strong vessel, and only ten years old. This, it is said, however, was seven months before the commencement of the present insurance. But if she was in the situation represented by these witnesses in April, it is inconceivable that she could be in the rotten and decayed state represented by the defendant's witnesses in November thereafter. The examination made by the defendant's witnesses was in February, 1800, three months after the commencement of the ri k. All the progressive decay, therefore, from the November preceding, was at the risk of the underwriter. But it appears incredible, that all this decay could have taken place in that period, for the defendant's witnesses represent, that when she was surveyed by them, two-thirds of her timbers. were rotten, many ALBANY, August 1803. Barnewall V. Church 2 Strange 1142. Iden. of her plank started and rotten; her bends so rotten and loose that with a crow bar they might have been ript up for twenty feet; her upper works in a very bad state; and, in short, that there was a general decay of her timbers, bends, and plank. The master of the ship, however, swears, that had she arrived in any port on the continent of America, she might have been repaired, fit for the voyage, for fifteen hundred, or two thousand dollars; but if she had been in the situation represented by the defendant's witnesses, she must have been irreparable. On the whole, the testimony is so directly and palpably contradictory that it is impossible to reconcile it. It thus becomes a question of credibility of witnesses, and this is peculiarly within the province of a jury to determine. Whether the vessel was seaworthy or not, is also matter of fact, to be submitted to a jury. These points have been decided by a respectable jury of merchants; and in such case, where the question is doubtful, and the testimony contradictory, I think the court ought not to interfere by granting a new trial, unless it appears that injustice has been done, or that further light may be thrown on the subject on another examination. In the case of Ashby v. Ashby, the judge who tried the cause, (which was upon a promissory note for 5000 pounds, which the defendant insisted was forged) certified, that the weight of the evidence was with the plaintiff, and he thought the jury would have found for the plaintiff, but they found a verdict for the defendant. And on an application for a new trial, the court said, as there was evidence on the part of the defendant, the jury were proper judges to determine which scale preponderated; that it could not be said to be a verdict against evidence, and so refused to grant a new trial. The same rule was adopted in the case of Smith v. Huggins, and a new trial denied, although the evidence was weak on the part of the plaintiff, and the judge who tried the cause, strongly inclined against the verdict. I am therefore of opinion, on the first point, that a new trial ought not to be granted. With respect to the second question, I think there can be but little difficulty. There is no doubt but the real des |