ALBANY, .Auguft 1803. Barnewall V. Church. of so great a decay, in the period of seven months, at the expiration of which, the voyage in question commenced. These, and other parts of the testimony, appear to me irreconcileable. If the question is to be decided on the credit of the witnesses merely, and there be nothing to impeach those on either side, the greatest number testify to the fact, that the vessel was unseaworthy. These were witnesses residing at Honduras. That circumstance, and the want of a sufficient knowledge of their character and credibility, have been urged against allowing much weight to their testimony, when in competition with other proof. But if there be any general reason to discredit the witnesses abroad, other circumstances in this instance operate in their favor. 1st. As has been already observed, they possessed better means of information. They examined the ship immediately after the accident happened. The examination of the two ship carpenters in New-York, from its nature, must have been more superficial, and it took place seven months before the vessel sailed on the voyage insured. 2d. In the captain's protest no cause is stated adequate to the injuries described. A sound ship, under the circumstances therein set forth, could not, in all probability, have been so injured. It does not appear that any material accident happened, no external injury was suffered, not a spar nor a sail was carried away, although a considerable press of sail was sometimes used. I do not perceive that any thing more is represented to have happened, than what might be expected on such a voyage, and what a ship ought to be competent to encounter. 3d. The captain, in his protest, swears in general terms, without designating the particular injuries sustained, and refers to the survey at Honduras, which contradicts his testimony. Neither he, nor any of the crew, were examined at the trial, and no reason has been given why they were not produced. I think it was to be expected from the plaintiff to produce them, and by their testimony, it was in his power to throw farther light on the subject. There is great reason to doubt the propriety of the verdict, and, considering the value in controversy, and that more light can probably be obtained, I think the cause exists. I am therefore of opinion, that there ought to be a new trial on the question, whether the ship was seaworthy. Kent, justice. The ship cleared out for Falmouth instead of New-York. The clearance was for Falmouth and ■market, although the ship was actually bound for NewYork. She was loaded with Mahogany at Honduras, and cleared from there, and in 16 days after she sailed, she returned in distress. I state no more of the testimony in the case, because the facts stated are sufficient for the only point which I heard argued in the cause, and on which I give my opinion, viz. whether there ought to have been a disclosure that the ship cleared for a different port than the one she was bound to? In this case, the insurance was in time of war; but the case does not state that there was any warranty, or representation that the property was neutral, and we are to intend therefore, that there was none. The insurer, according to the decision in the case of Murray v. United Insurance Company, took upon himself the risk of enemy's property. The non-disclosure of the clearance for Falmouth could not then, in any possible view, be material, for the disclosure of the fact (if at all material) could only have been so, as it affected the neutrality of the vessel. On this point, therefore, I am for the plaintiff, and that the verdict ought to stand. Lewis, chief justice. An application is made to set aside the verdict in this cause, and for a new trial. Three questions are raised for the consideration of the court: 1st. Did not the ship sail on a voyage different from that insured? 2d. Ought not the fact of her clearance for Falmouth and a market, pursuant to the orders of the plaintiff, of the 3d of October, 1799, to have been disclosed to the underwriter? ALBANY, August 1803. Barnewall V. Church. July term 1800. ALBANY, August 1803. Barnewall V. Church. Doug. 238. 3d. Is not the verdict against evidence on the point of the ship's competent sanity to perform the voyage insured? The first question is raised on the fact of the Hope's having cleared from Honduras, for Falmouth and a market, when the insurance was for New-York. This would be a circumstance of some weight, were it connected with others tending to shew that the real intention was a voyage immediately from Honduras to Falmouth, but cannot, per se, be sufficient evidence of that fact, and certainly cannot be permitted to controul the counter testimony, which establishes, beyond doubt, that her real destination was for New-York, and that the clearance for Falmouth and a market, was probably for the purpose of saving certain duties, in the event of the cargo ultimately finding a market at a British port. Her consignee at Honduras, from his correspondence with the plaintiff, understood New-York to be her destination, and wrote letters by her, to his correspondents there. The letter of the plaintiff to the captain, containing the instruction as to his clearance, directs him, in the same period, to return direct from Honduras to New-York, as before ordered. The expressions are" Although you are to return direct from Honduras to this place (viz. NewYork) as before ordered, you will clear out the vessel from Honduras to Falmouth and a market." This, in my opinion, establishes beyond controversy, that New-York was the port she was bound to. The first protest of the master, mate, and one of the seamen, in which the ship is stated to have been bound to Falmouth and a market, is a circumstance almost too slight to be noticed; for I have observed it a practice without variation, for the protest, in this respect, to be made according to the clearance, without regard to the true place of destination. In the 2d protest, the master states he sailed for New-York, though cleared for Falmouth, thus correcting his statement, when he discovered the fact to be material. If there is any substantial distinction between the cases of Planché and another against Fletcher, Mayne against Walter, and the present case, it is favorable to the last. Im the two first, the vessels cleared for an intermediate port, at which they had leave to touch, the policy continuing to their arrival at the ultimate port of destination; in this the policy would have terminated on her arrival at an intermediate port, though she might afterwards have proceeded under her original clearance for Falmouth. The next question is, whether the fact of the clearance for Falmouth ought to have been disclosed to the underwriter. It is not contended that the concealment was fraudulent; and in order to render it a circumstance affecting the policy, it ought to appear material to the risk. The only guide we have on this occasion leads to a contrary result. There cannot be a surer test of the materiality of a concealed circumstance, than its influence, if known, on the rate of premium. The New-York Insurance Company were also on this risk, and near two months after subscribing the policy, assented, without additional premium, that it should not be affected by the circumstance of the ship Hope having cleared out for Falmouth, instead of New-York. This company must be presumed to understand its interests, and their conduct on this occasion is decisive, that the fact concealed was immaterial to the risk, and there fore the policy is not affected by it. The third and last question is on the seaworthiness of the ship. On the argument a novel position was advanced, viz. that latent defects are at the risk of the underwriter; that they are covered by the premium, because he calculates chances according to losses. My first impression, I confess, was favorable to its correctness, notwithstanding the force of authority against it. But on examination I was satisfied, that although in part true, in point of fact, it is nevertheless unsound in principle. It is true that losses are the basis on which the underwriter calculates the chances of loss and gain. But it is equally true that his not being an-werable for inherent defect, or natural decay, diminishes the number of losses, and thus reduces the chances against him. The implied warranty then, on the part of the assured, that the ship is tight, staunch, and strong, well equipped, &c. remains unimpeached, and on the fact of this warranty having been complied with, on the present occasion, rests the question between the parties. ALBANY, August 1803. Barnewall V. Church. ALBANY, August 1803. Barnewall Church. The judge before whom the cause was tried, is, in the case. made, stated to have instructed the jury" that by law every vessel is presumed to be seaworthy." This I presume to be. not perfectly correct, or in other words, that the instruction ought to have been less general, or rather, more precise. Every vessel is presumed to be seaworthy in the first instance, in respect to the implied warranty only; because the law will not, without cause, presume a party to have falsified his stipulation. But the instant she becomes Marfball 365. innavigable, and incapable of proceeding on the voyage insured, the presumption is that this proceeds from age or internal defect, arising from some other cause, until it appear to have been the effect of sea, damage, or unfore seen accident insured against. And with reason is it so ; for the insurer engages against extraordinary and unforeseen perils of the sea. And this he does, in the confidence, that the ship is capable of performing the voyage, and assuring to him his premium, ordinary occurrences notwithstanding. I am strongly inclined to believe that the verdict of the jury in this cause, was owing to the generality of this instruction. That relying too firmly on the presumption, as therein stated, they sought for positive and conclusive evidence to the contrary, thereby losing sight of the presumption arising from the want of evidence of external accident, and not duly appreciating the testimony taken under the commission at Hondura, as to the real cause of condemnation. The vessel is stated to have been nine or ten years old at the time of the insurance being made; to have been tho roughly repaired in 1795, examined in April 1799, previous to the purchase of her by the plaintiff; afterwards repaired by the examiners, Williams and Peacock, two ship carpenters, and purchased on their report. They state, that after her last repair, she was fit for a voyage to any part of the world. This testimony is corroborated by that of captain Dorgan, who commanded her at the time she was purchased by the plaintiff; there is, however, a variance between his testimony and that of the two ship carpenters. He testifies, that she was twice hove down within fourteen months previous to the sale, some of her planks ripped off, |