or wares, but from latent defects, exifting before the voyage commenced, the insurer is discharged (a). ́ There is, moreover, in every insurance, whether on fhip or goods, an implied warranty that the fhip fhall be feaworthy when the risk commences; that is, that she shall be tight, ftaunch and strong, properly manned, provided with all neceffary ftores, and in all refpects fit for the intended voyage. -The confideration of the infurance is paid, in order that the infured may be indemnified against certain contingencies; and it fuppofes that the infurer may gain the premium: But if the hip be incapable of performing the voyage, there is no poffibility of the insurers gaining the premium, and in that cafe, the contract, on his part, would be without confideration, and confequently void.-The infurer undertakes to indemnify the infured against the extraordinary and unforeseen perils of the fea, and it would be abfurd 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 fhip must be exposed in the ufual course of the voyage proposed. By the law of France it is directed, that every mer'chant ship, before her departure from the place of her out-fit, fhall be furveyed by certain officers appointed for that purpose, and reported to be fea-worthy, (en bon état de navigation); and that, previous to her return, before fhe takes her homeward cargo on board, fhe fhall be again furveyed.-Valin (b) fhews how little confidence he placed in thefe furveys, which, he fays, are only made upon the external parts, for the fhip is not unfheathed, and therefore the inward and hidden defects are not difcovered.-Indeed it seems to be much better to leave the validity of the policy to depend on the fea-worthinefs of the fhip, to be afcertained after a loss has happened, by an investigation of the true caufe, than to permit so important a question to be decided by the report of mercenary officers. A fhip may, to all appearance, be perfectly capable of performing a voyage, and it is only after a loss has happened that her latent defects (a) Le Guidon, c. 5, art. 8, Valin, tom. 1, p. 654, tom. 2, P. 80. Pothier, h. t. n. 66, Emerig. tom. 1, p. 580, Ord, de la mar. h. t. art. 12. 2 Mag. 90, 140.-(6) Tit. fret, fur. art. 12. ara are discovered, and her true state at the time of her de parture comes to be known. Nor was the furvey thus made by the French conclusive to prove that the fhip at her departure was fea-worthy. It raised a prefumption that she was fo; but it ftill remained open to the insurers to fhew the contrary. As the infurer is only liable for loffes arifing from the extraordinary and unforeseen perils of the voyage, if the fhip become innavigable, or incapable of procceding on the voyage infured, all the writers agree that the prefumption fhall be that this proceeded from the age and rottenness, or other defect of the ship, unless it be made appear to have been occafioned by fea damage or fome unforeseen accident (a). The reafon affigned for this is, that, by the marine law, an indefinite innavigability is never claffed among the perils to which the infurer is liable; becaufe a thing fo fubject to be injured by time and the use which is made of it, cannot be fuppofed always to retain its original state; and that, though a fhip may, at the time of her departure, appear capable of performing the voyage ihfured; yet, if the voyage should prove longer than ufual, her internal defects will fometimes become apparent, from time, from the preffure of the cargo, and from the action of the feas, without any extraordinary accident. un for the nounced inna Aship springs a leak at fea, and is forced by contrary winds to nearest port, where he is provigable:-Wether this fhall be prefumed to have arifen from Cafaregis (b), in fupport of this doctrine, cites the following decifion of the Rota of Florence.-A fhip, with a cargo of goods on board, failed from Cadiz for Amfterdam; and when she was off Cape St. Vincent, she was forced by a strong north wind to put into St. Croix de Te heriff, to avoid foundering. Being there furveyed, fhe was, by the conful, pronounced to be innavigable.-The infured infifted that the above circumftances amounted to fufficient evidence of the lofs, which could only be attributed to the contrary winds, which, having caufed when the failed.. 4 (a) Targa, ch. 60, p. 256. Pothier, h. t. n. 66. Cafaregis dif. 142, n. 15. Valin, fur art. 28, 29, & 46, h. t. p. 76. In p. 98, he fays, "La prefomption eft, que le mauvais état du navire vient de fon propre vice."-(b), Loc. cit. her not having been fea-worthy the the ship to fpring a leak, had rendered her innavigable.The infurers replied that the insured were bound to give conclufive evidence of the lofs; that the witneffes examined by the conful did not depose that the lofs was occafioned by the contrary winds; that the leak did not fhew a right to abandon, because in the course of a voyage it fometimes happens to the best fhips to spring a leak, without any extraordinary fea-damage.-The judges of the Rota adopted these reasons, and decided in favour of the infurers. Their judgment was delivered to the effect following:-The question being, whether the fhip had been declared innavigable on account of the violence of the contrary winds, or on account of fome peculiar and inherent vice, it has appeared to us, that this being the case of innavigability, it ought rather to be attributed to the inherent vice of the fhip. The bad condition of the fhip is prefumed to proceed from an ancient, certain, inherent, natural, and conftantly-operating cause, rather than from the effect of the winds, which is accidental and extrinfic (a). Decay and rottennefs are reputed the most active and moft powerful caufes from which innavigability can proceed (b). A ftorm is not deemed a fufficient cause of a lofs, if this can be shewn to have proceeded from the inherent vice of the thing infured. The mere poffibility that the injury has not been occafioned by the fea, is enough to fhew that the proof of the infured is infufficient (c). Emerigon, however, holds that, in confideration of the previous furvey, the prefumption that the ship was feaworthy when the failed fhall prevail till the infurers fhew the contrary; and he cites a number of decifions of the (a) Totum damnum referri debet caufæ antiquiori, originali, certæ, et intrinfeca fragilitatis et vetuftatis navis, n. 22. (b) Vitium intrinfecum infectionis et corruptionis reputandum fit pro caufâ potentiori, et majoris activitatis, ex prædictis, cui propterea principaliter effectus eft attribuendus, n. 24.-(c) Sola poffibilitas in contrarium fufficit, ut probatio non dicatur fufficiens. n. 36, &c. admiralty 1 admiralty court of Marseilles upon this point, from which it would seem that no evidence of the rottennefs, or of the decayed ftate in which the fhip may be found after fhe fails, is fufficient to countervail the report of the previous furvey (a). And it must be owned that, in practice, though the rule, as laid down by the writers above cited, ought never to be loft fight of, many difficulties may arise from too ftrict an obfervance of it. Where a fhip is loft, or is condemned in the courfe of the voyage, as being incapable of proceeding to her place of deftination, and this cannot be afcribed to ftrefs of weather or any accident in the voyage, the fair and natural prefumption is, that she was not fea-worthy; and then it is incumbent on the infured to fhew that, at the time of her departure, the was in fact fea-worthy. This prefumption is founded upon principles of public policy, which require that the ship, at the time of her departure, fhall be in fuch a state as to be capable of encountering the ordinary perils of the voyage infured; and this must be the true meaning of the words, "tight, flaunch, and Strong," ufed in charter-parties. However perfect a fhip may be in herfelf, yet, if the be incapable from the nature of her conftructure, or any other caufe, of performing the voyage infured, with the propofed cargo on board, she is not fea-worthy. She must be, in all respects, fit for the trade in which he is meant to be employed. And it is a wholesome rule that the infured shall be held to pretty strict and cogent proof of this. It is alfo a wholefome rule, that this proof fhall not only be cogent and strong to fhew the fhip's fufficiency at the time the failed, but also that the infured fhall bring forward all the evidence which he has upon the subject; particularly (a) Valin fur art. 29 h. t. seems to have these decisions in his mind when difcuffing this point, he fays,-" On cite fur ce fujét plufieurs arrets d'Aix et des fentences de Marseille contre les affureurs; mais ces prejugés, pour etre juridiques, doivent avoir été rendus fur des preuves que les navires, avoient été rendus innavigables par fortune de mer. Cependant qu' eft ce que ces preuves pour l'ordinaire? Des procès-verbaux frauduleux de la part des capitaines, toujours difpofés à favorifer les armateurs, fans egard à la vérité et la justice." what If the lofs or lies on the in furers. Neither the ig norance or inno cence of the in fured will avail him against a breach of this implied warranty. The purchafer of a fhip fends her to be docked and completely repaired, and the fhip-builder is ready to fwear that this was what relates to the ftate fhe was in when the lofs hap pened, or when she was condemned as unfit to pro-. ceed on the voyage. If any thing fhould be withheld which the infured might have produced, it will always throw great fufpicion on his cafe. Too much often refts on the fingle teftimony of the mafter, always inclined to favour his employers (a).-If, on the other hand, it appear from the facts of the cafe, that the lofs may be fairly attributed to fea-damage or any other unforeseen misfortune, but yet the infurers mean to alledge that the fhip at her departure was not fea-worthy, the onus probandi will lie on them. This feems to be the fimpleft rule; and the fimpleft rules are always the beft, particularly in matters of commerce. or toyildo bu yansi If it be clearly afcertained that the hip, at the time... of her departure, was not in a condition to perform the voyage infured, neither the innocence or ignorance of the infured, nor any precautions he may have taken to: make her fea-worthy, will avail him against the breach of his implied warranty. 1. 9 Thus: The plaintiff had purchased a ship, and afterii: having her furveyed by proper perfons, fent her into dock, and there had her fully repaired; and the fhipeit builder was ready to fwear that he had effectually res^ paired her, as he thought, having done all that was re-h quifite to make her a good ship. Being then taken into pear that the government fervice, fhe was, as ufual, furveyed by the a was not fea-war perfons employed for that purpofe, and reported to be ti proceeded from a a good fhip, the failed out of the Thames, and armol done; yet if it afterwards ap--- thy, though, this 1. latent caufe, happ Leeys Beach, at N, P. after M. 1762. 2 'e't in the policy is!. rived at Portsmouth; but being very leaky with bad weatow void. gown! ther, the admiral ordered her to go into ports grand unend dergo a furvey there. This was done, and it was found, ti on opening her, that fome timbers near her keel ywere sw monsvery bad; infomuch,that he was condemned as infufficient. to proceed. The plaintiff having infured her, brought an action on the policy to recover the lofs and at them? trial infifted that he had a right to prove, and could proved 10 that he had done, every thing in his power to fend heroft out a good and fufficient fhip; but that her difabilitysge psinoupon fow &* was |
