| U.S. Circuit Court for the District of Massachusetts | Oct 15, 1827
in summing up the facts to the jury, said: There being a great conflict of opinion on the testimony upon some of the questions made at the bar, it may be necessary to consider upon whom the burthen of proof lies, for that may naturally influence your verdict. If, upon the whole evidence, the case hangs in great doubt upon any point, then the party, whose duty it is to satisfy your minds beyond a reasonable doubt on that point, having failed to establish it, must, to that extent, surrender his right to a verdict. Now, upon the three points of misrepresentation, negligent navigation, and deviation, my opinion is, that the burthen • of proof rests on the defendant. Each of them constitutes a substantial ground of defence, in respect to which the plaintiff is not to prove the negative, but the defendant is required to establish the affirmative. So far indeed as the plaintiff’s own proofs let in or assist such a defence, they are fairly before the jury to weigh as far as they may; but beyond these the defendant must satisfy your remaining doubts, or the de-fence miscarries. In respect, however, to the point of seaworthiness a very different principle prevails. There the burthen of proof rests on the plaintiff himself, for the existence of seaworthiness at the commencement of the voyage is a condition precedent, implied by the 'aw, to the attaching of the policy. Unless therefore the vessel be seaworthy at the commencement of the voyage, the underwriter is never bound, for the contract has never attached itself to the risk.
Much argument has been employed at the bar upon the question of the nature and extent of seaworthiness. It has been properly remarked, that the standard of seaworthiness has been gradually raised within the last thirty years, from a more perfect knowledge of ship-building, a more enlarged experience of maritime risks, and an increased skill in navigation. In many ports, sails and other equipments would now be deemed essential, which at an earlier period were not customary • on the same voyages. There is also, as the testimony abundantly shows, a considerable diversity of opinion, among nautical and commercial men, as to what equipments are, or are not, necessary. Many prudent and cautious owners supply their vessels with spare sails and a proportionate quantity of spare rigging; others do not do so, from a desire to economise, or from a different estimate of the chances of injury or loss during the same voyage. Of course, different men may well therefore come to different conclusions from the same premises, on a point like this, from their own habits of life, and the general custom of the place to which they belong. But I think I may say, that it would not be a just or safe rule in all cases to take that standard of seaworthiness, exclusively, which prevails in the port or country, where the insurance is made. In the present case the insurance is made in Boston, upon a British vessel belonging to the port of Halifax in Nova Sco-tia. If the Boston standard of seaworthiness should essentially differ from that in Halifax, in respect to equipments for a South American voyage of this sort, it would be pressing the argument very far to assert, that the vessel must rise to the Boston standard before the policy could attach. It seems to me, that where a policy is underwritten upon a foreign vessel belonging to a foreign country, the underwriter must be taken to have knowledge of the common usages of trade in such country, as to equipments of vessels of that class, for the voyage on which she is destined. He must be presumed to underwrite upon the ground, that the vessel shall be seaworthy in her equipments, according to the general custom of the port, or at least of the country, to which she belongs. It would be strange, that an insurance upon a Dutch, French, or Russian ship, should be void, because she wanted sails, which, however common in our navigation, never constituted a part of the marine equipments of those countries. We might as well require, that their sails and rigging should be of the same form, size, and dimensions, or manufactured of precisely the same materials as ours. In sho:t, the true point of view, in which the present case is to be examined, is this, was the Emily equipped for the voyage in such a manner, as vessels of her class are usually equipped in the province of Nova Scotia, and port of Halifax, for like voyages, so as to be there deemed fully seaworthy for the voyage, and sufficient for all the usual risks? If so, the plaintiff, on this point, is entitled to a verdict. Of course, the question of seawortniness must be, in some respects, the same ¡n all countries. Cables and anchors, and proper rigging and sails, to meet the ordinary exigencies of the voyage, must be, in every country, put on board for common safety.
Verdict for the defendant.