29 F. Cas. 432 | U.S. Circuit Court for the District of Pennsylvania | 1811
The plaintiffs have not read the survey, as evidence of any fact; and in their opening, disclaimed all intention of considering the surveyor as a witness for them of a single fact, but the contrary. The principle, therefore, which is opposed to the evidence now offered, does not apply.
In the charge, it was stated to the jury, that the question for their decision was, whether this vessel, at the time when the risk commenced, was sufficiently tight, staunch, strong, and well found, to perform the voyage insured, from Cadiz to Antwerp, and to encounter the ordinary perils of that voyage; the underwriters taking upon themselves the risk of extraordinary perils. In' considering the evidence of seaworthiness, where a rational. ground is laid, as in this case, for the disability of the vessel to perform the voyage, by proof of severe gales to which she was exposed on the voyage; and more especially where, as in this case, the former condition of the vessel, for the two preceding years, is proved to be that of a sound and seaworthy vessel; the burthen of the proof is thrown upon the underwriters, to prove satisfactorily to the jury, that she was not seaworthy, and sufficiently strong to perform the voyage — otherwise, where a disability happens, without any sufficient cause, from stress of weather. With these observations, the question was left to the jury.
2. THE COURT stated to the jury, that they were not to regard the survey as proving any of the facts stated in it; and directed them, at the request of the parties, that if they thought the vessel seaworthy, to find for the plaintiffs, with the value of the vessel, subject to the opinion of the court on a point reserved.
Verdict for plaintiffs, value 15,000 dollars, subject, &e.