Upon the trial of this action, the complaint was dismissed by the judge on motion of defendant's counsel upon the ground that the proof did not show that the vessel in which the coal was transported was seaworthy, which the policy of insurance required her to be. In every case of marine insurance there is an implied warranty of seaworthiness on the part of the insured, and if the vessel is not seaworthy the policy does not attach. (1 Arn. on Ins. 652, 667; 2 Pars. on Cont. [5th ed.] 375; Allison v. CornExchange Ins. Co., 57 N.Y. 87; Draper v. Commercial InsuranceCo., 21 id. 378; Howard v. Orient M. Ins. Co., 2 Robt. 539.)
This warranty of seaworthiness is a condition precedent, the performance of which must, to entitle the plaintiff to recover, be alleged and proved by him; and if it appears that the vessel, shortly after sailing, became leaky, unfit to perform the voyage, or sinks, without encountering any peril or storm, this is presumptive evidence of unseaworthiness. (2 Arn. on Ins. 1345.)
In the case at bar the proof shows that the boat on which the cargo was, upon which the loss is claimed, within twenty-four hours after sailing, is found abandoned by master and crew, in a sinking condition, and soon after sinks and goes down, "acting," as testified to by one of the witnesses, "as if *Page 354 she broke in two as she was going down," and there is no evidence of any storm, or that she encountered any extraordinary peril.
The facts presented bring the case within the rule above stated, and it is very manifest that upon no sound principle of law can it be held that, under the circumstances, the vessel was seaworthy. Although the question has never been decided in this court, yet the distinct point was presented in the New York Superior Court in the case of Wright v. Orient Mutual Ins.Co. (6 Bosw. 269). In that case where a vessel sailed in the morning, and was soon after found to be leaking, and in the afternoon put back to port, the jury having found a verdict for the plaintiffs, no violent storm or extraordinary peril being shown, the court set the verdict aside, as contrary to evidence and law, and in violation of the presumption of unseaworthiness arising on such facts. In the case considered there was no evidence introduced on the part of the plaintiffs directly showing that the vessel was seaworthy, even when she started on her voyage. The claim of the plaintiffs to the contrary is without merit. The testimony of Mr. Lawrence, which is relied upon by the appellants, does not establish that the boat was seaworthy. He testified that he thought the boat was capable of carrying what coal she had on. This was not enough to establish seaworthiness in the face of the fact that within twenty-four hours after she started, without any apparent cause or reason, she sank at the dock where she was moored. Nor does the fact that she had performed other voyages safely prove her seaworthiness in contradiction of the testimony showing her loss and destruction. It cannot be said that a vessel, which, after a voyage of two or three hours, without encountering any danger or peril, sinks and disappears, was sound and seaworthy. As the case stood upon the evidence given, it is very clear that the court were entirely justified in dismissing the complaint.
The claim of the appellants that the loss of the vessel was occasioned by one of the perils insured against in the policy rests upon the assumption that seaworthiness was proved at *Page 355 the inception of the voyage. As we have seen, this is fallacious and not sustained by the evidence. Conceding, as is claimed by the appellants' counsel, that the presumption that the perils of the sea were inadequate to produce the loss may be rebutted by proof that the vessel was actually seaworthy when she sailed, the answer is that no such proof was offered or introduced upon the trial, and no request made to go to the jury upon the evidence.
The plaintiffs claim that, it appearing that the loss of the cargo was not occasioned by any of the excepted causes contained in the policy, they should be entitled to recover upon the facts in this case, whether the loss was occasioned by the perils of the sea or not. We think there is no force in this position, and the policy contained no language which authorized a recovery under the facts proven. This point was not raised specifically upon the trial, and the complaint was dismissed by the judge on the ground already stated.
There was no error upon the trial, and the judgment should be affirmed.
All concur.
Judgment affirmed.