This action was upon a time policy of insurance, whereby the defendant insured the steamer Queen of the Pacific from the 9th day of August, 1887, to the 9th day of August, 1888. The language of the policy is very broad, and generally is against “ all other perils, losses and misfortunes that have or shall come to the hurt, detriment or damage of the said ship, etc., or any part thereof.” It appeared from the evidence that this steamer, being in good order and apparently properly manned and equipped, sailed on April 29, 1888, at two o’clock in the afternoon, from San Francisco for San Diego, Cal. When the ship sailed there was an ordinary west and northwest wind, and a chopped sea with a full sail breeze for a ship. Everything went on well until sometime between two and half-past two o’clock the next morning, April thirtieth, when one of the officers of the ship discovered water coming in from the starboard alleyway. The officers of the ship attempted to stop the leak without success. The vessel was run ashore, where she sank.. She was subsequently raised, when it was found that an after port hole in the starboard alleyway was open ; that there were no other holes or breaks in the hull of the vessel, and that the water which caused the vessel to sink must have got in through this open port hole. The evidence is clear that the vessel was properly constructed, the deadlights ample for the purpose; and that, but for the fact that one of the deadlights was open, the vessel was in a perfectly seaworthy condition both at the. time of the issuing of the policy and from the time she sailed from San Francisco to the time of the sinking. There is, it is true, a claim by the defendant that in consequence of some error in the construction of the vessel, the water getting into this alleyway was unable to reach a portion of the vessel from which it could be taken up by pumps ; and testimony was given by a person who described himself as a “ surveyor for *200Lloyd’s Begistry British and Foreign Shipping,” in which he testified that there should “ be at least two four-inch pipes on the side of the vessel which would take water far more than the leakage, from the alleyway into the hold of the vessel.” He further testified that if a vessel had started from San Francisco and it was found that she had. taken in water in the starboard alleyway and subsequently sunk, he would not have passed the ship before these things were done and scuppers fitted, and would not give her a certificate to go to sea. But the witness refused to say, although he was pressed by counsel for the defendant, that the absence of such scuppers would make her unseaworthy; nor does the evidence conclusively show that the vessel did not have such pipes or scuppers. Croglian, one of the witnesses for the plaintiff, did testify that the alleyway had no connection with any part of the ship except through certain doors; he knew of no means of the water getting out except through the doors, and there were no pumps that would reach the water in the alleyway. This seems to have been the only evidence that there was no way for the water to get to the pumps from this alleyway; but it is not clear that the witness intended to say that he knew of his own knowledge that there were no pipes of any kind in the alleyway. There is no evidence to show that, in a properly equipped ship with proper deadlights and hatches, there would be a reasonable apprehension of sufficient water entering to make the ship unseaworthy because provision was not made for carrying water from that alleyway to the hold of the vessel. At most, a finding that she was unseaworthy from this cause would be an inference of fact which would be for the jury. The evidence, however, did establish that this loss was caused by water entering this port hole, and that, when the vessel was raised, it was found that this port hole was open. As before stated, it is not disputed but that the vessel was furnished with proper deadlights to cover these port holes, The assured furnished a competent employee, whose duty it was to look after the deadlights in port, to close the deadlights or port holes as the cargo was placed in the vessel, and this employee swore that he did close and fasten all the deadlights during the days the vessel was in port prior to her sailing. It seemed that the floor of this alleyway was about a foot above the level of the sea when the vessel sailed, and that the dead-*201lights were between three and four feet above the floor of the vessel. The alleyway was stowed with freight when the vessel sailed. The witness testified that he first closed the glass, which fastens with a screw,- which he set up with a key, and then closed the iron hacking with two screws, using the same key for both. He swears that all of the deadlights or port holes in the alleyway were in good order at the time, and that he closed the door after fastening the last dead-light. The vessel sailed on April twenty-ninth, at two o’clock. All that day and evening went on as usual until sometime between two and half-past two o’clock the next morning water was noticed leaking from this alleyway, and it was noticed that the vessel had a slight list to starboard. Thus it seems that more than twelve hours had elapsed between the time of the sailing of the vessel before any considerable amount of water leaked in, and that during all that time there was cpiite a heavy sea, with the vessel rolling considerably, and it was at least a question for the jury to determine as to whether or not, if the port holes had been open when the vessel sailed, water would have been sooner discovered. If the jury believed the evidence of the captain of the hold, who swore positively that he closed and fastened these port holes when the vessel sailed, and believed that she was not unseawortliy because of the arrangement of the pumps and of there being an opening to allow water to get into the hold, they would he justified in finding a verdict for the plaintiff, and we think it clear, therefore, that the refusal of the court to direct a verdict for the defendant was right.
Counsel for the defendant claims that such a finding would be against the weight of evidence, because there was no possible way by which this port hole could have been opened after the vessel sailed if it was securely fastened before. We have the positive testimony, however, of an uncontradicted witness that he closed the port holes and securely fastened them. It is impossible to state just who entered this alleyway after the officer of the ship fastened the port hole. We have a fact testified to under oath that the port holes were closed and securely fastened before the vessel left San Francisco, and in the face of that testimony it would have been error for the court to hold that the jury were not authorized to believe it and base their verdict upon it because the court could not see how the port holes could subsequently become open if the testimony was true. *202Several requests to charge were made by counsel for the plaintiff which were charged by the court, and to which the defendant excepted. One of these requests, we think, required that there should be a new trial. The plaintiff requested the court to -charge : “ If you find that the ship was seaworthy on the 8th of August, 1881, when the policy went into force, the burden of proof is on the defendant, and the defendant must prove that the vessel subsequently became unseaworthy by reason of the willful fraud of the owner or the assured; otherwise, plaintiff is entitled to a verdict.” The court, in charging this request, imposed too great a burden upon the defendant. The rule is stated in Berwind v. Greenwich Ins. Co. (114 N. Y. 234) as follows : “ In every case of marine insurance, by a general policy covering all perils of the sea, where the vessel insured is in port, there is an implied warranty that the vessel is seaworthy at the inception of the policy. It is a condition precedent to the risk, and if the vessel is not seaworthy the policy does not attach. * * * The plaintiffs, under such a policy, make out a prima facie case by showing seaworthiness at the inception of the risk. But in time policies there is implied a warranty that the vessel will be kept in repair, and made seaworthy at all times during the continuance of the risk, so far as that is reasonably possible, and this implied covenant imposes upon the insured the duty of active diligence to keep the vessel in good order and in a seaworthy condition. It is doubtless true that, under a general time policy insuring against all perils of the sea, unseaworthiness subsequent to the attaching of the policy is a defense, the burden of proving which is upon the defendant, and that the plaintiffs need offer no proof thereof as a part of their case.” We think that the most favorable view to the defendant that can be taken upon the evidence in this case is that there was a question for the jury as to whether the vessel was seaworthy at the time of the inception of this risk, and that if the jury should find that she was, the burden was then upon the defendant of showing that, during the continuance of the risk, the assured did not exercise active diligence to keep the vessel in good order; and that, in consequence of the failure to exercise such active diligence, the loss occurred to defeat a recovery; but that is very different from a charge to the jury that the burden is upon the defendant to show that the vessel subsequently became unseaworthy *203by reason of the willful fraud of the owner or the assured. In fact, there was not a particle of evidence in this case that justified the finding of any fraud on behalf of the assured or any of its officers, by which this loss was occasioned. The most that could be said was. that some one was negligent. There were thus two questions to be submitted to the jury. One was whether the vessel was seaworthy at the time of the inception of the policy. The burden of proving that fact was upon the plaintiff, and that question was to be determined by the evidence in regard to the absence of some scupper or pipe to the hold of the vessel, hy means of which water could get to the pumps, and whether, in the absence of such pipes or scuppers, the vessel was unseaworthy. If the jury found that the vessel was then seaworthy, the question then would be whether or not she was unseaworthy at the commencement of the voyage in consequence of the neglect of the plaintiff actively to perform the duty-imposed upon him, of exercising active diligence to keep the vessel in a good and seaworthy condition.
Considering the charge as a whole, we do not think that that question was clearly submitted to the jury in such a way as to obviate the error in granting the plaintiff’s request to charge that the defendant must prove unseaworthiness by reason of the willful fraud of the owner, and that there must be a new trial.
The judgment appealed from is, therefore, reversed, and a new-trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., Patterson and O’Brien, JJ., concurred.