Page:Federal Reporter, 1st Series, Volume 6.djvu/575

 LUNT V. BOSTON MABINB INS. CO. 563 �6. BAja»— SEAWdRTHIHBSB— BUEDBN OF PrOOF. , �. HM, fv/rfher, that the fact of noa-compliance with such represen- tation 'imposed the burden of proving seawortlimeas upoa iJie as- sured;— [Ed. �Motion for New Trial. �Beebe, Wilcox e Hobbs, for plaintiffs. �Benedict, Taft e Benedict, for defendant. �Wallace, D, J. The plaintiffs having obtained a verdict, the defendant now moves for a new trial, p.lieging error ia the rulings of the court on the trial. , The action is on a con- traet for marine Insurance, evidenced by a certificate, whereby the defendant uudertook to insure the plaintiffs for $3,000. ou a cargo of potatoes on board the sohooner Lacon "at and from Yarmouth (Nova Scotia) to New York city." At the time the insurance was effected the vesse! was at Shelbufne, to which port she had put in leaking and in distress. Asur- vey was ordered at that port, and the vessel was pronounced unseaworthy., By an arrangement between underwriters, who had iiisared the cargo, and the plaintiffs, the insurance was cancelled, and plaintiffs were paid $2,000. They thereupon applied for new insurance to agents of the defendant. The defendant's agents refused to insure the cargo from Shelbarne, but agreed to insure from Yarmouth, to whioh port the vessel was to prooeed from Shelburne. �The action was defended upon the theory that the plaintiffs represented that the vessel should be repaired at Yarmouth, and no repairs were made ; also upon the ground of conceal- ment and of unseaworthiness. �It was not claimed upon the trial that there was a war- ranty in reference to the repairs, but that there was a prom- issory representation made orally, and in the application for insurance, that the vessel was "to be repaired at Yarmouth." Evidence was given by the plaintiffs that upon the veBsel's arrivai at. Yarmouth a new survey was had, and it was found upon examination that no repairs were required. The court ruled that the defence of concealment could not be predieated upon the failure of the plaintiffs to disclose the fact of survey at Shelburne, or the cancellation of the previous-insurance. ��� �