Page:Federal Reporter, 1st Series, Volume 6.djvu/579

 LUNT W. BOSTON MAIHNB INS, CO. 567 �indicating the contrary; and as it is quite uunecessary to make proof of facts which will be asBumed to exist in the Absence of proof, it bas been held in many cases that the onus of proving unseaworthiness ia on the party that alleges it. Out of this conflicfc of opinion the commentators have de- ^iuced still another, which bas been approved by high authcir"- ity, but never adjudgedwhen necessarily under consideration in the particular case. Mr. Justice Duer, in Moser v. Sun Mut. Ins. Co. 1 Denio, 176, saye the true rule deducible from s, fuU comparison of the cases appears to be that stated by Mr. Arnould, (2 Arn. on Ins. § 447, p. 1345 :) "The assured is bound to aver and prove that the ship was seaworthy when the risk commenced, but the proof to be given by him in the first instance need not be particular and full, Although «light and general, if not oontradioted it is deemed suflucient, «nd when given it shifts.the burden upon the underwriter. " �Mr. Phillips, af ter stating that seaworthiness is saidito be presumed in divers cases, says: "Whether, however, it is to be proved in the first instance by the assured, or is to be pre- sumed, is usually of very little practical importance, since the proof required in such qase is necessarily only of a general «haraoter, and may ordinarily be readUy had." 1 Phil. on Ins. § 724. In the present case, where the t«stimony left the fact in grave doubt, the unsatisfactory eharactex of this mid- dle view is well illustrated. The burden was on the one side or the other to overcome a presumption, either of law or of fact, and the court was required to decide where the burden rested; and in a doubtful case like this the ruling might well be decisive with the jury. If the onus is shifted from. the plaintiff to the defendant, when the former has given "slight and general proof" of seaworthiness, it would seem to. bo shifted back again when the latter has given proof which is more cogent, and thus the court would be required to .deter- mine a question of fact upon conflicting evidence before instructing the jury upon a question of law. It is a safer rule, because capable of. a more certain application^to hold ^hat the one party or the other bas the onusioi proof. ' .• �Tbere are two cases in thfe federal courts which areentitled ��� �