Page:Federal Reporter, 1st Series, Volume 6.djvu/580

 568 FBBBBAIi BEPOBTEB. �to great consideration, because of the learning and eminence of the judges before whom they were tried, where the question was directly considered, and instructions to the jury were delivered; but, unfortunately, they are in direct antagonism. Mr. Justice Story, in Tedmarsh v. Wash. Ins. Co. 4 Mason, 440, instructed the jury that the burden of proof to establish seawortbiness was upon the assured, while Mr. Justice Cur- tis, sitting in the same circuit, in the later case of Bullard y. Roger WiUiams Ins. Co. 1 Curtis 148, instructed the jury that the burden of proof was upon the insurer. The English cases favor the conclusion that seawortbiness is assumed as a fact, in the absence of oountervailing facts, and therefore that the assured is entitled to the benefit of the presumption. Watson V. Clark, 1 Dow, 336; Parker v. Potts, 3 Dow, 23. And in the recent case of Peckup v. Thamee Ins. Co,, decided by the high court of appeals in 1878, (L. E. 3 Q. B. Div. 594,) ail the judges agree that the presumption of law is prima fade in favoi of seawortbiness, and tHe burden of proof to the contrary is on the insurer. That was an action on a policy, and it was proved on the trial that the vessel put back from inability to proceed 11 days after she started on her voyage. The judge directed the jury that this circum- stance was sufficient to shift the omis of proof from the un- derwriter, and make it incumbent on the assured to prove that the unseaworthiness arose from causes ocouring subse- quently to setting sail. This was held to be error, ail the judges agreeing that the presumption is prima fade in favor of seawortbiness, and the burden of proof to show the con- trary upon the insurer. The same conclusion is sanctioned by the weight o'f authority in our own courts. Taylor v. Lowell, 3 Mass. 347; Paddock v. Franklin Ins. Co. 11 Pick. 227; Myers v. Oirard Ins. Go. 26 Pa, 192; Snethen v. Mem- phis Ins. Co. 3 La. Ann. 474. �In the present case, however, the jury were instructed that the burden of proof was upon the defendant to show unsea- worthiness when it appeared that the plaintifs had repre- sented that the vessel should be repaired at Yarmouth, and no repairs had in fact been made. It thus appeared tbere ��� �