The opinion of carpenters who have re paired the vessel, however they may strength en the presumption that the ship is sea worthy, when it is favorable, is not conclu sive of the fact of seaworthineSs ; 4 Dowl, 269. The presumption prima facie is for sea worthiness ; 1 Dowl. 336. See Earnmoor v. Ins. Co., 40 Fed. 847. And it is presumed that a vessel continues seaworthy if she was so at the inception of the risk; Martin v. Ins. Co., 20 Pick. (Mass.) 389, 32 Am. Dec. 220. Where nothing is said on the subject, sea worthiness is an implied condition of a hir ing of shipping; Lyon v. Tiffany, 76 Mich. 158, 42 N. W. 1098. Any sort of disrepair left in the ship, by which she or the cargo may suffer, is a breach of the warranty of seaworthiness. A deficiency of force in the crew, or of skill in the master, mate, etc., is a want of seaworthi ness ; 1 Camp. 1; Draper v. Ins. Co., 4 Duer (N.Y.) 234 ; Holland v. Seven Hundred & Twenty-Five Tons of Coal, 36 Fed. 784. But if there was once a sufficient crew, their temporary absence will not be considered a breach of warranty; 2 B. & Ald. 73 ; Silva v. Low, 1 Johns. Cas. (N. Y.) 184 ; McLanahan v. Ins. Co., 1 Pet. (U. S.) 183, 7 L. Ed. 98. A charge of unseaworthiness by reason of the pilot's intoxication is not sustained when there is no evidence that he was not perfect ly capable when the vessel left port, or, if he was not, that the master knew the fact, and where the pilot, when sober, was one of the best ; Earnmoor S. S. Co. v. Ins. Co., 44 Fed. 374. A vessel may be rendered not sea worthy by being overloaded ; 2 B. & Ald. 320; or by having a defective compass; Richelieu Nay. Co. v. Ins. Co., 136 U. S. 408, 10 Sup. Ct. 934, 34 L. Ed. 398. The burden of the proof of seaworthiness is' on the one who alleges it; 3 Q. B. Div. 594 ; but in The Southwark, 191 U. S. 1, 24 Sup. Ct. 1, 48 L. Ed. 65, it is held that the burden is on the owner to prove seaworthiness (citing the definition here given). The fact that a ship after being
eleven hours at sea in fair weather began to leak so that she was obliged to run for a har bor of refuge, is sufficient to throw the bur den of proof on the carrier even if it is not sufficient • proof of unseaworthiness; The Queen of The Pacific, 75 Fed. 74.
A presumption of unseaworthiness is not rebutted by evidence of previous diligence nor by the proof of subsequent storms or per ils of the sea, and where the bill of lading con tains no exception 'as to seaworthiness the owners are not entitled to the benefit of the 1Harter At ; Carolina Portland Cement Co. v. Anderson, 186 Fed. 145, 108 C. C. A. 257.
An underwriter who knows the age and defective condition of a vessel, and charges nearly a double premium, cannot set up un seaworthiness as a defence ; Farmers' Feed Co. of N. Y. v. Ins. Co., 162 Fed. 379.
It can never be settled by positive rules of law how far this obligation of seaworthi ness extends in any particular ease, for the reason that improvements and changes in the means and modes of navigation frequent ly require new implements, or new forms of old ones; and these, though not necessary at first, become so when there is an estab lished usage that all ships of a certain quail ty, or those to be sent on certain voyages or used for certain purposes, shall have them ; 2 Pars. Marit. Law 134. Seaworthiness is, therefore, in general, a question of fact ; The Northern Belle, 9 Wall. (U. S.) 526, 19 L. Ed. 746 ; Palmer v. Ins. Co., 116 N. Y. 599, 23 N. E. 5.
The carrier of passengers by sea does not assume the same responsibility as to seawor thiness as the carrier of freight. He is held to a very high degree of care, prudence and foresight, but there is no implied warranty of seaworthiness at the beginning of the voy age ; The Oregon, 133 Fed. 609, 68 C. C. A. 603 ; so in England ; Machlachlan, Merchant Shipping 354.
See HARTEB Acr; SHIP.