The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1896-01-08

insurance, and Mr.. Thompson admitted
that the schooner sailed at the time stat
ed, that Captain Eaton was in command,
that they proceeded from point to point
as stated, and that Captain Eaton had at
the time a crew of six men. Is was also
admitted that Captain Eaton protested as
required by law, and that be and his
crew did make the point stated in the
libel after the schooner went down.
AT the afternoon session, Mr.. Thomp-
son called Albert B. Hall, Captain John
Humphrey and George Trefethen, the at
torney ane two of the directors of the
Marine Insurance company. Mr.. Hall
tesrtlfied to letters received from Captain
Eaton, regarding the loss of the schoon-
era, and to conversation he had with
him when he came to Portland Cap
tain Eaton made no mention then of the
suspicion he entertained that the loss of
the schooner was due to sunken log.
Captain Humphrey and Mr.. Trefethen
testified in the same line. and Mr.
Thompson put in the letters received by
Mr.. Hall from Captain Eaton his pro-
test, and wreck report
Mr.. Thompson spoke of the fact that
the schooner was 2S years old, and that it
had not been shown that she was ever
given thorough overhauling. H con-
tended that the reason she went down was
simply that she was not seaworthy. He
said: "From first to last, and even to-
day Captin Eat on has never claimed to
know what caused the accident He
does not know and does not pretend to-
Mr.. Ware felt a slight jar as he lay in
his berth, and the man at the wheel
thought he did also, but they differed
widely as to the time they heard it," He
argued that there was not q single bit of
evidence in the case to warrant the belief
that the schooner encountered any peril
of the sea against which underwriters
ever insure"
Mr.. Bird said that he regretted that
the attorney who began the case had not
been present to try it He admitted that
had the lookout been in court, he would
have said that he did not feel a jar, and
did not know what caused the loss of
the schooner. He read at some length
from an opinion in similar case by
Judge Hammond, and commended that the
schooner was in good condition, and that
she was lost because of some peril Of the
sea not proven, or to be asoertained at
this time, but falling within the scope
of the clause that provides against 10Th
er perils and misfortunes of the sea-
Judge Webb gave very close and in
teresting review of the evidence in the
case. He said that Captain Eaton evil
IDENTIFY believed she was sea worthy, and
as far as the carpenter who made repairs
on her could see, she was all right. Then
another carpenter an old man, fixed her
rail, and made other repairs, and he
thought her in good condition. and
shoe maker who owned a part interest,
walked down, looked her over and saio
she was all right They all thought so
and James Ware when he looked her over
before he shipped thought she was safe.
But there was an implied warranty that
she was sound and that she could safely
encounter the perils attending on her Or
binary business, and the fact that the de-
feet was unknown to Captain Eaton was
no excuse, the implied warranty must
stand.
Judge Webb spoke of the testim ony of
two of the crew that they felt a slight
jar, and said that it did not seem to him
of any value under the circumstances.
The way the leak gained, at the rate Of
an inch minute according to Mr. Ware,
was suffi clentsproof that the water did
not come in through a hole made in the
manner alleged. She was an old schoon-
er, and during the 20 years of her exist
ence had been gradually growing weaker.
until when the defect did develop. it was
very rapidly, almost at once and she
practically went to pieces. Judge Webb
decided in favor of the respondent, Mr..
Hall, as the representative of the under
writer's.