48 FEDERAL nnrorvrm.
her need of repairs at St. Thomas, where the bottomry bond was ex-
ecuted. The facts affecting the question of the seaworthiness of the
ship at Bio were not at first known to the insurers. When they were,
in a measure, apprised of the facts, the counsel of the insurers stated
to the libelants that these facts raised a question concerning their
liability as insurers, although not material in the pending litigation.
But that merely afforded to the insurance companies an additional
ground of defense as insurers of the cargo. Considering the diHicul·
ties of establishing that defense before a jury, the insurance compa-
nies could not be considered as wholly indifferent whether the claim
on bottomry was defeated upon- another ground. The assistance of
the insurance companies in the former litigation for a time, in no
way misled the libelants, or induced them to incur any expense which
they would not otherwise have incurred. There is no element, there-
fore,—of estoppel in the case; nor do I find anything in the circum-
stances that precludes an inquiry into the seaworthiness of the vessel,
which is for the nrst time presented in this suit. On that point the
evidence of the master, whose deposition was taken in this suit, but
who was not examined in the former suit, is very strong, and shows
clearly that the vessel was grossly unseaworthy when she sailed.
There are several considerations which suggest a suspicion of great ex-
aggeration in the master's testimony; but, after making all possible
allowances for such exaggeration, the undisputed facts concerning the
condition of the vessel when she arrived at St. Thomas, and the ab-
sence of any severe weather on her passage, would seem to necessi-
tate the inference that she was unseaworthy when she left Rio. When
sailing in only a fresh breeze, as it would appear, nrst her topmast, p
and then her cross-trees, gave way and fell down, and portions of the
forernast were carried away. The testimony is that they were ex-
ceedingly rotten, and many parts of the hull were in a similar condi-
tion. Such extraordinary accidents require explanation, or the vessel
must be held to have been unseaworthy when she sailed. No expla-
nation was given; and it is not suggested that a satisfactory expla-
nation through any extraordinary weather, or other cause, could be
proved. I am obliged to hold, therefore, that the vessel was unsea-
worthy when she left Rio; that the respondents never became liable
upon the policies ; and, consequently, that they are not answerable for
the expenses claimed. The libel is therefore dismissed, with costs.