*501This case was decided in June 1860.

As the ship was at sea at the commence-

ment of the risk, there was clearly no warranty that she was then seaworthy. Capen v. Washington Ins. Co. 12 Cush. 517. Therefore the policy on the cargo and catchings did attach on the 1st of December 1855, the day named in the policy as the inception of the risk, the cargo not being then lost, and the vessel being capable of carrying and in fact afterwards carrying such cargo to a place of safety. The vessel was then found disabled to proceed further, and the master rightfully exercised his power as master to tranship the cargo at the risk of the insurers ; and the cargo being lost on that voyage, it was a loss within the policy. Judgment for the plaintiff.