SECTION VI.

OF LOSS BY BARRATRY.

What barratry is has been much disputed, and may not be yet quite settled; but we hold it to be any wrongful act of the master, officers, or crew, done against the owner.1 And any one who has an interest in the ship, cargo, or freight, may insure that interest against barratry.2

If an unlawful act be done without intention, or through inadvertence or ignorance, it is not barratry. The act must be wrongful in itself, and wrongfully intended; for if it be done in compliance with the owner's instructions or request, or with his assent, it is not barratry, even as against others who are injured by it. But it need not be done with an intention adverse to

1 Considerable discussion has arisen in regard to the meaning of this word. In very many of the cases it is defined to be a fraud, cheat, or trick on the part of the captain against the interest of the owners. See Knight v. Cambridge, 1 Stra. 581, 8 Mod. 230, 2 Ld. Raym. 1349; Phyn v. Royal Exch. Ass. Co., 7 T. R. 505; Stamma v. Brown, 2 Stra. 1173; Lockyer v. Offley, 1 T. R. 252; Vallejo v. Wheeler, Cowp. 143; Wilcocks v. Union Ins. Co., 2 Binn. 574; Earle v. Rowcroft, 8 East, 126; Wiggin v. Amory, 14 Mass. 1; Stone v. National Ins. Co., 19 Pick. 34; Crousillat v. Ball, 4 Dallas, 294. In Patapsco Ins. Co. v. Coulter, 3 Pet. 222, many of these cases were examined by Mr. Justice Johnson, and the points on which they turned were shown not to warrant the language used. The learned judge seemed to prefer the very excellent definition given by Emerigon, which he translated, "acting without due fidelity to

the owners."

2 Stone v. National Ins. Co., 19 Pick. 34. The mate in this case insured his adventure against barratry of the master and mariners, and recovered for a loss occasioned by the theft of the crew.

As the unintended violation of a blockade. Dederer v. Delaware Ins. Co., 2 Wash. C. C. 61. In one case, a vessel having sprung a leak, the captain put into port, and before a survey broke up her ceiling and end bows with crowbars, in consequence of which the ship was much injured and weakened. It was suggested that this was done to procure the condemnation of the vessel. Lord Ellenborough said: "In order to constitute barratry, which is a crime, the captain must be proved to have acted against his better judgment; as the case now stands, there is a whole ocean between you and barratry." Todd v. Ritchie, 1 Stark. 240. And if a neutral vessel is captured and sent in for condemnation, and the crew desert, such desertion is not barratry on their part. Messonier v. Union Ins. Co., 1 Nott & M'C. 155.

Nutt v. Bourdieu, 1 T. R. 323. In Thurston v. Col. Ins. Co., 3 Caines, 89, it

the owner; for if the master or mariners violate any law in the belief that it will be for the owner's advantage, but without his instruction or request, this is barratry, because such an act is wrongful, against the owner, inasmuch as the master had no right to infer that the owner would desire or assent to a violation of law, even if it might be for his benefit.1 Generally, however, if an act is done for the benefit of the owners, although through a mistaken idea on the part of the master, it is not barratry. But if a master undergoes any extraordinary and evitable peril, from no necessity whatever, but in the belief that it might be advantageous to his owner, a loss arising from this risk would be a loss by barratry. So if the act were done by the master for his private and personal benefit. And the extreme violation of duty or gross negligence might be barratrous, although committed without fraud or intentional wrong, and with no purpose of personal gain, and with no desire to injure any one. And it is said that mere nonfeasance, as not

was held that if an assured be apprised by his master of his pursuing another voyage than that insured, and do not disapprove of it, it is only a deviation and not barratry, though the master ultimately runs away with the ship, sells her and embezzles the proceeds. See also, Ward v. Wood, 13 Mass. 539; Everth v. Hannam, 6 Taunt.

375.

1 Earle v. Rowcroft, 8 East, 126.

2 In Dederer v. Delaware Ins. Co., 2 Wash. C. C. 61, an American vessel was captured by an English frigate on the ground that war had been, or soon would be declared between the countries to which the vessels respectively belonged. The captain, apprehending the loss of the vessel, and all he had on board, and that he would be imprisoned, made an attempt to rescue the vessel, and failed. This attempt was the cause of the condemnation. The court held that if he acted for the benefit of his owners, his act would not be barratrous, otherwise if he acted for his own good exclusively. See also, Crousillat v. Ball, 4 Dall. 294; Hood v. Nesbitt, 2 Dall. 137, 1 Yeates, 114, a deviation to rescue a vessel which had been run away with, was held not to be barratrous; the captain intending to give the reward to his owners. See also, Elton v. Brogden, 2 Stra. 1264.

8 As where the captain deviated for a private purpose of his own. Ross v. Hunter, 4 T. R. 33; Vallejo v. Wheeler, Cowp. 143, Lofft, 631. See Dederer v. Delaware Ins. Co., 2 Wash. C. C. 61, note 2, ante; Roscow v. Corson, 8 Taunt. 684. In Kendrick v. Delafield, 2 Caines, 67, it was held that if a loss is shown to have taken place by the fraudulent act of the master, the presumption is that he did it for his own benefit, and in the absence of proof to the contrary, the plaintiff may recover, although the act was the boring of holes in the vessel.

4 In Heyman v. Parish, 2 Camp. 149, the pilot testified that the captain sailed with a foul wind, contrary to his directions, and that the ship having been stopped when going on shore by getting out an anchor, the captain cut the cable and allowed her to

resisting or preventing an injury to the property when this might have been done, may be barratrous. And barratry has been extended so far as to apply to all carriers by land as well as by water. If the policy excepts, or if the insured warrants against barratry, it would probably be construed only as an

drift upon the rocks. Park, for the defendant, suggested that there did not appear to be any fraud. Lord Ellenborough said: "This is not necessary. It has been solemnly decided, that a gross malversation by the captain in his office is barratrous," referring to Earle v. Rowcroft, 8 East, 126. So "if the master, knowing the inevitable danger of capture if he proceed on his voyage, should, notwithstanding, continue it, and expose the vessel to certain seizure, this will be a loss, not arising from the perils insured against, but from a criminal breach of the duty he owes to his owners, which is barratry." Per Parsons, C. J., in Richardson v. Maine F. & M. Ins. Co., 6 Mass. 102, 117, 121. So barratrously carrying a cargo into a blockaded port. Goldschmidt v. Whitmore, 3 Taunt. 508; Calhoun v. Ins. Co. of Penn., 1 Binn. 293, 321. See Vos v. United Ins. Co., 2 Johns. Cas. 180. And cruising and taking a prize contrary to instructions is barratry, although the captain libelled the prize for the benefit of his owner as well as himself. Moss v. Byrom, 6 T. R. 379. But see Wiggin v. Amory, 14 Mass. 1. Collusion by the captain to have his ship captured, is barratry. Arcangelo r. Thompson, 2 Camp. 620. So, if the ship and cargo are taken out of their course and fraudulently sold. Dixon v. Reid, 5 B. & Ald. 597, 1 D. & R. 207; Jones v. Nicholson, 10 Exch. 28, 26 Eng. L. & Eq. 542. Or wilfully running the ship on shore without necessity. Soares v. Thornton, 7 Taunt. 627. But if a master should run the vessel on shore, or cut away his masts, with a bonâ fide intention of saving the ship and cargo, this would not be an act of barratry, although it should turn out that the sacrifice need not have been made. Smuggling is barratry. Vallejo v. Wheeler, Cowp. 143; Am. Ins. Co. v. Dunham, 12 Wend. 463, 15 id. 9; Mariatigui v. Louisiana Ins. Co., 8 La. 65; Lockyer v. Offley, 1 T. R. 252. In Brown v. Union Ins. Co., 5 Day, 1, resistance to search, and rescuing and retaking a vessel, were held to be barratrous acts. See also, Wilcocks v. Union Ins. Co., 2 Binn. 574. So, if the captain should sail out of port without leave, in breach of an embargo, in consequence of which the owners afterwards sustained a loss, in respect of seaman's wages and provisions, by the detention of the ship, such an act would probably be held to be barratrous. Per Lord Ellenborough, C. J., in Earle v. Rowcroft, 8 East, 126, 138, citing Robertson v. Ewer, 1 T. R. 127.

1 In Patapsco Ins. Co. v. Coulter, 3 Pet. 222, 234, Mr. Justice Johnson said: "Certainly a master of a vessel who sees another engaged in the act of scuttling or firing his ship, and will not rise from bis berth to prevent it, is primâ facie chargeable with barratry. Although a mere misfeasance, it is a breach of trust, a fault, an act of infidelity to his owners. So, if in (the) height of a storm, the captain and crew turn in without resorting to the nautical precautions of laying the vessel to, and otherwise preparing her to overcome the peril, it will be left to a jury to determine if such conduct be not barratrous." And a neglect to pay port duties before the ship sailed, has been held to be barratry. See Knight v. Cambridge, 1 Stra. 581, 8 Mod. 230, 2 Ld. Raym. 1349. In the different reports of this case, the nature of the barratrous act is not stated; but in Vallejo v. Wheeler, Cowp. 143, it is said to have been the neglect to pay duties.

assuming by the insured of the risk of barratry; if, therefore, an act of barratry took place, the insurers would not be liable; but they would not be discharged from further responsibility, because the warranty against barratry would be held to mean only that the insured could make no claim because of it.

A deviation may not be barratrous, and generally is not;1 but if the deviation be barratrous, and the insurers insure against barratry, then the act operates not as a deviation but as barratry. That is, the insurers would be liable for a loss caused by it; and would also be liable for a subsequent and independent loss; because this deviation, being an act of barratry and so insured against, would not discharge them.2

A stipulation, that the underwriters shall not be liable for seizure or detention on account of illicit or prohibited trade, does not render them less responsible for a seizure occasioned by barratry.3 So also, as to a warranty of neutrality.

It is said, that a barratrous act must be done without the owner's assent; and this rule extends to all quasi owners, or to those who have the vessel for the time under their control and govern

1 Phyn v. Royal Exch. Ass. Co., 7 T. R. 505; Thurston v. Col. Ins. Co., 3 Caines, 89; Wiggin v. Amory, 14 Mass. 1. So, where the captain deviated by reason of a misunderstanding of his instructions. Bottomley v. Bovill, 5 B. & C. 210, 7 D. & R. 702. In Stamma v. Brown, 2 Stra. 1173, the vessel was advertised to be going to Marseilles, and a bill of lading, signed by the master to go there direct, was given to the plaintiff, who thereon insured his goods. Before the ship sailed she was advertised to go to Genoa, Leghorn, and Naples, and the plaintiff's agent was told that it was intended to go to these ports first, and then to come back to Marseilles. He however insisted that the vessel should go direct. The chief justice charged the jury that this being against the express agreement to go first to Marseilles, seemed to be more than a common deviation, being a formed design to deceive the contractor, but on the jury asking whether, if the master was to have no benefit by his act, but went only to the other ports first for the benefit of the owners, that would be barratry, the chief justice said no, and a verdict was found for the defendant. It is not barratry for the master to omit to make practicable repairs, or to transship the cargo, unless in so acting his purpose was to injure his owners. Stewart v. Tennessee M. & F. Ins. Co., 1 Humph. 242.

2 See ante, p. 240, n. 3.

3 Am. Ins. Co. v. Dunham, 12 Wend. 463, 15 id. 9; Suckley v. Delafield, 2 Caines, 222; Calhoun v. Ins. Co. of Penn., 1 Binn. 293.

Wilcocks v. Union Ins. Co., 2 Binn. 574, 579; Brown v. Union Ins. Co., 5 Day, 1. And where the ship was insured in any lawful trade, it was held, that the underwriters were liable for a loss which happened by the barratry of the master by smuggling, the words "lawful trade," being considered to mean the trade in which the ship was sent by the owners. Havelock v. Hancill, 3 T. R. 277.

ment as owners usually have. And if owners, or quasi owners, are themselves in default, in not preventing an act which would be barratrous, this is equivalent to their assent.1 So, if the master is the sole owner of the ship, he cannot commit barratry against other parties in interest as shippers of goods,2 or as charterers.3 But it seems, that a captain who is a part-owner, may commit barratry against his other part-owners, and also against a char

terer.4

If the insurer wishes to avail himself of the fact that the owner was master, he must prove it; and it is not necessary for the insured to prove negatively, that he was not the owner.5 If the master has an equitable title to the vessel, he cannot commit barratry. But a fraudulent title will not prevent his acts from being barratrous. Nor can the master commit barra

1 Pipon v. Cope, 1 Camp. 434.

2 Taggard v. Loring, 16 Mass. 336; Lewen v. Suasso, Postleth. Dict. art. Assurance, 147; Barry v. La. Ins. Co., 11 Mart. La. 630.

Marcardier v. Chesapeake Ins. Co., 8 Cranch, 39.

* Jones v. Nicholson, 10 Exch. 28, 26 Eng. L. & Eq. 542. The vessel in this case, was owned by two brothers, one of whom sailed as captain. A charter-party was entered into with the defendant, and the goods shipped in pursuance thereof were insured by the plaintiff. The captain ran away with the vessel and goods, and the plaintiff paid the loss, on the supposition that the vessel had been lost at sea, but on ascertaining the facts in the case, brought an action against the charterer to recover back the money paid, on the ground that he was not liable for the barratry of the master, he being an owner, but the court held, that the action could not be maintained. Alderson, B., said, that "a sole owner cannot commit barratry, but a part-owner may. If it be not barratry, it may be within the other words of the policy." Platt, B., said: “The loss was consequent on an act of knavery by the captain; and is not that a fraud upon the other owners, who have separate rights to their several shares?" Martin, B., was of opinion, that the loss was within the general terms of the policy. The question came up in Scotland, in 1839, in the case of Strong v. Martin, 1 Dunl. Bell, & Mur. Sess. Cas. 1245. The vessel was owned by two persons as part-owners. One of them acted as captain and committed the alleged act of barratry. The court having desired the opinion of English counsel, that of Sir William Follett was obtained, and in accordance therewith, the innocent part-owner was held entitled to recover to the amount of his interest.

5 Ross v. Hunter, 4 T. R. 33; Steinbach v. Ogden, 3 Caines, 1; Barry v. La. Ins. Co., 11 Mart. La. 202.

Barry v. La. Ins. Co., 11 Mart. La. 630.

* Steinbach v. Ogden, 3 Caines, 1. In this case, the master ran away with the vessel, procured a fraudulent survey and sale, and became the purchaser. He then entered into a contract of affreightment with the plaintiff, who acted in good faith, and had the goods insured by the defendant. The captain barratrously disposed of these goods, and the insurer was held liable.