CASES ARGUED AND DETERMINED IN THE SUPREME JUDICIAL JUDICIAL COURT, IN THE COUNTY OF SUFFOLK, MARCH TERM, 1817 A fraudulent purpose, or criminal act, is essential to an act of barratry in the master of a ship. ASSUMPSIT upon a policy of insurance upon effects on board the ship Volant, from her port of lading in France to her port of discharge in the United States. The policy was in the usual form, dated July 9, 1812, and the subscription of the defendant was for 1000 dollars. The declaration contained several counts. A trial was formally had on the count in which the plaintiffs aver a loss by capture. Upon that trial, the stopping and recapturing an American vessel, which was in possession of the British, as a prize, was held to be a deviation which discharged the underwriters. (1) (1) Vide vol. xiii. p. 118 WIGGIN & AL. vs. AMORY. There was also a count for a loss by the barratry of the master in so stopping and recapturing the said vessel. Upon this last count a trial was had before Parker, C. J., at the last November term, in this county. [ * 2 ] *The facts proved at this trial were as follows: The Volant was captured, on her homeward voyage, by the British, carried to Halifax, and there, with her cargo, libelled and condemned as prize; war at that time existing between the United States and Great Britain. Before the ship sailed from Bayonne, where she had been a long time detained, from the difficulty of obtaining permission to unlade her outward and take on board her homeward cargo, the master applied for, and obtained from the American minister, a commission and letter of marque, and increased his armament from four to fourteen guns, and his crew from twenty-five or thirty to seventy men. The ship and outward cargo were addressed to the house of Morton & Russell, merchants in Bourdeaux, and they were con sulted by the master and a Mr. Bartlet, who went out as joint supercargo of the Volant, (but was not the agent or consignee of the plaintiffs,) as to all important proceedings concerning the ship or voyage, and particularly as to the propriety and expediency of taking the commission aforesaid. Their advice was, to take the commission, it being understood, as was testified by the master and the said Bartlet, that the commission was to be taken, and the armament increased, for the purpose of defence only. There were, however, no written directions, tending to restrict the use of the commission; there being no other orders than those which were given at the commencement of the outward voyage, which were to proceed home from France, on the return voyage, as expeditiously as possible. After being out three or four days from France, a vessel was descried, which was supposed to be standing for the Volant; and attempts were made to avoid her. But the two vessels having approached so near to each other as to enable the master of the Volant to ascertain that the supposed enemy was of little force, he wore ship, and demanded a surrender, which was made, and possession of the vessel, which proved to be the American brig [3] Criterion, lately captured by the British, was taken by the master of the Volant, who took her crew on board of his ship, manned the prize, and ordered her for France, where she arrived, and was condemned. The time consumed in taking and manning the brig was between two and three hours; which was the delay which, on the former trial, was held to be a deviation. There was no cruising, and no chase, other than what is above stated. * WIGGIN & AL. vs. AMORY. The jury were instructed by the chief justice, that the taking of a commission, and arming the ship, was not barratry, as it was done with the advice and consent of the merchants in Bourdeaux, who were the agents of the owners of the ship, and also with the consent of Mr. Bartlet, who was joint supercargo; and that there being no cruising and no chase, the stopping to take a prize, which came in the way, of the Volant as aforesaid, although a deviation, because not authorized by the policy, was not barratry; it not appearing that the master was prohibited from so using his commission, or that he had intended to prejudice the interest of the owners of the ship, or that it was contrary to his duty to them. A verdict being returned for the defendant, the plaintiffs moved for a new trial, on account of the said direction. Shaw, for the plaintiffs, contended that the facts proved the master of the Volant to have been guilty of barratry, and that, the assured in this case not being owners of the vessel, the underwriters were by the terms of the policy, liable for a loss arising from that cause. * Later decisions have much enlarged the signification of the term barratry. Formerly it was holden that, to constitute this offence, the act must be for the benefit of the master, as well as injurious to the owners. But it has been since held that any act of fraud or negligence of the master, by which a loss is occasioned, amounts to barratry. (2) Thus, in the case of Ross vs. Hunter, (3) the mere dropping anchor with a fraudulent intent was an act of barratry, because contrary to his duty and instructions. [ 4 ] The case of Moss & Al. vs. Byrom (4) was very similar to the case at bar, in its facts. The taking a prize, when the orders were to proceed with all expedition, was held to be barratry, although the prize was libelled for the benefit of his owner, as well as of the master; thereby excluding all idea of an injurious intent on the part of the master towards his owner. Nor is it necessary that the loss should follow directly as a consequence of such barratrous act. (5) In Earle & Al. vs. Rowcroft, (6) Lord Ellenborough, after an examination of all the cases, lays it down that the breach of orders, even in the endeavor to advance the interest of his owners, is barratry, in the master. The decision in this case is adverted to, and recognized, in 2 Campbell's N. P. Rep. 149. As to the advice of Bartlet, it is enough to say that he was not the agent of the present plaintiffs. As supercargo, he had nc (3) 4 D. & E. 33. (2) Marsh. B. 1, c. 13, § 6. (4) 6 D. & E. 33. (6) 8 East, 126.- See, also, 2 Caines's Rep. 67, Kendrick vs. Delafield.— Marsh 534, Condy's ed., Wilcox vs. Union Ins. Company. WIGGIN & AL. vs. AMORY. power in the case. Nor had Morton & Russell any authority to instruct the master as to the navigation of his ship. And if it had been otherwise, they did in fact advise to the arming, solely for the purpose of defence, not of capture. The breaking out of the war, while it may justify the arming and taking the commission, yet it made the orders for despatch on the passage still more important and binding on the master. These orders were not countermanded, nor their force impaired, by any communications from the agents in France. The delay for an hour, in violation of these orders, was as properly a barratrous deviation as chasing or cruising would have been. Amory, for the defendant, insisted that an act of the master, to be barratrous, must arise er maleficio, and be a wilful breach of orders, and injurious to the owners; and he argued that the facts in the case at bar by no means came within this description. PARKER, C. J., delivered the opinion of the Court. In this case, the verdict, which had been returned for the plaintiff's, [5] having been set aside, and a new trial * granted, on the ground that the act of stopping to man a prize, which act occasioned a delay of two or three hours, was a deviation, the plaintiff's have attempted, on a second trial, to prevail upon the same facts, on the ground that the deviation proved was a barratrous act on the part of the master; and so that the assured, not being owners of the vessel, but merely shippers of goods, are, by the express terms of the policy, entitled to recover. The verdict was, however, returned for the defendant, in conformity with the direction of the judge, who charged the jury, that the facts proved did not show any wilful breach of duty towards the owners, on the part of the master, nor any fraud or criminality in him. The question submitted to us, by the motion for a new trial, which has been fully and ably argued, is, whether the charge to the jury was right in point of law; or, rather, whether the facts proved in the case did not require a charge, that an act of barratry had been committed by the master in the transaction, which has already been declared by the Court to be a deviation. The question is of importance, and not altogether free from difficulty; but as we have unanimously come to a result satisfactory to our own minds, we do not think it proper to keep the parties in suspense upon a question highly interesting to them, for the sake of giving a more perfect statement of the reasons which have brought us to this result, than the present opportunity will enable us to do. Our opinion is, that the act alleged to be barratry was a simple deviation, and not barratry. That every deviation is not barratry, was solemnly decided in the last case, in which the subject has WIGGIN & AL.. os. AMORY. been discussed in the Court of King's Bench in England — the case of Earle & Al. vs. Rowcroft, in which Lord Ellenborough examined all the preceding decisions, and came to the conclusion, which is warranted by a scrutiny of all the authorities, that it is essential to the offence of barratry, that the act complained of should be either criminal or fraudulent on the part of the master. * Some of the cases cited by the counsel for the plain- [* 61 tiffs, considered separately, and without relation to other cases settled with at least equal solemnity, certainly give color to the doctrine that every act of the master, which is contrary to his duty to his owners, and which may be prejudicial to them, is barratry, although accompanied with no crime or fraud, and even although done with an honest intention to promote their interest. But we apprehend, if these cases are carefully inspected, they will be found not to militate with the rule laid down in Earle & Al. vs. Rowcroft. The strongest case cited for the plaintiffs is that of Moss vs. Byrom. There the master had taken a letter of marque, for the sole purpose of enticing seamen to ship for his voyage, and without any intention to use it for any other purpose; he not having taken certain documents, which were necessary to authorize him to act under his commission. But on his voyage, with the assent of his crew, he stopped and plundered an American vessel, having previously determined to cruise for prizes. Afterwards he cruised for some days out of the course of his voyage, and captured a vessel, which he sent into port, whither he followed her, and libelled her as prize, as well for the owners as himself. Aware that he had done wrong, he directed that his cruising should not be mentioned in the log-book. In an action against the underwriters, for a loss ny barratry of the master, they were held liable; and it was considered that the stopping to plunder the American vessel was in itself barratry, because contrary to his duty to his owners, who were bound by charter-party to proceed with the ship to Liverpool as speedily as possible. It is not stated in the case that the act was held to be either criminal or fraudulent on the part of the master; but the decision seems to be placed upon the ground that he had acted contrary to his duty to his owners, and to their prejudice. The defence made by the underwriters was, that the conduct of the inaster did not amount to barratry, because it did not appear that he intended to prejudice the interest of his own- [*7] ers. But the court determined that it was immaterial what his intentions were, provided he had violated his duty. If this case stood alone, it would go far to support the plaintiffs' claim in the present action; for, although it is difficult to exculpate VOL. XIV. 2 13 |