John D. Wilson vs. General Mutual Insurance Company, 12 Cush. 360

Shaw, C. J. Assumpsit on a policy of insurance by Wilson, for himself, and whom it may concern, on the bark Harriet, and outfits, on a whaling voyage from Freetown, during her cruising, &e., until her return to Freetown. The ground of loss relied on was, the barratry of the master. On opening the cause, it appeared that Joseph Durfee, the master for the voyage, was part owner of the vessel, and, indeed, his name appears upon the policy, as one of the persons, for whom the insurance was made.

No other loss being charged, within the perils insured against, except barratry of the master, a nonsuit was directed, subject to the opinion of the court; on the ground that barratry could not be committed by the master, so as to charge the underwriters with the loss, if the master was himself part owner of the vessel. A motion is now made to set aside the nonsuit, because such direction was incorrect in point of law, and this motion has been argued by counsel.

Had this been a Boston policy, the question could hardly have arisen, because we believe these policies have long contained a clause, by which barratry of the master is included amongst the perils insured against, but qualified with this limitation, “unless the assured are owners of the vessel.” But this is said to be a policy in the New York form, in which barratry of the master is insured against in general terms, without any such exception or qualification.

This being a policy, in which loss by barratry of the master is one of the perils insured against, the only question is, whether a master, who is himself part owner, can commit barratry.

It is conceded, that if he were sole owner, he could not commit barratry, and although he may commit various wrongful, fraudulent, illegal, and injurious acts, affecting the rights of shippers of goods, consignees, and others, still it would not be barratry; because barratry, ex vi termini, as used in English and American policies, means fraudulent and injurious conduct by the master, acting in the relation of master to the owner, contrary to the orders and instructions, against the interest and rights of the owners, and without their consent; which cannot be done, if he is owner as well as master.

He cannot commit a fraud upon himself, he cannot act without his own knowledge and consent, and, therefore, cannot commit barratry; but it is contended that the same reasons do not exist, where the master is part owner only. No case has been cited, English or American, it is believed, which warrants this distinction, nor do we think it warranted by the principles which govern the rights of parties, in regard to barratry, as a peril insured against.

Perhaps there is no reason, a priori, why those who have policies on cargo or on goods, and who have no voice in the appointment or removal of the master, or giving him authoritative instructions respecting the navigation of the ship, and the conduct of the voyage, should not be insured as well against the fraud and mis conduct of the master in all cases, as against the like conduct of the master, where he does not happen to be owner; but the distinction has been long established, is well understood, and, therefore, constitutes a part of the contract of insurance.

In the last case it is barratry, and, therefore, it is insured against by the words of the policy; in the former, it is not barratry, and, consequently, the underwriter is not liable for it. The subject of loss by barratry of the master, as a peril insured against, was recently considered in the case of Lawton v. Sun Mutual Ins. Co. 2 Cush. 500, in which most of the authorities on the subject were cited in the arguments of counsel, except the recent work of Arnould, since published. It is, therefore, unnecessary to cite the familiar

definitions of barratry at length: one or two only will be sufficient. In Nutt v. Bourdieu, 1 T. R. 323, it is defined; “ something criminal, committed against the owner by the master or mariners.” In Earle v. Rowcroft, 8 East, 126, it is said that in marine insurance, barratry is founded “ in the particular relation which subsists between master, mariners, and owners, by which a loss may happen to the subject-matter.” In Vallejo v. Wheeler. 1 Cowp. R. 143, the act of the master was held to be barratry, because he was acting for his own benefit, without the, consent and privity of the owner.

Acting for his own interest and against the interest of his owner, may be a strong circumstance tending to prove barratry, but is not an essential ingredient in that fraud or misconduct towards the owner, which constitutes barratry, but it must be without his consent or privity.

All the cases of barratry presuppose two distinct parties, that of owner, and master of a vessel, between whom certain relations subsist; and that out of this relation grow certain mutual rights, duties, and obligations ; and barratry is a violation on the part of the master, of some of these duties and obligations, by fraud or misconduct, from which a loss ensues, either of vessel or goods.

Against these losses, by the terms of the policy, the underwriter insures; but against similar wrongs, even if they go to the extent of running away with vessel and cargo, if the master be owner, the underwriters are not responsible; or if the acts are done with the authority, or under the express directions of the owners, the underwriters are not responsible, simply because they are not barratry, though equally injurious to third parties. The violation of {heir relative duties, being of the essence of barratry, we think it cannot be committed by a master, who is part owner.

Both relations of master and owner uniting in him, he cannot commit barratry, because he cannot commit any act without his own consent and privity. It was urged in the argument, as a reason why the part owner, and not the master, should be allowed to recover in this case, that the interests of part owners in a vessel are not joint, but several, that there is no legal privity between them, and they are to stand as if they owned by separate titles. But we apprehend this is mistaking the principle on which the rule is founded.

Separate owners of goods have no joint interest with each other or with the vessel; they have no voice in the appointment or removal of the master, and yet being insured against barratry, their rights are governed by the same rules, as those of ship-owners insured against the same peril. If the malversation amounts to barratry, they may recover, otherwise not; and the question, whether it is barratry or not, depends on the same consideration; viz • whether there is a violation of duty in relation of master t; owners.

We have said that we are not aware of any decided cap directly in point; we believe that the precise point has not been discussed, or drawn in question in any case. But the fact can hardly be said to be without authority. In the leading case, Nutt v. Bourdieu, 1 T. R. 323, it is pointedly stated by Lord Mansfield, that an owner cannot commit barratry. He may make himself liable for his fraudulent conduct to the owner of the goods, but not as for barratry. Mr.

Arnould, in his excellent treatise on insurance, says, after stating by and against whom barratry may be committed: “ Upon the same principle, it is clear, that barratry cannot be committed by a master who is owner or part owner of the vessel.” 2 Arn. on Ins. 837, and he cites Ross v. Hunter, 4 T. R. 33, and Marcardier v. Chesapeake Ins. Co. 8 Cranch, 39; 1 Phillips on Ins. § 1082. It was said in the argument, that the authorities cited do not warrant the conclusion stated in the text, because they were not the case of a part owner and master, in a case charging barratry.

We are inclined to think that this is correct; the passages, therefore, can only be regarded as an application of the principle to this particular case, by writers who have devoted much learning and time to the investigation of principles, and who have stated these as their results. The court are, therefore, of opinion, that the nonsuit was lightly ordered; the plaintiff, on his own showing, has no legal ground of action, and judgment must be entered for the de fendants.