M'Intire against Bowne, 1 Johns. 229

Thompson, J. delivered the opinion of the court. The loss claimed in this case is for the barratry of the master, and the right of the assured to recover will depend- on the ■ determination of the question, who is to be deemed owner of the vessel for the voyage ? It is not denied that the conduct of the master amounted to barratry, provided the assured is to. be considered as owner of the brig, for the voyage insured.

The plaintiff was the owner, but he had chartered the vessel to Aken & Brice, who, it is contended, must be considered owners pro hac vice; and the acts of the master, which are alleged as barratrous, having been committed, by the procurement, orders and directions of Brice, one of the hirers, would not constitute barratry. It appears that the assured equipped the brig, hired and put on board the master and crew, and paid them, furnished the provisions and other necessaries for the voyage.

There was also excepted out of the charter one half the cabin, and the privilege for twenty barrels on account of the mate and captain, and so much of the hold as might be necessary for the accommodation of the master, mariners, provisions, water and fuel for the crew. Under such circumstances, I should not consider Alien Brice as owners for the voyage.

By the charter-party the owner of the vessel covenants to tarry and deliver the goods ; he is, therefore, responsible for the conduct of the master and crew, and if there be a failure of delivery by reason of their misconduct, he is accountable.—The plaintiff retained the controul and management of the vessel, and was bound to keep her furnished with a competent crew. Barratry is something contrary to the duty of the master and mariners, the very terms of which imply, that it must be in the relation in which they stand to the owners, who are their employers, and whose orders they are bound to pursue.

I apprehend the distinction to be, that where, by the terms of the charter, the ship-owner appoints the master and mariners, and retains the management and controul of the vessel, the charter is rather to be considered as a covenant to carry goods ; but where the whole management is given over to the freighter, it is more properly a hiring'of the vessel for the voyage, and in such case the hirer would be deemed owner pro hac vice; 2 Atk. Paul v. Birch. This appears to me to he a rational distinction, and one, that is in no way contradicted, but rather sup<ported, by the case of Velleijo v.

Wheeler, Cowp. 142, Marsh. 455--6, so much relied on by the defendant’s counsel.—» According to Marshall"1 s report of that case,' the court laid down the distinction above taken, and considered the person having the controul of the vessel as owner ; that if a shin be let out generally to freight, the freighter is owner for that voyage, but if there be only a covenant to carry goods, the owner of the ship would have the direction of her, and the hiring of the master and mariners.

In Gowper's report of the case, it is stated by counsel, and not contradicted, that Darwin, the freighter, did appoint the master for the vopage ; and Mr. Jus. Aston in delivering his opinion says, the hulk of the ship belonged to Willes, but he had nothing to do with it, having chartered it to Darwin, and so the jury did right in considering him owner pro hac vice. Another question raised, though not much pressed on the argument of this case, related to the sufficiency of the preliminary proofso This objection appears to me not well taken.

The claim by the assured, when he abandoned, was fop a lpss by the barratry of the master, and he exhibited as preliminary proof of that loss, a paper purporting to be the heads of a protest by the master, and also a letter from the master to the plaintiff. The protest states how Brice, the supercargo, interceded, with, and eventually prevailed on the master to do, what is admitted to amount to barratry.

In addition to. which, it was proved that the abandonment was ■for barratry, and the witness understood the underwriters, as being satisfied with the preliminary proofs which had been exhibited, and it was thereupon agreed between the parties, that the plaintiff might make a further, insurance, without prejudice to his claims against the defendant; and that if the insurers on the original policy were liable, such new insurance should be for their benefit.

Under such circumstances, even admitting the documents exhibited, not to have been competent preliminary proofs I should consider the underwriter, as having waived his claim, to mope formal proof, and as admitting the loss as stated in.the heads of the protest, for the purpose of bringing up the question whether the circumstances would warrant a recovery for barratry. It would, I think, be extremely rigorous to turn the plaintiff round to. a new action on account of an objection, which must be considered as merely formal; .

The opinion of the court, therefore is, that the plaintiff is entitled to recover as for a total loss. Judgment for the plaintiff.