DEDERER v. DELAWARE INS. CO., 7 F. Cas. 341

WASHINGTON, Circuit Justice (charging jury). The first question is, whether the plaintiff is entitled to recover upon the count which states the loss to have proceeded from capture. The defendant admits the fact, but answers that the plaintiff has forfeited his warranty of neutrality, by the misconduct of ■ his captain; who,by an attempt to rescue the vessel, afforded a lawful ground for her condemnation.

To this defence the plaintiff replies, that the alleged misconduct of the captain took place after he was captured, and at a time when he was as much a servant or agent of the insurers, as of the insured; consequently, his acts could not prejudice the latter as between these parties. It is even argued by the plaintiff’s counsel, that the offer to abandon changed the condition of the parties, from the time of the capture, by relation; so that by that event, the captain became from that time the agent of the insurers.

It is true, that where a regular abandonment is made, the property vests in the insurer, by relation to the time of capture; but the captain continues to be the agent of the insured, until the abandoment is made.

His acts, subsequent to the capture, may operate as well to the advantage as to the disadvantage of the insured; it is his duty to do everything in his power for the preservation of the property committed to his care; and the clause in the policy, which permitted him to act for the best, to this end, without prejudice to the insurance, binds the underwriter to submit to the consequences of those acts, if performed for the benefit of all concerned.

But the introduction of this clause proves, that after a misfortune has happened, the captain continues to be the agent of the insured, who might by his conduct prejudice tlie claim of his principal for indemnity, if his acts for the common benefit of all concerned, were not sanctioned by the underwriters. This clause, however, grants only a special authority, and protects the insured only, when from the facts it appears he acted for the best for all concerned. But, can it be said that he acts within this authority, when he does that which the law of nations, and his duty to his owners, forbid?

Those who employed him are answerable to third persons for such conduct because they trusted him; not because such a power was impliedly given to him. But the insurers did not employ him, though they granted him a special authority to act in a particular event, and in a particular way; and it never can be said, that from this authority a power to do an unlawful act is implied. If the act be not unlawful, the question always is, did he act. for the best for all concerned? This is an inquiry proper for the consideration of the jury, upon the evidence submitted to them.

But if the act be unlawful, then it is unauthorized by the underwriter. That the attempt to rescue the vessel whs unlawful, and afforded a ground of condemnation, is proved by the opinions of the best informed jurists, and has received the. sanction of the common law courts in a variety of instances. The doctrine was indeed admitted by the plaintiff’s counsel, though said not to apply in this case; as' the captain acted under misinformation given him by the captors.

This excuse, however, will not do, as between the insurer and the insured; because the latter, before he can recover, must prove that he has strictly complied with the terms of his warranty. He cannot justify a breach of it, by alleging misconduct in third persons. Admitting the law to be so, the plaintiff then insists that the act which amounted to a breach of neutrality, proceeded from the bar-ratry of the master; against which the defendants have undertaken to protect him.

It is certainly strange, after the repeated instances in which the courts have been required to define the term “barratry,” a question should remain at this day as to the true import of it; and yet questions of difficulty frequently occur upon' this clause in policies, when particular cases are to be decided by the former

definitions of the term. The present case is one which admits of doubt, and has given rise to many ingenious arguments at the bar. Park defines barratry, “any act of the master, of a criminal • or fraudulent nature, or which is grossly negligent, tending to his own benefit, to the prejudice of the owners, without their consent.” The act must be fraudulent, and to the prejudice of the owners. If fraudulent, it is a criminal violation of the duty which the master owes to his employers.

It is not essential to constitute the act of barratry, that it should be to the interest of the master, but if it be so, that fact is evidence of fraud: so is gross negligence. If the question turn merely on the fraud, it will always be necessary to look at the motives and intention which influenced the act If the motive were to benefit the owner, it is an honest one, though it may be a mistaken one, and therefore the act cannot be called barratrous.

The case of a wilful deviation for the benefit of the owner, is an example which attests the truth of the principle; but if made for the benefit of the master, it would be

an act of barratry. The case of Moss v. Bryrom, as stated in Park, and the principle which he deduces from it, seem opposed to the above doctrine. But by referring to the case itself, in 6 Term R. 379, and to the explanations which the judges in Phyn v. Royal Exch. Ins. Co., 7 Term R. 505, have given of their meaning when deciding that case; it will be found not to oppose, but to support the opinion we have delivered. The judges declare, that what was said in Moss v.

Bryrom was in reference to the circumstances of tlie cause, which consisted of many acts of the captain of a criminal nature; and Ashurst adds that there is no case of barratry, merely because the act was against the interest of the owners; unlesfc done with a fraudulent or criminal intent. But no fraudulent intention may appear, and yet if the act be of a criminal nature it will be barratrous.

Marshall, it is true, says that no fault amounts to barratry, unless it proceed from an intention to defraud the owner; but he is not warranted in his position, by the case referred to, in which fraud was negatived by the jury. All the cases, when well examined, will show that if the act be fraudulent or criminal, it is barratry. But it does not follow, that every illegal act is a criminal one. For example; suppose the captain ignorantly commit a breach of blockade, or violate some foreign ordinance with which he is unacquainted: these acts would be illegal, but not criminal.

The illegality of the act, though no improper or fraudulent motive appear, may be prima facie evidence of fraud or of crime; but this presumption may be repelled by evidence. If, in reality, there was no fraudulent or criminal intention; no particular view to the personal benefit of the master, but an honest though mistaken motive to benefit his owners; the illegality of the act will not make it barratrous. Apply these principles to the present case.

The captain had received information from the captor, that there was or would be war between Great Britain and the United States; and this was assigned as the cause for the seizure. He declares, that under the impression of this fact, and from a fear of loss of personal liberty, as well as of his own property and that of his owners, he attempted the rescue. But whether he was really induced to this act by the belief that he was captured by an enemy, you must determine, upon all the evidence in the cause. If he was, then the attempt to rescue was not a criminal act.

Nevertheless, if you should think that he acted for his own benefit, it was fraudulent, and would equally amount to barratry. Verdict for plaintiff.