
    William Taggard and Others versus Caleb Loring.
    Where one hired a vessel for six months, rendering to the owners a moiety of her earnings, and sailed in her himself as master; it was holden that he was so far the owner of the vessel, that he could not be charged with barratry. Such a hiring may be by parole.
    Assumpsit on a policy of insurance upon 500 barrels of flour, on board the schooner Blucher, at and from Newcastle on the Delaware to Boston. The policy was dated February 12th, 1816, and the vessel warranted to have been at Newcastle on the 1st of January preceding.
    There were several counts in the declaration; but the only one relied on was that, in which the loss is averred to have arisen from the barratry of the master, the insured not being the owner of the vessel.
    The barratry was clearly proved at the trial before the chief justice, so as to entitle the plaintiffs to recover for a total loss; unless Lemuel S. Jennings, the master, * was so the [ * 337 ] owner of the vessel that he could not commit barratry m the voyage insured.
    The vessel was at Newcastle on the day warranted, and had on board 500 barrels of flour, the property of the plaintiffs; but instead of coming to Boston, Jennings carried the vessel to St. Jago de Cuba, where - he sold vessel and cargo, and has never accounted for the proceeds to the owners or shippers.
    Messrs. Fiske Sf Bridge, being the general owners of the vessel, in November or December, 1816, made an agreement with Jennings, that he should take the vessel and employ her from time to time, until the middle of May then next. He was to victual and man her, and to be at all expense during the term, except keeping the vessel in repair; and for the use of her he agreed to pay to the general owners one half of her earnings. There was no charter-party, nor any agreement in writing; but witnesses were present when the. bargain was made. At that time the vessel was in Boston, partly laden for Philadelphia ; and it was understood by the owners, that she should make a second voyage to Philadelphia and back to Boston within the time. She was so committed to Jennings, although there was no express agreement to this effect. Fiske Bridge had never known Jennings, before the above bargain was made; and it did not appear that any notice was given that the vessel was let to him, until after it was ascertained that he had run away with her.
    This evidence was objected to, on the ground that a charter, or letting to hire of a vessel, could not be proved but by some instrument in writing. The chief justice overruled the objection, and inslincted the jury, that if they were satisfied from the testimony, that the vessel was actually let to Jennings, and continued in his possession under the contract, until the voyage to Boston was abandoned, no barratry was committed for which the underwriters could be charged.
    [ * 338 ] * The verdict, under this instruction, which was given for the purpose of having the law of the case settled by the whole Court, was for the defendant; and a new trial was moved for, on account of the admission of improper evidence, and because the instruction to the jury was incorrect in point of law.
    
      Webster, for the plaintiffs.
    The evidence was improperly received; and if not, the charge to the jury was wrong. The evidence did not go to prove Jennings the owner of the vessel. Nothing but written documents is proof of property in the case of ships. The general marine law requires that a ship shall always be furnished with her documents, that those who have a right to examine her, may be satisfied respecting her character; as cruisers in time of war, and officers of the customs at all times. They are equally necessary at home, in questions arising qp insurance of freight, and a variety of other contracts. “ A bill of sale,” says Sir W. Scott, “ is the proper title, to which the maritime courts of all countries would look. It is the universal instrument of transfer of ships, in the usage of all maritime countries ; and in no degree a peculiar title deed or conveyance known only to the law of England. It is what the maritime law expects, what the Court of Admiralty would, in its ordinary practice, always require ” .
    The contract in this case was not a letting of the vessel to hire, but merely an agreement in what manner the master was to receive his wages, viz. in a moiety of the profits. If this had been a regular hiring, some agreement would have been made respecting demurrage. The whole plan of the employment of the vessel was settled by Fiske & Bridge, as much as by Jennings. To exonerate general owners, here must be a formal demise of a ship . Where the master and mariners of a whaling ship were to receive part of the profits for their services, yet it was helcl to be in the [ * 339 ] nature of wages, not of a partnership . * If in the
    case at bar, in the regular pursuit of the voyage, no freight had been earned, the master would have lost nothing. But the vessel would still be liable for the wages of the seamen.
    
      
      Curtis, for the defendant.
    Where a master of a ship is owner pro hac vice, he cannot commit barratry . But to constitute such ownership, the hirer should have actual possession of the vessel, victual and man, and have the exclusive control of her .
    Ships, as all other personal chattels, may be transferred by parole, and will pass by delivery . They pass to underwriters by abandonment, which may as well be by parole as in writing. A fortiori they ruaj be let to hire without an agreement in writing.
    With respect to the agreement in this case, that the hirer was to pay the owners one half the gross earnings of the vessel for the use of her ; this does not make them partners. It is only a mode of payment . If the agreement had been to divide the net earnings, they would not have been partners .
    
      
       5 Rob. Adm.. Rep. 159, Abbott on Shipping, 1. —Valin, lib. 3, tit. 1.
    
    
      
       2 Barn. & Ald. 503.
    
    
      
      
        4 Esp. Rep. 182. —5 Taunt. 74. S. P. —5 Rob. Adm. Rep. 8. S. P.
      
    
    
      
       2 Marsh, 515, 524. —8 Cranch, 39. —8 Johns. 272. —15 Mass. Rep. 370.
    
    
      
       8 Johns. 432. -2 Bam. & Ald. 503.
    
    
      
       4 Cranch, 48, 55. —7 Johns. 308. —4 Dallas, 342. —12 Mass. Rep. 54, 57
    
    
      
       1 Camp. 329. -2 H. Black. 590.
    
    
      
       15 Mass. Rep. ubi supra. —5 Taunt, ubi supra
    
   Parker, C. J.,

delivered the opinion of the Court. The general question is, whether the case contains proof of barratry, committed by the master of the vessel, on which the goods insured were shipped. If it does, the defendant is answerable, the plaintiffs not being owners of the vessel.

The misconduct of the master was undoubtedly barratrous; unless he was himself the owner, so that barratry, technically considered, could not be committed by him. .He, was, however, owner pro hac vice, unless a charter-party, or some instrument in writing, be necessary to make him such; because, according to the terms of the parole contract, he had possession of the vessel, and the entire control of her for a period, including the time when the act took place, which caused the loss complained of.

* Now we have not been able to find, that a vessel [ * 340 ] may not be hired for a voyage, or for a time certain, without writing. By the common law, the whole property of a chattel may be transferred by parole, accompanied by a delivery. In the admiralty it is usual to require a bill of sale, as evidence of property ; and by statute in England a bill of sale is made necessary . Here a sale and delivery may be good between the parties, so as to change the property, without a bill of sale or other ' instrument in writing.

Without doubt, then, by the common law, a ship may be hired by a parole contract, so as to be binding on both parties ; and there is no statute of this commonwealth, or of the United States, which makes a charter-party, by deed or writing, essential evidence of the contract. It is probable that coasting and fishing vessels are not unfrequently hired, without the expense of a charter-party, or other writing between the parties; and a contract to that effect, proved by witnesses, must be valid .

In the case before us, it appears that Jennings had acquired a right to the use of the vessel, from November, 1815, to May, 1816. There was no stipulation as to the employment in which she was to be kept; although it was expected that, during this time, she should make two trips from Boston to Philadelphia and back. The whole management of the vessel was committed to Jennings ; and within the time stipulated, he had a lawful right to exclude the general owners from the possession. For the hire of the vessel, he was to pay over to them one half of her earnings, without any deduction, except for repairs. There was no relation of master and owners between Jennings and Fislce Sf Bridge; and although Jennings would be accountable to them for any act which tended to deprive them of the fruits of the contract, or for not returning the vessel at the end of the term for which he had hired her, yet the offence of barratry could not be committed by him. For [ * 341 ] he, as master, violated no duty to them, as * owners, but merely committed a breach of his contract with the plaintiffs.

To test this principle, let us suppose that Jennings had sold his cargo in the West Indies, had returned with the vessel, delivered her to the owners within the time stipulated, and offered to pay them one half the earnings during the time; what injury would the owners have suffered, or what cause of complaint would they have had against him ? Certainly none ; and yet his contract with the shippers would have been broken.

If there had been a stipulation at the time of the hiring, that the vessel should be employed in coasting between Philadelphia and Boston, still a departure from that course would not have been barratrous, for want of the relation between him and the owners. According to the terms of the contract, as far as they appear, Jennings might have employed any other person as master; and in such case barratry might have been committed against him, but not against those of whom he hired the vessel .

Judgment on the verdict. 
      
      
        Stat 34 Geo. 3, c. 68
     
      
       [Vide Ohl vs. The Eagle Ins. Co. 4 Mason, 390; and the reasons and authorities given by the learned judge in that case.—Ed.]
     
      
       [Vide Abbott on Shipping, Am. edition, by Mr. Justice Story, 138, note 3; and the eases there cited.—Ed.]
     