
    Cook and Pratt against The Commercial Insurance Company.
    ALBANY,
    Jan. 1814.
    
      Barratry may be committed by the master of a ship, in respect to the cargo, though the owner of the cargo is, at the same time, owner of the ship, and though the master is also the supercargo or consignee for the voyage.
    THIS was an action on an open policy of insurance, dated the 5th Tune, 1809, on the cargo of the schooner Despatch, “ at and from St. Jago de Chiba to New Orleans, and at and from thence to Nerv-York.” The plaintiffs claimed a total loss by barratry of the master. The Despatch, belonging to the plaintiffs, with a cargo also owned by them, sailed from Nerv-York on the 29th August, 1806, for St. Tago de Cuba, commanded by L. Rogers, who was also supercargo and consignee for the voyage. The vessel arrived at St. Jago de Cuba, where the outward cargo was sold by Rogers, and part of the proceeds invested in a return cargo, consisting of indigo, tortoise shell, and specie, equal in value to the amount insured; and on the 26th April, 1809, the vessel sailed under the command of Rogers, on the voyage insured, and arrived at New Orleans on the 8th Tune, 1809, where Rogers, the master, fraudulently converted the specie to his own use, and never further prosecuted the voyage, but afterwards absconded.
    A verdict was taken for the plaintiffs, subject to the opinion of the court on the above case.
    
      D. B. Ogden, for the plaintiffs,
    contended that this was a clear case of barratry, and the only possible objection he could anticipate to the plaintiffs’ right of recovery was, that when the master was also supercargo and consignee, there could be no barratry in regard to the cargo, or there could be no barratry, in that respect, where the owner of the cargo was at the same time owner of the vessel. As to this objection, he relied on the case of Earle v. Rowcroft,
      
       in which Lord Ellenborough considered it as hardly deserving a serious answer; but that it need only to be stated to show that it had no weight. Barratry is there laid down to be any fraudulent or criminal conduct against the owners of ship or goods, by the master or mariners, in breach of the trust reposed in them, and to the injury of the owners, though not done with intent to injure the owners,- or to benefit, at their expense, the master or mariners.
    
      
      Wells, contra.
    The doctrine of barratry is not founded on principles of natural justice. Its operation against insurers, who do not appoint, and seldom have any knowledge of, the master or mariners, is hard and unjust. The court, therefore, will not feel disposed to extend it, but will rather confine it where it ought to be confined, to the owners of the vessel, who have the appointment of the master. Lord Mansfield thought it extraordinary that the doctrine should ever have crept into the law of insurance, 
    
    1. The first proposition for which I shall contend is, that there cannot be barratry, in relation to the cargo, when it is owned by the owner of the vessel.
    
      Marshall
      
       defines barratry “ any act committed by the master or mariners, for an unlawful or fraudulent purpose, contrary to their duty to their owners, and whereby the owners sustain an injury.” The definition of Park is more accurate; that any act of the master or mariners, which is of a criminal or fraudulent nature, or which is grossly negligent, tending to their own benefit, to the prejudice of the owners of the ship, without their consent or privity, is barratry.” This definition is adopted by Brackenridgc, J. in the case of Calhoun v. Insurance Company of Pennsylvania,
      
       omitting the words “ tending to their own benefit.” All these definitions agree in one essential circumstance, that the act done must be to the prejudice of the owners of the vessel. This prejudice may be either direct and immediate, or consequential. For when the cargo is fraudulently disposed of by the master, it is consequentially injurious to the owners of the vessel, because they are responsible for the embezzlement of the cargo. But if no injury, direct or consequential, arises to the owners of the vessel, there can be no barratry. Here the plaintiffs are owners of both vessel and cargo, and as they cannot, in the character of owners of the vessel, be answerable to themselves, as owners of the cargo, no such injury can arise, and so there is no barratry. This is an insurance on the cargo only. If the vessel only had been insured, or if the cargo had belonged to third persons, then there might have been barratry»
    On examination, every case of barratry, reported in the English books, will be found to militate against the distinction which has been stated by the plaintiffs’ counsel. They will be found to be cases in which the policy of insurance was on the vessel only, or where the cargo insured belonged to third persons, and not to the owner of the vessel. In Stamma v. Brown,
      
       the goods insured were shipped by a third person. In Elton v. Brogden
      
       the policy was on the ship. In Vallejo v. Wheeler goods were insured; the ship belonged to Willis, who chartered her to Darwin, who set her up as a general ship, and Vallejo was one of the shippers of goods. In Nutt v. Bourdieu,
      
       the policy was on goods shipped by a third person. Lockyer v. Offley
      
       was on the ship, and the act of barratry was smuggling. In Ross v. Hunter
      
       the insurance was on goods shipped by a third person. In Moss v. Byron
      
       the policy was also on goods shipped by a third person; and the act of barratry consisted in deviating for the purpose of taking prizes, and which made the owners of the vessel, under the charter-party, liable for damages. In Phynn v. Royal Exchange Insurance Company, there was a policy on goods, but it does not appear who owned the goods. In the case of Lewin v. Suasso, cited by Park, (128.) it is not distinctly stated whether the insurance was on the ship or cargo, but as the barratrous act was alleged to be a fraudulent sale of the vessel, the inference is irresistible that the policy was on the ship.
    In the decisions of our own courts will be found two cases which seem to militate against the proposition which I have endeavoured to support. In all the other cases, the insurance was either on the ship alone, or on goods owned by a third -person.
    
    The case of Crousillat v. Ball, in the supreme court of Pennsylvania, arose on a policy on ship and cargo, both of which were owned by the plaintiff; and Yeatcs, J. before whom the cause was tried, directed the jury to find a verdict for the plaintiff, on the ground of the barratry of the master. In that cause, however, the distinction now raised was not made by the counsel, nor considered by the court. In the case of Wilcocks and others v. Union Insurance Company,
      
       it is stated in a note to Condy’s edition of Marshall on Insurance, that the plaintiffs were owners both of the vessel and cargo; but the fact is not stated in the report of the case by Binney, and there is reason to conclude that Mr. Condy must have been mistaken as to that fact. There is not, then, a single decision, in our own courts, except that of Crousillat v. Ball, where the plaintiff being owner both of the vessel and cargo, recovered against the insurer on the ground of barratry. The American 
      •decisions, in this respect, are in unison with those of the English courts- This court, therefore, in adopting what I conceive to be a solid distinction, will not violate any authority.
    2. Where the master is also supercargo, or consignee, and the barratrous act may be referred to his character as consignee, the insured cannot recover on the ground of the barratry of the master. Here the master was consignee of the cargo, and so it is distinguishable from the case of Earle v. Rowcroft,
      
       in which the captain was a supercargo.
    
      Emerigon,
    
    notwithstanding the marine ordinance of France, is of opinion that the owner of the ship cannot be insured against the barratry of the master, because, being himself answerable, according to the Roman law, for the master he employs, he cannot, as insured, throw the burden on the insurer, who would have immediate recourse against him as owner, to recover back the same loss, and thereby produce a circuity of action, which is not allowed by law. And he states and discusses the precise question, whether, if the master has a commission to dispose of an adventure of goods on board, the insurer of such adventure is answerable for the loss of it, occasioned by the fault of the master; and he is of opinion that he is not, for this would make the insurer answerable to the insured for the faults of his own agent or factor. He says the clause in the policy as to barratry of master and mariner, relates only to the acts of the captain committed in quality of master, and not to such acts as render him culpable in his function of mercantile agent. And, he adds, the matter is attended with much less difficulty, if the captain, having arrived at his port of destination, squanders away the goods or adventure consigned to him; for it is then a land risk, for which the insurer cannot, in any manner, be responsible,  Now, in the present case, the vessel had actually a!rÍVCd at New 0rleans’ her port of destination. Marshall, who ches the doctrine of Emerigon, does it with approbation, and seems not to consider it, in this respect, as different from the English law. And in Crousillat v. Ball, the proposition is admitted to be clear law. The court there said the plaintiff must recover, “unless, the evidence shall satisfy the jury that the captain was the general agent and consignee of the plaintiff, ^ and acted as such; in that case, the law is equally clear, that the gets of a general agent cannot, any more than the acts of the principal himself, be denominated barratry.” The doctrine of Eme'figon was re-co§nised by this court in the case of Kendrick v. Delafield, and impliedly adopted as law. Kent, J. having in view the distinction, says, “ The fraudof the master was not committed in the character of consignee of the plaintiff’s cargo, but in his character of master of the vessel. This is the true distinction on the subject, and which reconciles the doctrine in Emerigon with the plaintiffs’ claim in the present case. The captain did not, and could not, lay aside his character and responsibility as master, until the vessel had performed her voyage, and arrived at the port of destination.” So here, on the arrival of the Dispatch at New Orleans, the character of the captain as master, in relation to the goods, ceased, and his character as consignee commenced, and it was in the latter character that the fraudulent act was committed.
    
      D. B. Ogden,
    
    in reply, said, the distinction raised by the 'counsel for the defendant in discussing the first point, though ingenious, was not to be found in the books, and it is very surprising that Marshall, a writer so learned and correct, in his treatise on this subject, had not taken notice of such a distinction, which, if known in the law of insurance, must be allowed to be very important. The fact that it has never been stated in the argument of the numerous cases which have arisen on the subject, nor been laid down by any elementary writer or judge, so far from being in favour of the proposition, is conclusive evidence against it.
    It is, an erroneous argument to say that the insurers are liable, where the owners of the vessel are consequentially injured by barratrous acts in relation to the cargo, because they are consequentially answerable to the owners of the cargo for the injury; but that when the injury is direct and immediate to them, it should not be barratry. There are numerous cases where the owners of the cargo have recovered against the insurer for the barratry, of the master. Barratry is any fraudulent act of the master to the injury of the owner of the ship or cargo. And it is because it was perfectly immaterial whether the fraudulent act ivas to the injury of the owner of the vessel or the OAvner of the cargo, that the distinction noiv attempted to be made was never thought of before.
    As to the second point, the opinion of Lord Ellenborough, in Earle v. Rowcroft, is a conclusive ansAver. The distinction between the tivo characters united in the captain, of master and supercargo, is treated as perfectly futile and groundless.
    Again, the act of barratry ivas not in taking the goods on shore, but because he carried them on shore fraudulently, Avith an intent to convert them to his oivn use. It can make no difference Avhen -or where the act is done, if the vessel'has not been so long in port as to put an end to the insurance. Here the voyage insured was from New Orleans to New-York, so that the risk still continued in that port.
    
      
       8 East, 126.
    
    
      
      
        Nutt v. Bourdieu, Term Rep. 323—330.
    
    
      
      
        Marsh, on Ins. 375.
    
    
      
       1 Binney's Rep. 293. 322.
    
    
      
       See Millar on Insurance, 138—455. 1 Emerigon, 366.
    
    
      
      
         2 Stra. 1174.
    
    
      
       2 Stra. 264.
    
    
      
      
        Comp. 143. and see 1 Johns Rep. 23. n.
    
    
      
       l Term Rep. 31.
    
    
      
      
        Term Rep. 2. see also Term Rep. 277.
    
    
      
       4 Term Rep. 5.
      
    
    
      
      
         6 Term Rep. 379.
    
    
      
       7 Term Rep. 503. See also Knight v. Cambridge, 1 Stra. 81. Ld. Raym. 1349.
    
    
      
       2 Caines’ Rep. 6. 22. 3 Caines’ Rep. 229. 8 Johns. Rep. 229. 8 Johns. Rep. 272.
    
    
      
       4 Dallas’s Rep. 294.
    
    
      
       Marsh. on Ins. 34. in By Candy
      
    
    
      
      
         Binney’s Rep. 574.
    
    
      
       8 East, 127.
    
    
      
      
        Dig lib. l4. tit. 1. s. 5.
    
    
      
       I Emerigon, Traité des Jlss. 369,370 “ Les assureurs qui se sont rendas ga« ^ans dela barraterie du patron, soní-ils responsables de la perte de la pacotille as» surée, si cette perte arrive par la faute du capitaine, charge de la commission ?
      La clause d’etre tenu de la barraterie du patron, ne concerne que les iautes que le capitaine commet en sa qualité de maitre, et nullement cedes dont il se rend cou» pable dans sea fractions de marchand et de gereur Si le capitaine a failli en sa premiare qualité; comme s’il a dé ron. té, Scc. les assureurs qui se sont rendus garans de la barraterie du patron, en sont responsables 5 xnais malgré ladite clause, ils ne sont pas tenus des fautes que le capitaine commet en. sa qualité de facteur. Vide Casaregis, Disc. 1. n. 75, 76.
      La chose recoit encore moins.de difíiculté, si le capitaine parvenu au lieu destiné,, dissipe la pacotille cbargée a consignation. C’est alors un risque de ierre, dont Ies 35S ureters ne répond en ancone mamertV
    
    
      
      
         2 Caines' Rep. 67. 62.
    
   Per Curiam.

There is no ground for the distinction taken by the defendants’ counsel, that the master can only commit barratry as to the vessel, and as to the cargo belonging to third persons, but not as to the cargo which is owned by the owner of the vessel. The law permits the oivner of the ship to be insured against the misconduct of the captain and crew, though they are his own agents, and persons of his own choice. It is too late to question the law, ivhatever we may think of its policy. And as the owner of the vessel can be insured against the barratry of the master, committed against the vessel, there is no reason ivhy he should not be equally insured as to the cargo. The principle is the same, and all the cases in the English law, which define barratry, render it sufficiently comprehensive to embrace the oivner of the cargo, notivithstanding he may happen to be also oivner of the ship. Barratry includes every spe cies of fraud, concerning either the ship or cargo, committed by the master in respect to his trust as master, to the injury of the owners or shippers. It was for the defendants to show the ex-ceP^on> and the books afford no pretence for any; on the contrary, the case of Crousillat v. Ball (4 Dall. Rep. 294.) is an authority against the exception. That was a policy on ship and cargo, and both ship and cargo were owned by the plaintiff, who recovered on the charge of barratry committed particularly in respect to the cargo.

Nor can the barratrous act be referred to the master in hie character of consignee. The cargo consisted partly of specie, and when the captain arrived at New Orleans, he converted the specie to his own use, abandoned the voyage, and absconded. This was clearly a criminal breach of duty in his character of master of the vessel, and though he had a superadded character of consignee, the act is properly imputable to him as master. (8 East, 140. 2 Caines’ Rep. 72.)

Judgment for the plaintiffs for a total loss;  