
    Thomas W. Ward versus John Wood.
    The plaintiff caused insurance upon a ship for whom it might concern, and in his declaration averred that the policy was made for himself and I. S. in certain proportions ; it was holden, that the action was well brought upon the policy, by the plaintiff, without joining I. S.
    
    The taking of goods out of enemy vessels at sea, by a private ship of war, pursuant to instructions from the owners of the ship, although very censurable conduct, is not barratry; nor was a contract of insurance for that object void.
    Insurance was upon an armed ship, from the United States to India, with liberty to cruise and capture vessels and goods of the enemy; it was holden, that the convoying her prizes for eight or ten days was no deviation; it not appearing that she went out of her way for the purpose, and the jury having found that the risk was not increased thereby.
    Assumpsit on a policy of insurance, by which the plaintiff, for whom it might concern, caused to be insured the sum of $5000 upon the ship Hyder Mi and her appurtenances, from Portland to her port or place of lading beyond the Cape of Good Hope, with liberty to cruise and capture. The policy contained a written * memorandum, by which it was agreed that the policy should terminate whenever the ship should arrive at her port in India or China, where the agent should determine to load for America; or at the time she might receive on board a cargo or effects, with the intention of proceeding to the United States, whichever should first happen. The policy was dated the 12th of February, 1814, and subscribed by the defendant for $400, at a premium of 33| per cent.
    
    The declaration contained an averment, that the policy was made by the plaintiff, as well for Charles Saunders as for himself, in certain proportions ; and that they were interested in the ship and appurtenances to the amount insured. It was then averred, that, whilst the ship was proceeding on her said voyage, and before her arrival at a port in India or China, where the agent had determined to load for America, and before her receiving on board a cargo or effects, with the intention of proceeding to the United States, namely, on the 12th of June, 1814, she was captured by a British cruiser, and condemned as prize. There was also a count for $300 had and received.
    At the trial, which was had upon the general issue, before Jackson, J., at the last April term at Ipswich, the defendant admitted the due execution of the policy ; and did not dispute the interest of the plaintiff and the said Saunders to the amount insured ; but he objected that the said Saunders ought to have been joined as a plaintiff in the action. This objection was overruled.
    On the production of the policy, it appeared, that, by a memorandum indorsed on it, dated September 19th, 1814, the defendant and the other insurers thereon agreed to continue the risk on the said ship and appurtenances until her arrival in the United States, for an additional premium of fifty per cent.
    
    The plaintiff claimed compensation as for a total loss on the outward passage, and also a return of the whole premium on the homeward passage; alleging, that the * second insurance, made by the memorandum indorsed as aforesaid, had never attached.
    The defendant contended that there had been a deviation, which discharged the insurers ; and secondly, that, if they were liable for any loss, it was upon the homeward passage, which could not be recovered in this action ; and that he was entitled to retain the whole premium on both insurances.
    It appeared, from the deposition of the master of the ship, that she sailed from Portland on the 27th of January, 1814, with instructions to the master to proceed to Manilla, and there procure a cargo by negotiating bills of exchange, for which he had letters of credit irom the owners to the amount of $50,000; and with further instructions to cruise for ships of the enemy ; and, if he should take out of any prizes- a cargo which he should think would make the voyage lucrative, to teturn with such cargo without going to Manilla. The ship had a commission as a private armed ship, and was armed and equipped for a cruise. After passing round the ‘Cape of Good Hope they fell in with, and captured, the brig Favorite, with a cargo of teas and dry goods. They put on board her a prize-master and crew, and ordered her to proceed to the United States. The ship then proceeded to the coast of Sumatra. In a harbour on that coast they captured the ship Jupiter ; and, after taking out of her, and lading on board their own ship, about one hundred bags of pepper, they gave her up in consequence of a large ship approaching the harbour. On the next day they arrived at Tramon roads, and there captured three other vessels. From each of these they took out a quantity of goods, which they laded on board their own ship. They then gave up one of the vessels as a cartel; and manned the other two, and ordered them to proceed to the United States. The ship convoyed these prizes off the coast of Sumatra, for eight or ten days. She then went to the island of Junkseilon for wood and water, their water having * leaked out, and that being the most convenient place to which they could go for that purpose. About the last of May they captured two other vessels, from which they took out all the valuable goods, and laded them on board their own ship, and then gave up the prizes. From these prizes they heard of two other British vessels, that had sailed for Sumatra ; and cruised for them till the 8th of June, when they were chased by a British frigate, from which they escaped after a chase of three days. On the 12,th of June they fell in with another British frigate, by which the Hyder JLli was captured, and carried into a British port; where she was libelled and condemned as prize.
    The Hyder Mi, when captured, had on board goods taken as aforesaid, to the amount of about one hundred and sixty tons ad-measurement. She could have carried nearly two hundred tons more. The master had no intention of returning home with only the goods then on board ; they being not sufficient to induce him so to do. But he intended to have cruised eight or ten days longer ; and, if he should not, in that time, have taken goods enough to induce him to return home with them, then to proceed to Manilla with what he had on board, and there complete the cargo by means of the said bills of credit.
    There were goods enough on board the vessels captured by the Hyder Mi, before she left Tramon roads, to have loaded the ship, including the pepper on board the prizes ; but there were not enough without the pepper; and the ship was not adapted to the carrying of pepper ; nor did the master think it of sufficient value to lade his ship with it.
    The master shipped from the prizes as many Lascars as he had sent of his own men on board the prizes which were ordered home ; so that his own crew was not weakened.
    There was only one question of fact, which, at the request of the parties, was submitted to the jury, namely, Whether the risk was in» creased, when the ship was sailing off the coast of Sumatra, by her convoying her prizes as * above mentioned.
    Two witnesses were produced by the plaintiff, and examined on this point; and the jury found that the risk was not increased.
    A general verdict was returned for the plaintiff, as for a total loss on the outward passage ; and also for a return of the premium for the homeward passage ; subject to the opinion of the whole Court upon the foregoing statement. The verdict was to stand, or be altered in any manner as the Court should think proper upon the facts as above stated.
    Hubbard, for the defendant.
    If the plaintiff is entitled to recover for any loss under this policy, such loss occurred on the homeward passage. For such a loss he has not declared in this case, and cannot now recover. Nor has he any claim for a return of the premium given for the insurance upon that passage.
    The action should have been in the joint names of Saunders and the plaintiff. Saunders was a party in interest equally with the plaintiff; and the undertaking of the defendant was to them jointly. If the plaintiff should recover, he can be entitled to but a moiety of the loss. Nor is this objection merely formal. The underwriters should have an opportunity to set off any demands they may have against any of the assured. 
    
    The master of this ship was guilty of barratry, in breaking open the vessels captured by him, and taking out parts ol their cargoes, before condemnation. His authority was, to capture and send in for adjudication vessels and merchandise belonging to the enemy. His conduct in this respect was a gross violation of the laws of civilized nations, and expressly contrary to the injunctions of a statute of the United States. 
       It is very clear from the facts in the case, that the loss which happened wholly arose from this misconduct of the master.
    Here was a deviation from the voyage insured, in convoying the prizes from the coast of Sumatra. A permission to cruise and capture is very different from leave to * convoy prizes.
    This was a new undertaking, wholly distinct fiom the voyage insured. The risk was changed, and it is quite immaterial whether it was increased or lessened by the change. Tf there was a right to convoy for ten days, there must have been equally a right U come back to the United States for the purpose of protecting the prizes, and afterwards to prosecute the voyage. The case of Lawrence & al. vs. Sydebotham 
       is a very strong one to this point.
    The outward voyage was terminated before the loss happened. In the harbour in the island of Sumatra, where the Jupiter was captured, and her cargo laden on board the ship insured, for the purpose of bringing it to the United States, the outward voyage ended, within the terms of this policy. The same may be said of the transactions in Tramon roads. The insurance was but to one port in India. 
      
    
    
      Prescott and Nichols, for the plaintiff.
    The action was continued nisi, and, at the following March term in Suffolk, the Court ordered judgment to be entered on the verdict.
    
      
      
        Lawrence vs. Sebor, 2 Caines' Rep. 203.
    
    
      
      
        Stat. U. S. 12 Cong. 1 Sess c. 107, § 6.
    
    
      
       6 East, 45.
    
    
      
       1 W. Black Rep. 417.—1 Esp. Rep. 413.
    
   Parker, C. J.

We think that none of the objections, urged by the defendant’s counsel against the verdict, ought to prevail.

First, as to the form of the action, it is insisted, that, as Saunders’s interest in the vessel was insured by the defendant in the same policy, he ought to have joined in the action. But the policy is in a different form from those usually adopted in our offices. The plaintiff caused the insurance for whom it might concern, and the interest of Saunders was known at the time to the underwriters. It is in conformity with the contract, that the plaintiff should maintain the action in his own name ; and it is agreeable to usage, that he should do so on policies in this form. The principle, on which this objection is overruled, is settled in the case of Davis vs. Boardman.

* The next objection is, that the master committed an act of barratry, in plundering British vessels of their cargoes, instead of bringing or sending the captured vessels into port for adjudication. But it appears that he was authorized to do this by his instructions from his owners ; and by the policy it appears, that procuring a cargo at sea was contemplated, even by the underwriters. This, therefore, if unlawful, is not barratry ; as it was for the interest, and pursuant to the orders, of the owners.

Another objection is, that there was a deviation by convoying the prize vessels ; and it is insisted that liberty to cruise and capture does not carry with it liberty to convoy. It does not appear that the ship went out of her way to convoy, or that she was delayed thereby; and it is found by the jury, that the risk was not increased by the act of convoying. This, then, does not amount to a deviation; and the case of Lawrence vs. Sydebotham, cited to maintain this point, is not applicable ; for there an actual delay was proved, the vessel insured having shortened sail and Iain to, for her companions. No such facts appear in this case ; and a delay cannot be necessarily inferred from convoying ; for it may be that the captured vessels were the swiftest sailers, and that they lay to for the ship insured.

As to the point, that the voyage had terminated before the capture, because the ship went into several ports in quest of prizes, little stress can be laid on this, for she did not go into any port with a view to ■finish her voyage, or to get a return cargo there, but only in furtherance of her cruising intentions, according to the liberty secured by the policy.

With respect to the illegality of the contract, on the ground that the object of the cruise was, to plunder the vessels of the enemy, instead of bringing them into port, some further consideration of this subject may be necessary.

It is said to be contrary to the law of nations, to adopt a practice of this sort even against enemies ; and * especially as the property of neutrals may be endangered thereby, and the neutral owner be put to great expense and trouble in reclaiming his property, and very often would be without remedy.

The practice is undoubtedly disgraceful among civilized nations , and neutral nations have cause of complaint against any belligerent government which authorizes its subjects to prey upon defenceless vessels, and plunder them of their cargoes, upon pretence that they belong to the enemy ; instead of carrying them into port for trial, where the neutral may assert his claim. But the law of nations admits of capturing the property of enemies, without any restriction as to the mode. The captor takes the property at the risk of its belonging to the enemy. If it belong to neutrals, he is liable in damages.

It is not suggested, that the property captured by the ship insured in this case was neutral. But it is argued, that such acts are in violation of the statute of the United States, which regulates the conduct of private armed ships, and the disposition of the captured property. This act does not make it unlawful to take property out of ships captured. It is merely directory as- to the disposition of vessels and property captured ; and obedience to the law is enforced by bonds and penalties. Property captured, and not dealt with according to this statute, we apprehend, would not be restored, if belonging to the enemy. But the captor might be sued upon his bond, or otherwise punished, for not obeying the directions of the statute. We do not think, therefore, that this contract of insurance, which recognizes the object of the cruise, was unlawful, so as to render the policy void

Judgment according to the verdict. 
      
       12 Mass. Rep. 80.
     