
    Tate and others against The Protection Insurance Company.
    Where the command of a vessel devolved upon the second mate, by the successive deaths of the first mate and master, during the voyage; it was held, that he did not thus become the master of such vessel, within the meaning of the clause in the policy of insurance, which excludes barratry of the master, the assured being owners, from the risks insured against; consequently, barratry committed by him, while thus in command, was the act of a mariner, and one of the risks assumed by the policy.
    This was an action upon a policy of insurance, made, in the usual form, on the 17th day of June, 1845, for the sum of 6,750 dollars, upon the bark Fame and outfits, then on a whaling and elephantary voyage to Kergerland and elsewhere, and back to New-London. Among the perils insured against, was that of “barratry of the master, (unless the assured be the owners of the vessel.) and of the mariners.”
    With respect to the loss, it was averred, in the declaration, that on the 1st day of March, 1847, while the vessel was on her voyage, the mariners on board, in a barratrous and fraudulent manner, took and carried away the vessel, with the outfits, to places unknown to the assured, and converted her to their own use. The plaintiffs, having abandoned to the defendants the vessel and outfits, claimed to recover, as for a total loss.
    The cause came on for trial before the superior court, in the county of New-London, at the March term, 1850.
    Upon the trial, the defendants admitted, that all the allegations in the declaration were proved, excepting that the loss was caused by the barratrous conduct of the mariners, as to which the following facts were agreed upon, by the parties.
    New-London,
    July, 1850.
    When the vessel sailed upon her voyage, Joseph B. Mitchell was the master, Joseph Penny, the first mate, and Anthony Marhs, the second mate, of the vessel ; Mitchell having been appointed, as such master, and Penny and Marks respectively shipped, as such mates, by the plaintiffs. In the prosecution of the voyage, Penny died, in consequence of a blow from a whale; whereupon the duties of the first mate devolved upon and were exercised by Marks. After which Mitchell died; whereupon the duties of master of the vessel devolved upon and were assumed and exercised by Marks, under whose command and direction the vessel was afterwards navigated, and, on her homeward voyage, brought to Rio .Janeiro, where a new crew being shipped, the vessel was thence taken, under the direction of Marks, acting as such master, on a slave trading voyage or expedition to the coast of Africa. There a great number of slaves were, by him, procured and transported in the vessel to Rio Janeiio, and there disposed of. He then caused the vessel to be taken elsewhere, and converted her to his own use, whereby she became wholly lost to the plaintiffs, by the barratry of Marks. It was admitted also, by the plaintiffs, that they were owners of the vessel and outfits insured.
    The defendants thereupon claimed, that Marks was, and should be deemed to be, the master of the vessel, and not one of the mariners thereof, when the barratry was committed, within the meaning and construction of that clause in the policy, enumerating the perils insured against, and specifying barratry of the master (unless the assured be the owners of the vessel,) and of the mariners," as one of them. And it was further claimed, by the defendants, that if Marks was not then to be deemed the master, but one of the mariners of the vessel, the defendants were not liable to the plaintiffs on the policy, by the true construction of said clause, for the barratry of Marks.
    Upon these facts the court decided, that upon the true construction of said clause in the policy, Marks was to be deemed one of the mariners, and not the master of the vessel, when the barratry was committed; and that the defendants were therefore liable to the plaintiffs on the policy, and rendered judgment accordingly.
    The defendants thereupon filed a motion for a new trial; and the case was reserved for the advice of this court.
    
      Hungerford and T. C. Perkins, (with whom was Foster,) in support of the motion,
    contended,
    1. That Marks, through whose barratry the vessel was lost, by virtue of the original appointment, upon the death ot the first mate and the master, succeeded to all the authority, rights and responsibilities of, and in fact became, the master of said vessel, and was such, at the time the barratry was committed. Read v. Chapman, 2 Stra. 937. The ship Favourite, 2 Rob. Adm. R. 232. The brig George, 1 Sumrt. 151. Copeland v. New-Eng. Ins. Co. 2 Mete. 432. Par-meter v. Todhunler, 1 Campb. 541. Jacobs. Sea Laws, 123.
    2. That the insurance, by the terms of the policy, is to continue upon the vessel until the end of the voyage, whoever may be the master of it: and the exception of the barratry of the master from the perils insured against, is referable to any master during the voyage ; there being no intimation in the policy, that it was intended to be limited to the master directly appointed by the owners. Provision is made for a change of masters; and the exception is no more applicable to one than to another.
    
      Strong and Crump, contra,
    contended, That the second mate of a ship, upon whom, by the successive deaths of the first mate and the master, during the voyage, the command devolves, does not thus become the “ master” of such ship, within the meaning of the clause in the policy, which excludes barratry of the master, when the assured are owners, from the risks assumed by the underwriters. This position they endeavoured to support, upon principle and authority.
    1. Upon principle. In the first place, the object of this exclusion relates only to masters proper, appointed by the owners, and not to those who become commanders accidentally, as Marks did, in this case: the end in view being to secure a close attention, on the part of the owners, to the integrity and competency of the master they appoint. Secondly and chiefly, to prevent collusion between the master and owners, to the defrauding of the underwriters. On both points, see Earle & al. v. Rowcroft, 8 East, 134, and Ordinances of Rotterdam, referred to in Park on Insurance, 85.
    2. Upon authority. See the case of the brig George, 1 Sumn. 156. where the precise character which a mate has, who succeeds to the command, by the death of the master, came in question, and was determined by Judge Story, in conformity to the views of the plaintiffs here. The language of the court, in the case referred to by the defendants, in 2 Metc. 432. (445 and 446.) must be considered with reference to the question before them, which did not call for a determination of the precise character which a mate succeeding to the command, by the death of the master, bears to the ship~ but only whether the want of any other commander than such mate renders a vessel unseaworthy, if she proceeds on her voyage from an intermediate port. The court cite the case in Sumner in support of their views, without any objection to any part of Judge Story's decision,
   Wave, J.

The plaintiffs, in this case, were insured against the barratry of the mariners, but not against that of the master. The vessel was lost, by reason of the barratry of the second mate, committed after he had succeeded to the command, in consequence of the deaths of the first mate and ihe master, while the vessel was on her voyage, and in foreign parts; and the question is, whether that was one of the perils insured against.

The practice formerly was, to insure against the barratry both of the master and mariners. Eminent judges have considered it extraordinary that the barratry of the former should have ever crept into insurances, and still more so, that it should have long continued in them. Earle v. Rowcroft, 8 East, 126. Nutt v. Bourdieu, 1 Term R. 323. 330. Grim v. Phoeni.v Insur. Co. 13 Johns. R. 451. 458.

Such a practice encourages collusion between the owner and master, and thereby opens a door for frauds upon the underwriters. It is said by Marshall, in his treatise on Insurance, that at Rotterdam, the owners of ships were prohibited from insuring against the barratry of the master, whom they themselves appoint, but were permitted to insure against that of the sailors, and of such a master as might succeed to the command in foreign ports, without their knowledge, upan the decease or absence of the master originally appointed. 2

Marsh. Ins. 443.

In the present case, the barratry of the master, by the express terms of the policy, is excluded from the perils, against which the plaintiffs were insured; but the former practice in relation to the barratry of the mariners, remains unchanged.

Had the vessel been lost, by the barratry of Marks, the second mate, while she continued under the command of the original master, it is conceded, that the defendants would have been liable. Does the accidental circumstance, that the master had previously died, make any difference with that liability? Had the plaintiffs done any act, by which Marks had been promoted to the command, the case might be different. But here the plaintiffs have done nothing to affect their rights. Marks contracted to serve as second mate, and such he continued during the voyage, notwithstanding the deaths of his superior officers, by reason of which additional duties were cast upon him. He was not the confidential agent of the owners, as was the case with the master appointed by them.

In England, where a master can not sue, in a court of admiralty, for his wages, it has been holden, that a mate, who succeeds to the command of a ship, upon the death or absence of the master, may sue in that court for his wages during the whole voyage. But for bis extra services, performed as commander of the ship, he must resort to the common law courts. And the reason assigned, is, that having contracted to serve as mate, that character remains, although a new character is superinduced. Read v. Chapman, 2 Stra. 937. The Favourite, 2 Rob. Adm R. 192. “ He does not,” says Judge Story, “cease to be mate, but has thrown upon him cumulatively the duties of master. He is still mate, acting as master pro hac vice.” The brig George, 1 Sumn. R. 151.

Such being the situation of Marks, at the time when the barratry was committed, it ought to be treated as the act of a mariner, for which the defendants made themselves responsible. Such a construction, we think, is in conformity with the spirit and meaning of the policy. The reasons for not insuring against the misconduct of a master whom the own~ ers appoint, do not apply to a case like the present. The danger of collusion does not exist.

A new trial, therefore, is denied.

In this opinion the other Judges concurred.

New trial not to be granted.  