Swan v. The Union Insurance Company of Maryland

(Common Law.) Swan v. The Union Insurance Company of Maryland. To «ntitle the plaintiff to recover in an action on a policy of- insurance, the losa must be occasioned by one of the perils insured againit. Tho insured cannot recover for a losi by barratry, unless the barratry produced tbo loss; but it is immaterial whether tbe loss, »o produced, occurred during the continuance of the barratry or afterward*. Error to the circuit court for the district of Maryland. This was an action on a policy of Insurance upon the. schooner Humming Bird, at and from New-York to Port Ru Prince, and at and from thence back to New-York. The policy was dated on the 21st of July, 1810, and the vessel sailed on the voyage insured on the 5th of that month. About the 5th of August follow ing, she arrived at Port au Prince, and was there stripped of her sáils and a considerable part óf her rigging by one James Gillespie, to whom she had been chartered for the voyage. This was done with the knowledge and acquiescence of the master, either for the purpose of procuring the loss of the vessel, or-offiting up anoth er vessel, which Gillespie wished to despatch to the United States. On her return voyage she was sunk by Gillespie, but whether with or without^the knowledge of the master, did not appear. The plaintiff insisted at the trial, that as barratry had been committed at Port .au Prince, the subsequent loss, however occa~. sioned, was to be ascribed to that cause, and he was entitled to recover.- But the Court directed the jury that, admitting the act at Port au Prince to be barratry, the plaintiff could not recover on account of it, unless the jury should be of opinion that it produced the loss. Under this direction, to which the plaintiff .excepted, the jury found a verdict for the defendants. Feb. 12th. Mr. Harper, for the plaintiff, argued that the loss, though not immediately consequent upon the act of barratry, was a ground of recovery; the insured ought to be protected against the incidental consequences of that act; and could not else have llie benefit of his contract of indemnity. In the case of Yallejp v. Wheeler, the. smuggling which was the barratrous act, was not the immediate and dire ’t t -fuse''of.the loss: yet the insured -recovered, because the loss was sustained in .consequence of the alteration of the voyage. Sergeant Marshall deduces from the case this corrolary, that if barratry be once committed, every subsequent 'loss or damage may be ascribed to that cause; and the underwriters are liable for it as for a loss by a barratry. Mr. Winder, contra, contended that it did not appearthatthe act of the master at Port au Prince was barratrous, or any thing more than gross neglect, or that he had any interest in the consequences of his supposed misconduct. The case, of Vallejo v. Wheeler does not support the inference of Marshall, and his opinion is hot authority any further than it is borne by the case.' I has been doubted; by the most enlightened jurists* whether-barratry ought to be the subject, of insurance* certainly it ought not to be extended beyond its direct and immediate consequence^. The insured for"a^toaf'by barratry, try produced immaterial fcs^'soprodueed occurred duriug.the con tinuarwe of the Feb. 18th. Cowp, 143. 2 Marshall on Ins. 528. Id. 531. [MAJORITY — Mr. Chief Justice Marshall] Mr. Chief Justice Marshall delivered the opinion of the court, and after stating the facts, proceeded as follows': The general principle unquestionably is, that to en-Pontiff t° recover, the loss must be occasioned one of the.perils- in the policy. This is equally the rule of reason and the rule oflaw. Buttheplamtiffcontends that the case of Vallejo v. Wheeler denies the uppl^ution- of this principle to a loss in a casein which barratry has been committed. • This, court is ", not of that opinion., The case of Vallejo v. Wheeler it to be immaterial whether the loss occurred during the continuance of the barratry,or afterwaxds, not whether the loss was produced by the barratry. Inthat Case the court was of opinion that the loss was produced by the barratry. Judgment Affirmed. The cases on the subject of barratry áre collected in Condey.’s edition of Marshall on Insurance, vol. 2 p. 515 ct infra, and note (84) p. 534. To which add the following: Where ’the owner of a vessel chartered her to • the master for a certain period of time, the , master ‘ covenanting to victual and man her at his own expense, he was held to be owner pro hac vice, and no act of his would amount tó barra-' try. And if he committed an act, which, were he investéd with no- other character than that of master, would be bar- ' ratrous, the insurer would not-be liable ¿ven to an innocent owner of-the goods laden on board the vessel. Hallett v. The Columbian Ins. Co. 8 Johns. Rep. 272. Barratry uiay be committed by the master, in respect of the cargo, although the owner of the car-r go is, at thé same time, owner of the ship', and although the owner is, also, supercargo or consignee' for the voyage, Cook et al. v. The Commercial Ins. Co. 11 Johns. Rep. 40. Qwere, Whether information' or facts, known to the assured as to the carelessness, extra\ragan9e, and want of economy in -the master, be material, and ought to be disclosed to the insurer at the tíme of effecting the policy ? Walden v. The Firem. Ins. Co. 12 Johns. Rep. 128. 513; A vessel was insured, among other risks, againstJsre; during the voyage a seaman of the crew careless^ ly 'put up a lighted candle in the binnacle, which took fire, and communicating to some powder, the vessel was blown up, and wholly lost; it, was held that the insurers were not liable for the loss. A loss occasioned by the mere negligence or carelessness of the master or mariners, does not amount to barratry, which an act done with a fraudulent intent,- or ex maleficio. Grim v. The United Ins. Co. 13 Johns. Rep. 451. See 8 Mass. Rep. 308. A sentence condemning as enemy’s property- a Cargo, -which the. master had barratrously carried into an enemy’s .blockaded port, although con-elusive evidence that the cargo was enemy’s property at the time cf capture and condemnation, does not disprove an averment that the cargo was lost by> the captain’s- barratrously- carrying it to places unknown. Whereby the good'sf became liable to confiscation, and were confiscated. Goldschmidt v. Whitmore, 3 Trun. 508. Where the plaintiff declared'on a policy from Jutland to Leith, and averred 'a \ loss by seizure ; the master testi* fied that the ship was pursuing her course for Leith, • when shbjvas Captured by a Swedish frigate, five German (piles off die coast of Norwáy.' The defendant produced-a Swedish sentence of condemnation for breaking the blockade of Norway. Held, that this-was con- ' elusive evidence of the breach of blockade, but-that it was not sufficieht evidence to fix thé master with barratry!. That cannot be done, unless he- act-Criminally ; .and to gay that he broke the blockade in disobedience to the instructions of his. owners, from some private interest, of his own,- was too strong an inference from the evidence as it stood.. The ship might have been bound fór Leith, and .y^t might have received instructions to touch at N'orway'; and for . other reasons she might have" gone thither, without -any imputation of- barratry. But the court did not decide whether the plaintiff could have recovered' without a count for barratry, nor whether, upon a count for barratry,the sentence for a breach of blockade would be1 conclusive. Everth et al. v. Hannam, 2 Marshall's Rep. 72. S. C. 6 Taunt. 375. Improper treatment.of the vessel -by the master, will not constitute barratry, although it tend to the destruction of the vessel, unless it be sjhown that he acted- against his own judgement. Todd v. Richie, 1 Starkie's N. P. 240.