Thurston v. Columbian Insurance Co.

Headnote

If an assured be apprised by his master, of his pursuing another voyage than that insured,on which he has been sent, and do not disapprove of it.itispniy ade-viation and not barratry,though, the master ultimately run away with the ship, sell her and embezzle the proceeds.

UPON a policy on the sloop Dolores, Elihu Utley, master, from New -York to the Havanna, and back again, valued at one thousand four hundred dollars.

The declaration was for a total loss, by the barratry of the master. Plea, non assumfisit, and a verdict taken for the plaintiff, subject to the opinion of the court on the following case, made on behalf of the defendants.

By bill of sale, dated the 15th of July 1801, Utley, in consideration of 12G0 dollars, conveyed the sloop Dolores to the plaintiff, who, on the 17th effected the present insurance, and in the course of the same month the vessel duly sailed on the voyage described.. On the 22d of August succeeding, Utley, after a safe arrival at the Havana, wrote a letter to the plaintiff, informing him of the arrival of the vessel, and that he (Utley) had eon-

signed her to the house of Simon Poey, but that, for want of a cer- ” tmcate from the Spanish consul, the sloop' was not permitted to enter. On the third of September a second letter was written by Utley to his owner, mentioning the same impediment, and requesting the certificate to be forwarded. On the 15th, the plaintiff received the first letter of his master, who, on the twenty-sixth, wrote a third time, saying that the Dolores had, the day before been permitted to discharge and depart from the Havanna, on giving security that the consular certificate should be produced Within a specific time, but that having lost a second freight for JVew- York, -in consequence of the delay in transmitting it, he should accept of one, which offered for Charleston, to the amount of about 800 dollars, of molasses, to be shipped from the port of Haruco, about seven leagues to windward of the Havanna. That after having taken in this cárgo, he should proceed to Charleston and from thence to JVew-York, desiring insurance to be made on the -vessel and freight. This letter was followed by another to the same effect, dated the 2d of October. The two letters written in September were received by the plaintiff in the beginning of JVovember, about which time Utley, with the loading he had mentioned, sailed for Charleston, where he arrived the December after. From .thence he wrote to the plaintiff, that finding no chance of a freight fot JVew-York, he had taken one for the Havanna, but was, by contract, to return to Charleston., and would, after that, proceed to JVew- York, when he hoped to be able to discharge his obligations, of which he was not unmindful, adding “ do not be uneasy ; “ I have the vessel fully insured for the voyage in case of any “ accident, that I may not fail óf my present hopes, which are to « -make payment as soon as possible, as my account has been long- “ er standing than I had any idea of at che time of contract.’’ The plaintiff, on the receipt of this letter, caused enquiry to be made respecting the sloop, and found, that about two days after it was written, she had cleared out for the Havanna, from whence Utley wrote, that finding a good opportunity to sell the vessel, he should do so, though he was obliged to -go to the Man anzas for the money, and, when about to return to JVew-York, would give timely advice, that insurance might be made, saying it -was imposing “ on good nature, to stay away s.o long, although he could do no “ better, was the same to do again.” After this letter had come to hand, another oil the first day of July 1802, reached the plaintiff from St. Augustine, bearing date, the 28th of April prececb

■ ing, in which Utley mentions, that after selling the Dolores for . . a good price, he had been robbed of all the money, excepting 350 -dollars, which was inadequate to discharge his debt to the plaintiff, but that he hoped in a short time to return and do it, when he would give satisfaction for his absence.

On the 15th of July 1802, the plaintiff abandoned, adducing as proofs of interest and loss, the bill of sale, and the letters above-mentioned.

It was admitted that Utley had not returned, neither had he paid to the plaintiff the proceeds of the sloop, nor accounted with hint for them.

made three points, 1st, That the voyage from the Havanna to Charleston, and -the actual sailing of the Dolores from the Havanna to Harneo for a freight to Charles= ton, was either an abandonment, or a change of the voyage insured, or a deviation, and discharged the owners of their obligation. 2d, That the acts and conduct of the master, must have been according to his duty and by the authority of the owner, or, if unauthorized, that the same were adopted, or acquiesced in by the owner. 3d, That the offer to abandon was made too late, being after the assured (having elected not to abandon) had lost his right so to do, if, at any time, he had such right.

As to there having been a deviation in fact, no question can be made. For instead of returning to New-York, the vessel sailed from Charleston. This however is explained to be a barratrous voyage. But to make it so, it must be in fraud of the owner, without his authority, and by a master who is not owner. It may ■well be inferred that the master of the Dolores was her owner, but if he was so, this I admit ought to be shewn by the underwriter. Still, however, the circumstances evince the measures adopted, were fot the benefit of the owner; they could hot therefore amount to barratry.

Hendrick v. Delafield, 2 N. Y. T. R. 67. But it is known in these West-India voyages, very great discretionary powers are invested in the captains.