Majority
p. 229M’Intire against Bowne.
Headnote
M chartered a vessel to A & B for a particular voyage, reserving-half tliecabin, and certain privileges for the master and mate; andcovenanted to hire and pay the master and crew, and furnish them with all provisioi.s, &c. The master, at the request of B, who was on board, went out of the course of the voyage, and the vessel was captured by a Spanish privateer. It wast held that M, notwithstanding- the charter-party, continued owner of the vessel for the voyage,and that the deviation amounted to an act of" barratry in the master, for which the insurers on the vessel were Ea= ble.THIS was an action on a policy of insurance, dated the 26th June 1801, on the vessel' called the Mar cus, valued at 3400 dollars, on a voyage “ from New-York to Trinidad and from thence back to New-York, with liberty to stop and trade at CurracoaT 'The cause was tried at the New-York sittings, on the 24th day of April, 1805, before Mr. Justice Thompson, when the jury found a verdict for the plaintiff.
The plaintiff claimed for a total loss by barratry of the master. The broker testified, that at a meeting between the assurer and assured, the latter claimed for a total loss by barratry, and exhibited the protest of the captain ; that though no formal abandonment was made, he regarded it as understood and admitted by the parties, who agreed, that a new insurance should be effected on the vessel, from Maraicabo to New-York, for the benefit of whomever it might concern, and without prejudice to the plaintiff’s claim on the defendant.
The plaintiff was owner of the vessel, and by a charter-party, dated the 13th June^ 1801, he granted and let to freight, the said vessel, to two persons of the name of Alien Brice, excepting one half of the cabin, the privilege for twenty barrels for the master and mate, and so much of the hold and forecastle, as was necessary for the accomodation of the master and crew, provisions, &c.
p. 230
The voyage described in the charter-party, was the same as tjlat mentioned in the policy. The plaintiff covenanted to have the vessel ready, and to receive alongside, such cargo, contraband goods excepted, as Aken Ed” should tender, and the vessel could conveniently carry ; and to proceed on the voyage described, and that master and crew should assist in landing the cargo, &c. The owner was also to hire the master and crew, and -pay all their wages, and the expenses for the voyage.
The charter-party contained the usual covenants on the part of Aken is? Brice as to providing the cargo, and demurrage; the whole freight was to be paid at New-York, on the delivery of the return cargo. The vessel went to Trinidad; and while proceeding on her return from that island towards Curracoa, the master, at the request of Brice, who was on board and acted as supercargo, changed his course and went to a port on the Spanish main. On its being first proposed by Brice the ■master objected, as being against his orders; but on Brice’s agreeing to pay him a hundred dollars, and to indemnify him and the owners of the vessel, he consented to go to Lagnira. The master then went to Caballo, but was ordered the next day to depart, and afterwards, being near Curracoa, he was captured by a Spanish privateer and carried into Aiaracaibo, where the vessel was libelled by the captors, but was afterwards released. The supercargo thereupon sued for damages, and the captors then appealed from the sentence of acquittal. The cargo was taken and sold, and the proceeds deposited in the king’s treasury, until the determination of the appeal. The vessel being restored, the master sailed from Maracaibo, leaving Brice there. The protest of the captain which had been exhibited among the preliminary proofs, was stated in the case; and he declares that he went to Caborifo, in consequence of the request of Brice and his express promise, to indemnify both him and the owners, from all the consequences of the deviatipn from the voyage
p. 231Two questions arise in this cause. 1. Whether an abandonment, and sufficient preliminary pi-oofs were made, prior to the commencement of this suit? 2. Who was the owner of the vessel pro hac vice V 1. The protest of the master, received among the preliminary proofs, negatives the fact of barratry, and the defendants ought to he bound by that evidence. The testimony of the broker, does not prove any written or parol abandonment, but merely that, from the conversation between the parties,' he understood, that there was an abandonment for a total loss. 2. The most important question is, who is to be considered as the owner of the vessel for this voyage ? The charter-party is not a mere covenant to carry the goods of Aken & Brice; the vessel is let to freight for the voyage. In the case of Velleijo v. Wheeler,[12] the person to whom this vessel was chartered, was considered as the owner pro hac vice, and justice Aston observes, that where there is a deviation with the consent of the owner of the vessel, and the master is not acting for his own private interest, it is nothing but a deviation with the consent of the owner, and the underwriter is excused. Where a ship is let out to freight generally, the freighter is considered as the owner for that voy age .[18] And Millar,[3] in distinguishing between the freighter, and the mere shipper of goods ’
mentioned in the charter-party. And he entered his 1 . protest at Maracaibo against the acts of Bi ice.
The judge, in his charge to the jury, stated the inclinaiion of his opinion to be, that the plaintiff, not Alien Brice, must be considered as the owner of the vessel, for the voyage; and if so, the plaintiff was entitled to recover for the barratry of the master; otherwise, it was a deviation which discharged the defendant from the contract; but he left it to the jury to decide who was the owner. On giving their verdict, the jury declared, that they considered the plaintiff as owner for the voyage.
Hoffman for the defendant.
p. 232remarks, that the freighter either appoints or approves- of the master,- and superintends the whole adventure, and may not improperly be considered, as the temporary owner of the ship. Here Aken & Brice had the direction of. the voyage and must be considered the temporary owners. If they did not appoint, they approved of the master, and had the direction of him, in relation to the voyage. If a vessel is let to a single person, it is sufficient to constitute him the freighter, or owner pro hacvice.[12] As to the case of Parish v. Crawford,[18] which may be cited on the other side, it may be remarked that the authority of that case, is greatly shaken, if not destroyed, by more recent determinations.[17] It can scarcely be applicable to the present case, which is on a policy' of insurance. The material question is, who is to be considered as owner, in order to determine against whom the crime of barratry is committed. Barratry is any species of fraud, deceit, or cheating by the master or mariners, with intent to injure or defraud. the owners.[12] It is an act committed by the master, in violation of his duty, in the relation in which he stands to the owners of the ship. The master is responsible for his conduct to the person who appoints him. This responsibility furnishes the true criterion of ownership, as to the question of barratry. In the case.of Parish v. Crawford,[18] this principle is recognised, and the true distinction is taken to be, that he, who by the contract has the appointment of the master, is to be considered as owner, and liable for the acts of the master. This establishes the relation of owner and master, the violation of the duties of which relationship on the part of the master, constitutes barratry. The plaintiff hired the master and crew for the voyage, paid all their wages, and furnished them with all the provisions and necessaries for the voyage. Aken & Brice had no controul over the master. The vessel was merely let to them to carry their goods, reserving certain privileges for the'master and mate, and a part of the vessel for the accommodation of the
Pendleton & Benson, for the plaintiffs.
p. 233•master and crew. The ship was not transferred to Aken £5? r . Brice. It was a mere covenant to carry their goods, or to give them the use of the vessel for that voyage. The plaintiff covenants, that certain acts shall be done by the master and crew in relation to the goods of Aken cs? Brice. This shews that the plaintiff had the entire direction and controul of the master and crew, and that this was a mere agreement for the carriage of the goods. Suppose Brice had not been on board, would not the plaintiff have been responsible to the shippers for the misconduct of the master ? Could any action be maintained against Aken £s? Brice for the master’s misconduct ? In Parish v. Crawford, the appointment of the master was considered as decisive of the ownership, and that such owner was liable to third persons for the acts of the master. Now what will make him liable to third persons as owner, for the acts of the master, will constitute him the owner, so as to be entitled to his indemnity on a policy of insurance. The barratry in this case, consisted in a wilful and direct breach of orders. But who was entitled to give those orders, and from whom did the master receive them ? From the plaintiff—-not from Aken Brice. Some confusion has arisen as to the precise meaning of the word chartering. Where a person lets the whole of his vessel, so that the hirer has the entire possession and controul, this is properly a charter-party. The right of possession for the time is gone, as in the case of the lease of a house for a term of years the hirer is the complete owner for the time, and the lessor cannot take possession. But in the loose and common acceptation of the word chartering, it is
p. 234meant the letting a vessel to freight to carry goods. This is the present case, and is like advertising a general ship for freight, with certain restrictions as to time, &c. In either case, the ownership would remain entire,, and the owner would be obliged to furnish a master and crew. - In case of. a general ship, it is not usual to have deed, or charter-party ; separate bills of lading or contracts aré made with the separate shippers. The signing a charter-party in the present case, can make no difference as to the question of ownership. Might not the plaintiff have maintained trover against a third person, who had wrongfully obtained possession of this vessel during the voyage ? If the goods had been spoiled, would he not have been answerable for .the damage ? Had not the plaintiff a right to abandon the ship during the voyage, and to transfer his right of possession to the insurer ? In short, are not all the indicia, and incidents of ownership, to be found with the plaintiff ? It is said, that the authority of the case of Parish v. Crawford, has been weakened by-that of James v. Jones.[17] But it does not appear how the vessel was chartered in that case. It is a short note of. a Nisi Prius decision, and not entitled to much attention. With deference to Lord Kenyon, it may be observed, that the true point of inquiry was, not who was the charterer,' but who appointed the master, and gave him his authority. If the master let the vessel without any authority from the owner, there could bé no privity of contract between him and the shippers of goods. In the case of Paul v. Birch,[11] Lord Hardwicke takes the distinction made in Parish v. Crawford. He says, “ the “ money paid to the owner of the ship was improperly term- “ ed freight; it was rather for the hire of the ship, as the “ freighter was at liberty to appoint the master and mari- “ ners.” In the case of Moss v. Byrom,[12] which is strongly in point, the plaintiff had hired the ship of the owner for a particular voyage. The master took out letters of marque, without intending to use them, except in self defence ; but during the voyage, having gone out of his course in order to take a prize, such conduct was held to be barratry, be
p. 235cause against his instructions, and contrary to his duty to the owner of the ship, who was responsible to the freighter for any loss happening in consequence of this act. There appears to be some confusion in the case of Velleijo v. Wheeler;[18] but if attentively examined, it will appear that Dcirwin had the entire controul of the ship, and the circumstance of his being the general freighter, and having the direction and controul of the vessel, was considered as decisive of his ownership pro hac vice.[17] Though the precise question now before the court did not arise in the case of Kendrick v. Delafield,[17] as the original owner had parted with the possession and controul of the vessel, yet the general principle now contended for was recognised by the court. 1. The insured, if he mean to sue for a total loss, must comply with one of the terms of his contract, and exhibit his proofs thirty days before the Commencement of his action. The only evidence offered in this case, was the protest of the master, which does not prove a barratry. There should he proof of the very loss for which lie means to claim an indemnity, otherwise this clause in the policy would he perfectly nugatory. The silence of the insurers is not to be construed into an admission of satisfactory proofs. Neither the protest, nor other papers produced, con
Harison, in reply.
p. 236tain a proof of barratry*. The fact of a new insurance’ is not equivalent to an assent on the part ot the insurers to the sufficiency of proofs. It was a mere temporary arrangement, made to secure the property for whomever it might concern. Though this is a point of inferior importance in the cause, yet the court ought to give effect to the clause in the policy requiring these preliminary proofs, of it may as well be struck out, as an useless provision.' 2. If Aken Brice were the owners of this vessel pro hac vice, their consent renders the act of the master a mere deviation. If ISIntyre be the owner, then ‘ the deviation amounts to barratry. This is a point of considerable moment, and attended with some difficulty and embárrassníent, on account of the apparent obscurity in the authorities 'which have been cited on the subject. Ownership may exist iii different persons, at the same time, for different purposes. As in regard to land, the lessor is considered as owner for one purpose, as in case of waste, and the lessee for another, in regard to his term. The plaintiff, as the general owner, could have his right of action, after the termination of the voyage, against Brice, for any mismanagement, or misuse of the vessel. It does not follow, however, that he is to be considered as owner in every case. Though as general owner, he has let the vessel, yet for some purposes, and particularly in regard to insurance, Aken Brice may be considered as owners pro hac vice. None of the writers oh insurance have cited the case of Parish v. Crawford; neither Park, Millar nor Marshall, though the latter published his treatise the same year in which Abbots book appeared. ' It is very remarkable, considering the great industry and research of these writers, that this case, if it had any application to the subject' of insurance, should have been wholly overlooked by them. It may fairly be inferred, that they considered it, as applicable only between the shippers of goods, and ship-owners. But, supposing it was applicable to a case of insurance, it may be said, that it was decided when the science of commercial law in England was .in its infancy, and that it has been overruled by the recent deck
p. 237sion of Lord Kenyon in the case of James v. Jones.[18] True, that,was a decision at Nisi Prius, but it was made by a very learned and experienced judge ; and it does not appear that any application was ever made for a new trial, or that the correctness of his opinion has ever been The case - of Velleijo v. Wheeler,[17] is the leading case on this subject in relation to insurance. Brown chartered the vessel to Darwin for a voyage, not for a term of years. It was a general ship, put up for a voyage from. London to Seville. A person may take up the whole vessel as a general ship, or he may charter her, which is different. It is better to take a charter-party than to fill up a vessel as a general ship. Brown, the master, was not appointed by Darwin, who had the same power over the master and crew, that Aken & Brice had in the present case. Here is a charter-party which imports a hiring for the voyage ; and Aken 6? Brice had a vested interest in the vessel for the voyage ; they had a perfect right to go on board, to take possession of the vessel,, and sail in her without paying any thing for their passage. But had this been a mere contract for the carriage of goods, Aken &? Brice would have had no right to take possession of the vessel. The reservation of half the cabin, and the privilege of the master and mate, can make no difference. Aken Ss? Brice were no less the owners pro hac vice. They took possession of the vessel,' let to them by the plaintiff, subject to this reservation, which is a matter of usage, in all foreign voyages. By the charter-party, Aken £•? Brice had the order and direction of the vessel. They were to pursue the voyage, in the manner they thought best. They had liberty to touch and trade at Curracoa. ' If the master had died, might not Brice have appointed another ? If any person had wrongfully taken possession of this vessel during the voyage, might not Aken £s? Brice have brought their action against him i The general freighter is clearly the owner pro hac vice. The general affreightment, or letting to hire of the. entire vessel, is, then, the true criterion of ownership. It is the principle on which the case of Velleijo v. Wheeler, and all the subsequent decisions are found-
p. 238eel. A lessee for. years is ozvrter of the land during the term. Suppose he covenants with the,lessor or reversioner that he will employ a particular steward or servants on-the farm appointed by the lessor, would he be less the owner on that account ? The appointment of the master in this case by the plaintiff, does not vary the question. Though ap-. pointed and paid by AB Intyre, he was bound to follow the directions of Aken Ss? Brice, during the-voyage. In the case Qf Moss v. By rom,§ which has been cited on the other side, it does not. appear that either party assented to the acts of -the master. His cruising w.as ' an act perféctly and exclusively his own. The plaintiffs had hired the vessel from the agent of the owner, for a trading voyage ,- and it being a charter, or general affreightment of the ship, the plaintiffs were déemed owners pro' hac vice, and the conduct of the master was regarded as barratry.
delivered the opinion of the court.
The loss claimed in this case is for the barratry of the master, and the right of the assured to recover will depend- on the ■ determination of the question, who is to be deemed owner of the vessel for the voyage ? It is not denied that the conduct of the master amounted to barratry, provided the assured is to. be considered as owner of the brig, for the voyage insured. The plaintiff was the owner, but he had chartered the vessel to Aken & Brice, who, it is contended, must be considered owners pro hac vice; and the acts of the master, which are alleged as barratrous, having been committed, by the procurement, orders and directions of Brice, one of the hirers, would not constitute barratry. It appears that the assured equipped the brig, hired and put on board the master and crew, and paid them, furnished the provisions and other necessaries for the voyage. There was also excepted out of the charter one half the cabin, and the privilege for twenty barrels on account of the mate and captain, and so much of the hold as might be necessary for the accommodation of the master, mariners, provisions, water and fuel for the crew. Under such circumstances, I should not consider Alien Brice as owners for the voyage. By the
p. 239
charter-party the owner of the vessel covenants to tarry and deliver the goods ; he is, therefore, responsible for the conduct of the master and crew, and if there be a failure of delivery by reason of their misconduct, he is accountable.—The plaintiff retained the controul and management of the vessel, and was bound to keep her furnished with a competent crew. Barratry is something contrary to the duty of the master and mariners, the very terms of which imply, that it must be in the relation in which they stand to the owners, who are their employers, and whose orders they are bound to pursue. I apprehend the distinction to be, that where, by the terms of the charter, the ship-owner appoints the master and mariners, and retains the management and controul of the vessel, the charter is rather to be considered as a covenant to carry goods ; but where the whole management is given over to the freighter, it is more properly a hiring'of the vessel for the voyage, and in such case the hirer would be deemed owner pro hac vice; 2 Atk. Paul v. Birch. This appears to me to he a rational distinction, and one, that is in no way contradicted, but rather sup<ported, by the case of Velleijo v. Wheeler, Cowp. 142, Marsh. 455--6, so much relied on by the defendant’s counsel.—» According to Marshall"1 s report of that case,' the court laid down the distinction above taken, and considered the person having the controul of the vessel as owner ; that if a shin be let out generally to freight, the freighter is owner for that voyage, but if there be only a covenant to carry goods, the owner of the ship would have the direction of her, and the hiring of the master and mariners. In Gowper's report of the case, it is stated by counsel, and not contradicted, that Darwin, the freighter, did appoint the master for the vopage ; and Mr. Jus. Aston in delivering his opinion says, the hulk of the ship belonged to Willes, but he had nothing to do with it, having chartered it to Darwin, and so the jury did right in considering him owner pro hac vice.
Another question raised, though not much pressed on the argument of this case, related to the sufficiency of the preliminary proofso This objection appears to me not well
p. 240
taken. The claim by the assured, when he abandoned, was fop a lpss by the barratry of the master, and he exhibited as preliminary proof of that loss, a paper purporting to be the heads of a protest by the master, and also a letter from the master to the plaintiff. The protest states how Brice, the supercargo, interceded, with, and eventually prevailed on the master to do, what is admitted to amount to barratry. In addition to. which, it was proved that the abandonment was ■for barratry, and the witness understood the underwriters, as being satisfied with the preliminary proofs which had been exhibited, and it was thereupon agreed between the parties, that the plaintiff might make a further, insurance, without prejudice to his claims against the defendant; and that if the insurers on the original policy were liable, such new insurance should be for their benefit. Under such circumstances, even admitting the documents exhibited, not to have been competent preliminary proofs I should consider the underwriter, as having waived his claim, to mope formal proof, and as admitting the loss as stated in.the heads of the protest, for the purpose of bringing up the question whether the circumstances would warrant a recovery for barratry. It would, I think, be extremely rigorous to turn the plaintiff round to. a new action on account of an objection, which must be considered as merely formal;
. The opinion of the court, therefore is, that the plaintiff is entitled to recover as for a total loss.
Judgment for the plaintiff.