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1818. *-* Swan W. Union Ins. Company.

(CoMM on Law.

Swan v. THE UNIon INsu RANce ComPANY or
MARYLAND.

To entitle the plaintiff to recover in an action on a policy of insurance, the loss must be occasioned by one of the perils insured against. The insured cannot recover for a loss by barratry, unless the barratry produced the loss; but it is immaterial whether the loss, so produced, occurred during the continuance of the barratry or afterwards.

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 ..u 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 sails and a considerable part of 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 of fiting 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 1818. entitled to recover. But the Court directed the jury Swan that, admitting the act at Port au Prince to be barratry, v. the plaintiff could not recover on account of it, un-Union Ins. less the jury should be of opinion that it produced the Company. loss. Under this direction, to which the plaintiff excepted, the jury found a verdict for the defen

dants.

Mr. Harper, for the plaintiff, argued that the loss, Feb. 12th.

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 the benefit of his contract of indemnity. In the case of Wallejo v. Wheeler," the smuggling which was the barratrous act, was not the immediate and direct muse 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 appear. that the act of the master at Port au Prince was barra. trous, 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

a Cowp. 143. 2 JMarshall on Ins. 528. b Id. 531. Vol. III. 23

w 170 OR THE UNITED STATES.

1818, support the inference of Marshall, and his opinion is ‘so not authority any further than it is borne by the case. W. I has been doubted by the most enlightened jurists, ". Ins. whether barratry ought to be the subject of insurance, ompany, and certainly it ought not to be extended beyond its di

rect and immediate consequences.

Feb. 18th. Mr. Chief Justice Marshall delivered the opinion of the court, and after stating the facts, proceeded as

follows: The insured The general principle unquestionably is, that to en:::::::::::title the plaintiff to recover, the loss must be occasioned to: by one of the perils in the policy. This is equally the try, produced rule of reason and the rule of law. But the plaintiff con*:::::tends that the case of Vallejo v. Wheeler denies the :"... application of this principle to a loss in a case in *:::::::::, which barratry has been committed. This court is *:::::::::12 of that opinion. The case of Vallejo v. Wheeler wronzá'." " declares it to be immaterial whether the loss occurred during the continuance of the barratry,or afterwards, not whether the loss was produced by the barratry. In that

case the court was of opinion that the loss was produced by the barratry.

Judgment Affirmed.”

a The cases on the subject To which add the following: of barratry are collected in Where the owner of a vessel Condey's edition of Marshall chartered her to the master on Insurgnee, vol. 2 p. 515 ct for a certain period of time, infra, and note (84) p. 534. 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 to barratry. And if he committed an act, which, were he invested with no other character than that of master, would be barratrous, the insurer would not be liable even to an innocent owner of the goods laden on board the vessel. Hadlett v. The Columbian Ins. Co. 8 Johns. Rep. 272. Barratry may be committed by the master, in respect of the cargo, although the owner of the cargo is, at the 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. Quatre, Whether information or facts, known to the assured as to the carelessness, extravagançe, and want of economy in the master, be material, and ought to be disclosed to the insurer at the time of efsecting the policy Walden v. The Firem. Ins. Co. 12 Johns. Rep. 128.513; insured, among other risks, against fire; during the voyage a seaman of the crew careless

A vessel was

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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 er 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 conclusive 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 goods 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

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have received instructions to touch at Norway ; 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 be conclusive. Everth et al. v. Hannam, 2 JMarshall's Rep. 2. S. C. 6 Taunt. 375. Improper treatment of the vessel by the master, will not comstitute barratry, although it tend to the destruction of the vessel, unless it be shown that he acted against his own judgment. Todd v. Richie, 1 Starkie's JN. P.240.

- (ComMos LA w.)

DUGAN et al., Executors of CLARK, v. THE UNITED \ - - STATEs.

Where a bill of exchange was endorsed to T. T. T., treasurer of the United States, who received it in the capacity, and for account of the United States, and the bill had been purchased by the Secretary of the Treasury (as one of the commissioners of the sinking fund, and as agent of that board) with the money of the United States, and

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