CHAPTER V.

Of Losses by the Barratry of the Master or Mariners.

IT

[T does not seem to have been any where precisely ascertained, from what source the term barratry has been derived.

Indeed the derivations of barratry have rather tended to confound, than to throw any light upon the subject; for its root has been so frequently altered, according to the caprice of the particular writer, that it is impossible to decide which is the true one. The English, however, most probably have taken it from the French, barrateur, which is to be traced to the Italians: but where the latter found this word is a thing by no means clear.

Whatever the derivation may be, the word seems to have Cowp. 154. been originally introduced into commercial affairs by the Italians, who were the first great traders of the modern world. In the Italian dictionary, the word barratrare means to cheat; and whatsoever is done by the master, amounting to a cheat, a fraud, a cozening, or a trick, is barratry in him. Postlethwaite, in his dictionary of trade and commerce, defines barratry thus; "Barratry is committed when the master of 1 vol. "the ship, or the mariners, cheat the owners, or insurers, P. 24. "whether it be by running away with the ship, sinking her, "deserting her, or embezzling the cargo." In another place, I vol. 136. the same author observes, "one species of barratry in a ma❝rine sense is, when the master of a ship defrauds the owners "or insurers, by carrying a ship a course different from "their orders." These definitions are so very comprehensive, that they seem to take in every case of barratry known to the law of England, as far as we can collect the principles from the several cases that have been decided. From a re- 1 Stra. 581. view of those cases, and they are but few, it appears that any

act

2 Stra.1173. act of the master, or of the mariners, which is of a criminal Cowp. 143. or fraudulent nature, or which is grossly negligent, tending I Term to their own benefit, to the prejudice of the owners of the ship, without their consent or privity, is barratry.

Rep. 32. 7 Term.

Rep. 505.

Cowp. 155.

Lockyer v.

Offley,

1 Term

Vide ante,

C. 2.

It is not necessary, in order to entitle the insured to recover for barratry, that the loss should happen in the act of barratry: that is, it is immaterial whether it take place during the fraudulent voyage, or after the ship has returned to the regular course; for the moment the ship is carried from its right track with a fraudulent intention, barratry is committed.

But the loss, in consequence of the act of barratry, must happen during the voyage insured, and within the time limited Rep. p. 252. by the policy, otherwise the underwriters are discharged. Thus, if the captain be guilty of barratry by smuggling, and the ship afterwards arrive at the port of destination, and be there moored at anchor twenty-four hours in good safety: the underwriters are not liable, if, after this, she should be seized for that act of smuggling.

From the above descriptions of barratry, it will appear, that if the act of the captain be done with a view to the benefit of his owners, and not to advance his own private interest, no barratry has been committed. I have said, that to constitute barratry, it must be without the knowledge or consent of the owners; because nothing can be so clear as this, that no man can complain of an act done, to which he himself is a party. But it is material to consider, in what sense Cowp. 154. the word owner is to be understood in this definition. It has been argued, that if A. be the owner of a ship, and let it out to B. as freighter, who insures it for the voyage; and if the deviation be with the knowledge of A. though unknown to B., the insurer is discharged. But the Court over-ruled that argument, and said, that in order to discharge the insurer from the loss by barratry, it must appear that the act done was by the consent, or with the privity of the owner, pro hac vice, that is, the freighter, the person insured.

These principles being advanced, it will now be sufficient to shew that they are supported and established by the cases

73.130.215.

which have been decided. But before they are quoted, it will be proper to observe, that by the positive regulations of Middleburgh, Amsterdam, Hamburgh, and other countries in 2 Magens, Europe, the underwriters are universally held to be answerable for losses arising by the barratry of the master or mariners. By the ordinances of Rotterdam, the owners of ships are prohibited from making insurances against the barratry of the masters, whom they themselves shall appoint; but they 2 Magens 89. may insure against their neglect, and also against the villainy of the sailors, and of such masters as may happen to succeed to the command of the ship in foreign parts, without the knowledge of the owners, on account of the decease or absence of the master originally appointed. No such rule prevails in the law of England; but the insurer undertakes generally, and by express words inserted in the policy, to indemnify the owner of the ship or cargo against all losses which he may happen to sustain by the barratry of the master or mariners, even though the master should have been appointed by himself: a circumstance which is rather singular, for the insurer to undertake for the conduct of a man whom he can neither appoint nor dismiss.

Knight v. Cambridge, 2 Ld.Raym.

In an action upon the case on a policy of insurance, on the ship Riga Merchant, "at and from Port Mahon to London, "against the barratry of the master, (among other things,) 1349. "and all other damages, dangers, and misfortunes, which 1 Stra. 581. "should happen to the prejudice and damage of the said ship," the breach assigned in the declaration was the loss of the ship," by the fraud and negligence" of the master. The plaintiff had judgment in the Court of Common Pleas. The defendant brought a writ of error, and it was contended by his counsel, that the words "fraud and negligence," used in the declaration, were more general than the word barratry: and that the breach should have been express, that the ship was lost by the barratry of the master: that if the word barratry do import fraud, yet it does not import neglect; and the fact here alleged is, that the ship was lost by the fraud and negligence of the master. (a)

But

(a) It now appears from manuscript notes of the following case of Stamma v. Brown, that the barratry committed in point of fact in Knight v. Cambridge,

Stamma v.

Brown,

But the Court were unanimously of opinion, that there was no occasion to aver the fact in the very words of the policy; but that if the fact alleged came within the meaning of the words in the policy, it would be sufficient. Barratry imports fraud: and he that commits a fraud may properly be said to be guilty of a neglect, viz. of his duty. Barratry of a master is not to be confined to the master's running away with the ship; but it extends to any fraud of the master. The end of insuring is to be safe in all events; and it would be very prejudicial if we were to make loop-holes to get out of these policies. The judgment was affirmed.

In another case, the ship the Gothic Lyon being advertised 2 Stra.1173. to go to Marseilles, goods were shipped on board her, on behalf of the plaintiff; and a bill of lading was signed by the master, whereby he undertook to go straight to Marseilles, and the defendant underwrote a policy from Falmouth (where the goods were taken in) to Marseilles. Before the ship departed from the port of London, another advertisement was published for goods to Genoa, Leghorn, and Naples; and the plaintiff's agent was told, that it was intended to go to those ports first, and then come back to Marseilles; but he insisted that his bargain was to go directly to Marseilles; and he would not consent to let her pass by Marseilles, or alter his insurance.

The ship, however, did pass by Marseilles; and after delivering her cargo at the other ports, set out on her return for Marseilles with the plaintiff's goods; but in a voyage thither, was blown up in an engagement with a Spanish ship. In an action upon the policy, the breach assigned was a loss by the barratry of the master.

Lord Chief Justice Lee told the jury,, that this voyage, being against the express agreement to go first to Marseilles, seemed to be more than a common deviation, as it was a formed design to deceive the contractor. He compared it

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bridge, was a sailing out of port without paying the port duties, whereby "the goods were forfeited and lost." See Earle v. Rowcroft, 8 East's R. 126. Post.

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to the case of sailing out of port without paying the duties, whereby the ship was subjected to forfeiture, and which has been held to be barratry.

The jury staid out some time, and upon their return, asked the Chief Justice, "Whether, if the master were to have no benefit to himself by passing by Marseilles, and went only to the other places first for the benefit of his owners, that would be barratry? and the Chief Justice having answered "No," they found for the defendant.

A new trial being moved for, the case was argued; and all the Judges of the King's Bench were of opinion that the verdict was right for the master has acted consistently with his duty to his owners; and the plaintiff's agent knew of the intended alteration before the goods were put on board, and might have refused to ship them, or have altered the insurance. The Court also held, that to constitute barratry (a), there must be something of a criminal nature as well as a breach of contract; and that as the breach was assigned upon the barratry only, it was not supported by the evidence. So the defendant had judgment.

2 Stra.1264.

In Sir John Strange's Reports we find another case upon Iton v. the subject of barratry. The ship Mediterranean went to sea Brogden, in the merchant's service, having also a letter of marque; and was insured by the defendant, being bound from Bristol to Newfoundland. In her voyage she took a prize, returned with it to Bristol, and received back a proportionable part of the premium. Another policy was then made, and the ship set out, the captain having first received express orders from the owners, that if he took another prize, he should put some hands on board such prize, and send her to Bristol; but that the ship in question should proceed with the merchant's goods. Another prize was taken in the due course of the voyage; and the captain gave orders to some of the crew to carry the prize

(a) In Phyn v. The Royal Exchange Company, 7 Term R. 505. post. p. 147. and also in Earle v. Rowcroft, 8 East's R. 126. it appeared from a manuscript report of the case of Stamma v. Brown, read by Mr. Justice Lawrence, that Lord Chief Justice Lee, in defining barratry, said," it "must be some breach of trust in the master cx maleficio.”

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