[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 533
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 534 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 536 It is conceded by the learned counsel for the plaintiffs that mere negligence is not barratry, and that negligence generally includes every breach of duty not clearly intentional, and to constitute barratry there must, at least, be made out an act of willful wrong or fraud done by the master against the ship and goods. And after a careful examination of the elementary works, and the best considered cases *Page 537 that have been adjudged in the courts of this country and England, I think that no act of the master of a vessel can be deemed barratry, unless it proceed from a criminal or fraudulent motive. (2 Arnold on Ins., 821, note h; McCul. Dic. of Com. and Nav., tit. "Barratry;" Cook v. Com. Ins. Co., 11 J.R., 40, 46; Am. Ins. Co. v. Bryan, 26 Wend., 578; 1 Phil. on Ins., §§ 1062, 1074; 2 Parson's Maritime Law, 236-246.) So far, we think the counsel in this case entirely agree upon the general principle of the law which must control our judgment; and the only question is, whether the court below properly disposed of it in favor of the defendant, as a question of law, or whether, as claimed by the plaintiffs, the case should have been submitted to the jury upon the whole evidence as a question of fact.
In determining this question, it will be important to refer to some adjudged cases in which certain acts and omissions of the master of a vessel, injurious to the vessel and its cargo, have been held to amount to the offence of barratry, as a matter of law, or as tending to prove it, as a matter of fact. We think there can be no rational doubt but that the crime, or quasi crime, of barratry may be insured against, not only by the owners of the vessel, but also by the owners of the cargo. Lord MANSFIELD, whose authority on all points connected with the law of insurance is very great, appears at one time to have thought that it would be well to exclude barratry entirely from policies, and to cease making the underwriter become the insurer of the conduct of the captain, whom he does not appoint and cannot dismiss, to the owners who can do either. "But," adds a learned writer, "though it were expedient to prevent the owners from making an insurance of this sort, nothing can be more reasonable than that third parties, who freight a ship or put goods on board, should be allowed to insure against such a copious source of loss." (McCulloch, supra.)
In Lawton v. Sun Mutual Ins. Co. (2 Cushing, 500, 511, 512), Chief Justice SHAW, speaking for the Supreme Court of Massachusetts, says: "But we think that they (the English *Page 538 and American authorities) all agree substantially in holding that barratry consists in willful acts of the master or mariners done for some unlawful or fraudulent purpose, contrary to their duty to the owners of the vessels. The act must be willful and not accidental or caused by negligence, unless the negligence be so gross as to amount to evidence of fraud. (Patapsco Ins. Co. v.Coulters, 3 Pet. [U.S.], 222, 234.) It has been held not to be necessary that there should be fraud in the sense of an intention on the part of the master to promote his own benefit at the expense of the owners, but any unlawful act of known criminality or of gross malversation operating to the prejudice of the owner is, in legal contemplation, barratry. (Earle v. Rowcroft, 8 East, 129; Heyman v. Parish, 2 Campbell, 149.) Every willful act on the part of the master of known illegality, every gross malversation in his office or criminal negligence, by whatever motive induced, whereby the owner is damnified, comes within the legal definition of barratry." The case in which these observations were made, was that of the master of a whaling vessel who, instead of cruising for whales, went into the port of Tahiti, on one of the Society Islands, where the master sold a part of the ship's apparel and supplies, the crew deserted, and the vessel in consequence became so far disabled as to be unable to pursue her voyage, and was taken possession of by the United States consul at Tahiti, and sent to her owners to prevent a total loss. But the question came before the court upon a report of the whole evidence given on the trial, and the question as to what acts constituted barratry was open for consideration and judgment. We are unable to assent to a remark in the opinion of the learned chief justice of the Common Pleas, that the meaning of the word barratry, from what has been said respecting it in comparatively recent cases "has become nearly as uncertain now, as when the question was first agitated in Westminster Hall 150 years ago." We think the result of the more recent and best considered cases give a reasonably accurate view of the law. The great difficulty that seems in the first instance to have arisen, was, whether a *Page 539 mere act of negligence was barratry, and it is now not only well settled but in the present case conceded, that it is not. It must be some act in a degree willful or fraudulent, a reckless disregard of duty — palpable violation of trust to the prejudice of the ship and cargo.
The earliest case in the English courts of common law relating to barratry is that of Knight v. Cambridge (reported in Strange, 581, also in Modern Rep., 230, and in 2 Ld. Raym., 1349). In that case, it was held that the neglect of the captain, in not doing his duty by paying port duties before the ship went out of port, was adjudged to be barratry, as a matter of law. (Vallejo v. Wheeler, Cowp., 143.) I do not find that the correctness of this judgment was ever questioned in any subsequent case, although the definition of barratry given in some of the reports of the case have been largely questioned.
In the case of Moss v. Byrom (6 T.R., 379), the vessel was, by the charter-party, to sail from the Bahama Islands directly to Liverpool. The master took out letters of marque, but irregular in form. He stopped an American vessel on the high seas and robbed her. He then took a prize and sent her into Bermuda, where he libeled her in his own and his owner's names. While in Bermuda, a storm arose, and the vessel was lost, with the goods belonging to the charterers on board, which were insured. The action was against the underwriters to recover the loss, and they where held liable. Lord KENYON, and the whole court, said that the act of stopping and robbing the American vessel was an act of barratry, because it was contrary to his duty to his owners. It was also held that the deviation was an act of barratry, which entitled the plaintiffs to recover. This case was obviously very much criticised at the bar, as appears from the report of Phyn v. The Royal Exchange Assurance Company (7 T.R., 501). In the latter case it appeared that the vessel was to sail from London to Jamaica, but was driven by unfriendly currents out of her course. When recovering her reckoning she was found to be between the Grand Canaries *Page 540 and the Island of Teneriffe. In this location it was agreed that her course was south-west, instead of which the captain bore up for the Island of Santa Cruz, which lay north-west, and in sight, about thirty miles distant, and there came to anchor, as was supposed, to get refreshments, or in some way for his own accommodation. In this condition, an embargo was laid upon the vessel by the Spanish government, and on the news of the declaration of war between Spain and Great Britian, the vessel and cargo were afterwards condemned as a prize. The action was brought to recover of the underwriters, either by reason of a loss by capture or by barratry. Lord KENYON, before whom the cause was tried at Guildhall, in 1793, thought it could not be barratry without a fraudulent purpose in the captain at the time, and he left the question to the jury with that direction, who found that the captain's going to Santa Cruz "was a deviation, and was either owing to ignorance or something else, but that it was not fraudulent," and found a verdict for the defendant. A new trial in that case was refused, simply because the jury had found the fact that the deviation was not fraudulent, and therefore there was no barratry which, as ASHURST, J., said, had been negatived by the verdict of the jury, that there was no fraud in the case.
Mr. Justice JOHNSON, in the case of The Patapsco InsuranceCompany v. Coulter (3 Peters, 222, 234), said: "Certainly a master of a vessel who sees another in the act of scuttling or firing his ship, and will not rise from his berth to prevent it, is prima facie, chargeable with barratry. Although a mere misfeasance, it is a breach of trust, a fault, an act of infidelity to his owners. So, if, in the hight of a storm, the captain and crew turn in without resorting to the nautical precautions of laying the vessel to, and otherwise prepare her to overcome the peril, it will be left to a jury to determine if such conduct be not barratrous."
These references serve to indicate the nature of some of the acts of the master of a vessel which have been or may be adjudged barratrous, and it is apparent that to constitute *Page 541 the act of barratry the act of criminalty or fraud need not necessarily be very gross in its character, but as was said by Ch. J. SHAW, in Lawton v. The Sun Mutual Insurance Company (supra), it is not "necessary that there should be fraud in the sense of an intention on the part of the master to promote his own benefit at the expense of the owners, but any willful act of known criminalty, or gross malversation operating to the prejudice of the owner is, in, legal contemplation, barratry." It seems to follow also, that generally, unless the act of the master is of such a character, that the presumption of criminalty arises from the act itself, the question of motive and intent is for the jury, as in the case of a deviation, which is barratrous or not, as the intent of the master is found to have been evil or innocent. In our law, it is now quite well settled that most questions of mere negligence are for the consideration of a jury, and when the result depends upon the question whether any given act is fraudulent or criminal or otherwise, the fact must be determined by a jury, and to this rule there is scarcely an exception. It has been attempted to abolish all degrees of mere negligence, but the effort, in a practical sense, is as idle as would be an attempt by the courts to abolish human stupidity or depravity. Where a case depends upon mere negligence in a high or low degree, the legal rule may be applied without regard to degrees of stupidity or neglect, but no judge will fail to observe the real difference, between some very trivial fault, and the very grossest inattention. It has often been decided, that gross negligence while not mala fides per se, is yet evidence of it. Lord DENMAN said, in Goodman v. Harvey (4 Adol. and Ell., 870): "The question I offered to submit to the jury was, whether the plaintiff had been guilty of gross negligence or not. I believe we are all of opinion, that gross negligence only would not be a sufficient answer where a party has given consideration for the bill; gross negligence may be evidence of mala fides, but it is not the same thing."
The cotton, to recover the value of which this action was *Page 542 brought, was insured by the defendant, on a voyage from Columbus, Georgia, via Charleston, to Liverpool, among other things against the "barratry of the master and mariners." On or about the 3d of November, 1866, 125 of the 202 bales of cotton covered by the policy of insurance were put on board the bark Victoria, at Charleston, for Liverpool, and previous to this time the master had given a clean bill of lading for the entire shipment. It is agreed that this required that the cotton should be stowed under deck, a fact which the master was not only bound to know, but did know. He, however, stored ninety bales of the cotton on deck, and in that condition sailed for Liverpool. In a violent storm at sea, on the passage, this cotton was thrown overboard to save the vessel, and lost. I find it difficult to invent any excuse for the act of the master in stowing the ninety bales of cotton on deck under the circumstances of this case. As it turned out, it was quite as disastrous to the interest of the plaintiffs as if he had scuttled and abandoned his vessel and cargo at sea. He violated his duty and he knew it, and was also admonished of the fact. It seems a little difficult to distinguish the act from that of sailing without the payment of port duties, save, perhaps, that in the latter case the act was illegal, and in this perhaps the act was only a gross violation of duty. The question whether any given act of the master of a vessel is barratrous or not generally depends upon the intent with which the act was done. Illegal acts are often committed without any intent to do wrong, as by ignorance, mistake or inadvertence, or other cause not having any semblance of criminality. Unless, therefore, it be held that every illegal act of the master is per se an act of barratry, without any regard to the intent, the circumstance that the act was illegal does not appear greatly to distinguish it from any gross violation of duty or fraudulent conduct to the prejudice of the ship or cargo. I do not see that an insurance of the cotton on deck at all changes the character of the wrongful act of stowage. If of any use, it could only be for the benefit of the owners. The owners of the cotton did not choose to rely upon *Page 543 the responsibility of the owners for the misconduct of the master and mariners, and therefore secured themselves by insurance on the cotton, and it was quite immaterial to them whether the owners effected an insurance for their own protection or not. No insurance of that character was effected, and the efforts in that direction do not appear to be entirely satisfactory. And if the question was at all important, it was one for the jury. And the question of the assent of any one assuming to represent the owners to the master's act of stowage was obviously of the same character. It may be true that the cotton on deck was not, by reason of the improper stowage, covered by the policy against the sea perils insured against, but it is equally true that if the wrongful stowage of the cotton on deck was an act of barratry, it was insured against under the barratry clause, or otherwise such a clause in a marine policy is without sense or meaning. The question whether the act was barratrous or not was one of fact, and I think in this case ought to have been submitted to the jury. If, as is argued on the part of the defendant, the act of the master in stowing the ninety bales of cotton on deck was to carry all the cargo and earn all the freight he could for his owners, inasmuch as he knew he was violating his duty and taking the hazard of uncommon perils, it rather tends to show his conduct was not free from suspicion of its entire innocence.
It is argued that the proximate cause of the loss was the jettison of the cotton to save the vessel, which was not barratry. There is nothing tending to show that the jettison was an act of barratry, but that is quite unimportant if, upon the evidence, a jury could properly say that the stowage on deck was willful and fraudulent, for then it was barratry and the proximate cause of the loss.
The case should have been submitted to the jury.