On the special verdict found, two questions arise. 1st. Whether sufficient facts are found by the jury, on which the court can render judgment. And 2dly. If so, whether on these facts, the conduct of captain Keeler, master of the ship American, amounted to barratry, or deviation only. If the latter, the underwriters will be excused from the policy.
We apprehend, the facts found to be sufficient for the court to render judgment. Enough is set forth to determine our opinion. The jury need not ascertain precisely by name, that it was either deviation or barratry. The court from the circumstances of the fact found, can judge whether it amounts to barratry or deviation only. As to this, the case in 1 Term Rep. 323, is full in point.
We are also unanimously of opinion, that the facts found amount to a deviation only. It is an essential ingredient in *118barratry, that there be a criminal act or intent, or gross negligence on the part of the master or mariners, tending to their own benefit, and, to the injury of the owners or freighters of the ship, and without their privity or consent. The jury have found, that captain Keeler did not intend any exclusive profit for himself, but sailed on -the cruize for the benefit of his owners and himself, in quest of the sloop Fly, which had been piratically stolen away by her seamen. His conduct may have been imprudent; but in our idea, partakes more of humanity than criminality.
But the deviation being- fully found, it discharges the underwriters from any responsibility, and therefore judgment must be entered for the defendants.
Justice Bradford. As this is a mercantile question, which divided a very respectable jury, I think it right to state the reasons of my opinion, pretty much at large.
The special verdict states a voluntary departure from the due course of the voyage, without any necessary or just cause. This will therefore discharge the policy, unless the circumstances attending it prove it to be (as the plaintiffs contend it is) an act of barratry.
Before I Take notice of these circumstances, it will be proper to ascertain, what is meant by barratry. It has been often defined, and its general meaning seems now as well fixed as that of *any term known in the law. From r*iio comparing these definitions, it appears that the terms “villainy, knavery, cheat, malversation, trick, deceit or fraud “of the master” are used as sjmonimous with it. The adjudged cases from that of Knight v. Cambridge (3 Ford Raym. 1349.) in 1724, down to that of Nutt v. Bourdieu (1 Term Rep. 323) in 1786, speak the same language. There is no case of barratry in which we may not perceive some fraud or criminal conduct in the master.
Sailing out of port without payment of duties is not an exception. This is said to be neglect, but it is more; it is evidently a fraudulent and criminal act exposing a ship to forfeiture, for the dishonest purpose of putting money in his own pocket. (Cowp. 152.) .
It may be sometimes difficult to distinguish the lower species of fraud from the higher degrees of mere misconduct. But one thing is clear; if the facts are not strong enough to import some fraud or criminal conduct in the master, whatever name we may give to his conduct, we cannot call it bar-ratry.
The question then is, ‘1 do the facts found by the special “verdict fix any fraud or criminal conduct on captain “Keeler?” If they do, it must be either, because the departure was without his owners’ knowledge, or because it was made with a view to his own private benefit. It was not much urged at the bar, that every deviation without orders *119amounted to barratry; yet as this was the very point upon which I have reason to think the jury divided in opinion, I will notice it.
It is true, that in many of the commercial cities in Europe, a deviation without the owners’ consent will not discharge the insurers. It is so established in France (2 Magené 174.) Amsterdam (lb.) Middleburg (lb. 73.) and Rotterdam (lb. 92.) But this is the operation of positive ordinances. No such regulation is known among us. On the contrary, Ford Mansfield lays down the rule in 1 Burr. 347, in these words: “If the voyage is altered or the chance varied by the fault of “the insured, or of the master, the owner ceases to be liable.” Parke pa. 336, is clear, that At makes no difference whether the insured were or were not consenting to the deviation. If the term insured is thought equivocal, Weslcet is more express, and in pa. 165, says, it makes no difference whether the owner of the ship or the proprietor of the goods were or were not privy to the deviation. In Elton v. Brogden (2 Stra. 1264,) the deviation was against the express and positive orders of the owners, yet it was not barratry. Cases might be multiplied, but the point will not bear further comment.
But the master’s intention was relied on by both parties. It *1201 *was admitted, that if the master had deviated with a -I view to his private advantage alone, and without intending any benefit to his owners, it would have been barra-try. The law is so, and the reason is plain: such conduct imports fraud on the face of it. It is a cheat upon the owners, and secretly putting into his pocket what belongs to them. O11 the other hand it was agreed that if the departure had been for the exclusive benefit of his owners, it would not have been barratry. And why not? Because it is impossible to impute fraud to such disinterested conduct.
The case before us, is a middle case, between the two I have mentioned. “The master did intend the profit he “might have gained, should be for the benefit of himself and ‘ ‘ his owners; ’ ’ and while the defendants urge that his attention to his owner’s benefit, renders it a mere deviation, the plaintiffs contend, that the private views poison the whole transaction, and make it barratry. Inconveniences appear to result, from either construction, and I think it would be mischievous to give the captain’s conduct from this'circumstance alone, a definite name.
It does not of itself sufficiently import either fraud or fairness to acquit or condemn the transaction. Cases may be put where an attention to his own interest will not be inconsistent with the general purity of the master’s views: or where, while he unites a small interest of his owners with a greater one of his own, we may discover a dishonest heart regardless of their essential interests. In all cases therefore of *120this kind, we must weigh every circumstance, and form our judgment from the impression of fraud or fairness, which the whole transaction makes on our minds.
Cited in 3 Yeates, 384.Taking into view the whole conduct of Keeler, I cannot discover any fraud or criminal conduct. Here was an act of piracy committed in open day; the pursuit of the Fly was in itself a meritorious action; and if Keeler had been the owner of the American, he would have been applauded for it. The whole mercantile world seems interested in the suppression of such villainy. He is solicited to employ his vessel on this occasion; he stipulates for a compensation, and though he expected to receive a part of it, yet that must have depended on the pleasure of his owners. It would have been their money earned by their ship, yet the captain might honestly expect that they would approve his conduct and reward his exertions. It was a sudden thing; we cannot say that he knew of this insurance, or that he was aware of the consequences of his deviation. Here are no marks of knavery, or even of a disregard to his owners’ interest. It was an imprudence, and he is * answerable for it to his owners; but the insurers are discharged. L
For these reasons I concur with the rest of the court, that judgment must be for the defendants.