Barker v. Marine Ins.

| U.S. Circuit Court for the District of Rhode Island | Nov 15, 1821

STORX, Circuit Justice,

(after stating facts.) The sole question in this case is, whether the plaintiff has an insurable interest It is contended, that the plaintiff has an insurable interest; 1. By virtue of his purchase at the sale at Bristol; 2. As trustee for the underwriters, and having a special interest in the safety, in consequence of his responsibility for the proper management of the property. I lay out of consideration, altogether, the question, whether there might not have been a valid insurance of this property for the underwriters, the abandonment having been accepted by them, and of course the property having vested in them, because this insurance purports only to cover the interest of the parties named in it; and is not made “for whom it may concern.”

[NOTE. See Potter v. Marine Ins. Co., Case No. 11,332, apparently involving the same subject-matter. from which it appears that the owner recovered upon another policy.]

As to the first point, it appears to me. that the sale wrought no change whatsoever in the title of the property. It was a merely inoperative act, leaving the property exactly where it found it. It is impossible, that a person can at the same time be buyer and seller; and a person, who acts as agent in selling, cannot upon the known principles of law become a purchaser at the sale. This doctrine was acted upon by this court in the ease of Church v. Marine Ins. Co., [Case No. 2,711,] and the cases there cited; and I see not the slightest reason to change the opinion then expressed. In truth, it is clear from the facts of this case, that the master did not contemplate this as a purchase on his own private account (which by the rules of law he would be prohibited from making); but as a purchase for the benefit of the owners. He bought in the property with the sole view of preventing a sacrifice of it, and a loss to the owners, whoever they might be. In so doing, he did nothing more than his duty; but it is a misnomer of the transaction to call it a sale; it was the prevention of a sale by the master. The property never passed from the owners; and the case stands exactly the same, as if the property had been bid in by the owners themselves.

Then setting aside all consideration of the sale, how does the case differ from the ordinary case of a master entrusted with the property of his owners. It will not be pretended, that a master ex officio is entitled to make insurance for his owners; and if he is not, I do not perceive, how the case is varied in respect to underwriters; becoming owners by an abandonment in the course of the voyage. It is true, that the master was intrusted with the care of this property for the owners, and was bound to take all reasonable measures to preserve it, and that is exactly his duty in all cases. But, strictly speaking, he has no interest in the property. He is a mere agent, or carrier. If the property is lost in the course of the voyage without his fault, it is the loss of the owners, and not his loss. He has not an insurable interest, because he may be 'responsible for negligence; for this insurance is not against a liability to actions, but against loss of prop erty. It purports to be an insurance on property; and here the property belonged to the underwriters, and not to the master. The case of a trustee entirely differs from this; a trustee has the legal title to the property in himself. He is the owner at law, whoever may be the cestui que trust beneficially interested.

Having said thus much .on the case, the subject is, in my view of it, exhausted. Unless the court were prepared to say. that in all cases a master of a ship has an insurable interest, because he has the custody of it, it is impossible to sustain the plaintiff’s claim. The verdict must therefore be amended, and a verdict entered 'for the defendants.

Judgment accordingly.