Cook v. Commercial Insurance

11 Johns. 40 | N.Y. Sup. Ct. | 1814

Per Curiam.

There is no ground for the distinction taken by the defendants’ counsel, that the master can only commit barratry as to the vessel, and as to the cargo belonging to third persons, but not as to the cargo which is owned by the owner of the vessel. The law permits the oivner of the ship to be insured against the misconduct of the captain and crew, though they are his own agents, and persons of his own choice. It is too late to question the law, ivhatever we may think of its policy. And as the owner of the vessel can be insured against the barratry of the master, committed against the vessel, there is no reason ivhy he should not be equally insured as to the cargo. The principle is the same, and all the cases in the English law, which define barratry, render it sufficiently comprehensive to embrace the oivner of the cargo, notivithstanding he may happen to be also oivner of the ship. Barratry includes every spe cies of fraud, concerning either the ship or cargo, committed by the master in respect to his trust as master, to the injury of the owners or shippers. It was for the defendants to show the ex-ceP^on> and the books afford no pretence for any; on the contrary, the case of Crousillat v. Ball (4 Dall. Rep. 294.) is an authority against the exception. That was a policy on ship and cargo, and both ship and cargo were owned by the plaintiff, who recovered on the charge of barratry committed particularly in respect to the cargo.

Nor can the barratrous act be referred to the master in hie character of consignee. The cargo consisted partly of specie, and when the captain arrived at New Orleans, he converted the specie to his own use, abandoned the voyage, and absconded. This was clearly a criminal breach of duty in his character of master of the vessel, and though he had a superadded character of consignee, the act is properly imputable to him as master. (8 East, 140. 2 Caines’ Rep. 72.)

Judgment for the plaintiffs for a total loss;