13 Johns. 451 | N.Y. Sup. Ct. | 1816
delivered the opinion of the court. The loss in this case is alleged to have been by fire. The policy contains the usual clause, specifying the perils insured against. The facts in this case briefly are, that the vessel being partly laden with powder, a candle was carelesly put up by the binnacle, which took fire, and communicated to the pówder, and the vessel was blown up, and lost, The question is, whether the underwriters are responsible ? On the part of the assured, it is contended, in the first place, that this was a'loss by barratry; and if not, still, under the general words in the policy, the underwriters are answerable for all losses by fire.
It appears to me imposible to consider the negligence by which the loss was occasioned as amounting to barratry. It would be absurd to suppose .the powder was set on fire by design, and the vessel blown up intentionally, as it must, most probably, have caused the destruction of the whole crew.
It is wmll settled, that an act, to be barratrous, must be done with a fraudulent intent, or ex maleficio. Barratry is a fraudulent breach of duty, in respect to the owners. This is the established doctrine, both in the English courts, and in our own. (8 East's Rep. 138. 2 Caines’ Rep. 71.) We look, in vain, for any one fact in the case, indicating a fraudulent intention. It is, therefore, a loss occasioned by pure negligence.
The next inquiry is, whether such a loss comes within the policy: I think it does not. No adjudged case is to be found directly in point; and all that is to be collected from the elementary writers upon the question, is rather matter of inference. It is laid down by Marshall, (Marsh, on Ins. 421.,) that a loss occasioned by fire, which is merely accidental, and not imputable to any fault of the master or mariners, is a loss within the policy. This is the rule in England. The inference necessarily to be drawn from it is, that when the fire is occasioned by the fault of the master or mariners, a loss, occasioned thereby, is not to be borne by the underwriters. In France the underwriter is’not held answerable in such case, unless, by the policy, he is liable for barratry. But ip France, barratry comprehends
Underwriters have no .concern with the competency Or skilful* ness of the master, or crew, '.(..These aré-matters which concern the owners; and any deficiency, in this r.espectf-renders ¡the vessel linseaworthy.’' If a master, from ignorance or unskilfulness, or from any motive not fraudulent, should depart from the proper course of the voyage, and a loss happen thereby, the underwriter would not be liable, byreaspn of the deviation, (Marsh. 446.) There are many cases of -injury and -losses prising from the fault and negligence of the master'and mariners, where the remedy is against the master or owners, , as by bac} stowage,wet,, and many others. '(Marsh. 156.).
Although the. insurance is against loss by fire generally, yet this must be understood as relating to fire occasioned by some ' sn.eans pr act for which the underwriters are responsible; The same rule must bé applied tp this risk as. to the,other, enumerated fis-ks in the policy. In-the ease of Vos & Graves v. The United Insurance Company, (2 Johns. Cas. 180.,) thp insurance w§§
There are many losses, occasioned by some of the perils enumerated in the policy, which may happen under circumstances that would not make the underwriters chargeable. These géneral terms are used, in reference to.the established rules of law .• ■ and it is with an eye to those rules, that-they riiust be ex» pounded. Insurance against fire is not the exclusive object of a. marine policy. It is enumerated among the perils,.in reference to the settled principles of marine law-; and we must look to that law, to ascertain the excepted cases. - None of the -observations here made are intended to. apply to land insurances-against fire.' There the sole object is indemnity against loss by fire ; and the general and settled rules of law, applicable to this subject, must be resorted to in construing such policies.
Upon the whole, therefore, the result of my opinion is, that this cannot be considered a loss by barratry, but by the care* lesness and negligence -of the crew, for whicji the underwriters are not responsible; and this is the opinionof the court. The defendants are, accordingly, entitled to judgment.
Judgment for the defendants.'
6th ed. p. 30