8 Johns. 272 | N.Y. Sup. Ct. | 1811
The master of the vessel was to be considered as owner pro hac vice, or for the voyage insured. There was a complete letting of the entire vessel for the voyage. The master was to victual and man her at his own cost. He had the whole management and control, and according to the principle established, or admitted, in the cases of Velleijo v. Wheeler, (Cowp. 142.) M'Intyre v. Bowne, (1 Johns. Rep. 229.) and James v. Jones, (3 Esp. N. P. 27.) the person having such an interest and authority in the ship, is regarded as the temporary owner. There is no doubt that the master’s conduct was fraudulent and amounted to barratry, provided that barratry could be committed in the situation in which he stood. But it appears to be perfectly well settled, that if the master of the ship be at the same time the owner, he cannot commit barratry, because barratry can .only be committed by the master or mariners in relation to the owner of the ship. He may, as owner of the ship, make himself liable, by his fraudulent conduct, to the owner of the goods, but not as for barratry. (Lewin v. Suasso, Marsh. 528. note. Nutt v. Bordieu, 1 Term Rep. 323.) It has been suggested that the reason of the .rule is, that no man shall be allowed to derive a benefit from his own crime, which he would do were he to recover against the insurer for a loss occasioned' by his own act; and that to make the reason of the rule apply, the i¿aster should have been owner of the goods» ' The answer' to this is, that a rule of commercial law when once settled, ought not to be disturbed, even though the reason of it may be justly questioned. Uniformity of decision is of more importance in such cases than accuracy of reasoning. That the insurer should be held responsible in any case to the owner, for the fraud
The motion, therefore, for a new trial ought to be granted, with costs, to abide the event.
