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MARCAR By the barratry of the master-
DIER
V.

1st. Because the acts imputed to him, amount to bar-
CHESA- ratry, if he were in a situation to commit it.
PEAKE
INS. CO. 2d. Because by the charter-party, the plaintiff be-

came owner pro hac vice, and M.Dougal merely master, so as to be in a situation to commit barratry.

The question to be first considered, may be stated as follows:

Whether, in case a cargo consists partly of memorandum articles, (on which no partial loss can be recovered,) a total loss is incurred by the breaking up of the voyage on account of such a deterioration of the whole cargo, (including a deterioration of the memorandum articles,) às reduces the value of the whole cargo more than one half.

· We hold the affirmative of the question.

But there are two cases which have been considered as very strong in favor of the negative. These are,

1st. The case of Wilson & another v. Smith, 3. Burr. 1550, cited also in Marsh. (ist Am. ed.) 141. This was of a ship with a cargo of corn, which, having met with a storm, was obliged to run for the nearest port to refit, where she incurred a considerable expense in' repairs. On her arrival at her port of destination, it was found that the corn was damaged to more than half its value. Lord Mansfield decided, that this loss, not being of the nature of a general average, nor arising from the the ship's being stranded, could not be recovered on the policy; for that the words of the me. morandum, " free from average, unless general, or the ship be stranded," did not make a condition, but only an exception.

The answer to this case is, that the vessel had arrived at the place of destination; the voyage therefore was not broken up, and so no total loss could be claimed on the ground, that the cargo was deteriorated more than half its value.

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2d. The other case, and that which is chiefly relied MARCARupon by the Defendants, is the case of cocking v. Fraser—Marsh. (1st Am. ed.) 144.

CHESAHere the voyage was broken up; and it was decided PEAKE by lord Mansfield, and the other justices who sat in the ins. co. cause, one of whom was Mr. Justice Buller, that if the articles for which the insurer is warranted to be free from average, except general, specifically remain after the voyage, though by sea dan age they are rendered of no value, yet, if the ship has not been stranded, this is only a partial loss, for which the insurer is not li able.

The authority of this case, it must be confessed, would go far to prevent the present Plaintiff from recovering as for a total loss, were it not for the observations made upon it by lord Kenyoni, in the case of Burnett v. Kensington, 7. T. R. 210.-Also Marsh. (1st. Am. ed.) 151. The opinion of the Court in that case tende very much to invalidate its authority.

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The principle of Cocking v. Fraser, is also overruled in the case of M Andrews v. Vaughan, Marsh. (1st. Am. ed.) 150—and Park, 114, which goes to show that, where a cargo consists of memorandum articles, if the voyage be lost, the insured may recover as for a total loss, though the cargo be not wholly destroyed. And there is, in fact, the same reason that the breaking up of a voyage, in case of memorandum articles, should constitute a total loss, as where the cargo consists of articles not mentioned in the memorandum. The general doctrine now is, with regard to both descriptions of goods, that there may be a total loss by the breaking up of the voyage:

Dyson v. Rowcroft, 3. Bos. f. Pul. 474, is another case against the principle laid down in Cocking v. Fraser.

The opinion of the Court here, was, that it is a total loss of memorandum articles, although they may remain in specie, if they become so much damaged as to be no longer worth carrying to the.port of destination.

The next question is, whether there was a total logs

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MARCAR- by the barratry of the master; and this must be de, DIER cided by ascertaining who was the owner of the vassel

for the voyage; for it is agreed on all hands, that if the CHESA- master was in a situation to commit barratry, he was PEAKE actually guilty of that offence. INS. CO.

A person may be owner for the voyage, who is not the general owner of the ship; and barratry may be committed against such person by the master, although the barratrous act of the master may bave been done with the consent of the actual general owner. Cowp. 143, Vallejo v. Wheeler. See the same case also in Marsh. (1st. Am. ed.) 454.

In the case now before the Court, Marcardier, the Plaintiff, was owner of the vessel pro hac vice, although M.Dougal, the master, was the general owner. We contend therefore, that, according to the principles laid down in the case last cited, the master was in a situation to commit barratry against the Plaintiff--that he has actually done so-and therefore that the Plaintiff is intitled to recover as for a total loss.

PINKNEY, contra.

It has been contended for the Plaintiff, that there may be a total loss by the breaking up of a voyage, if the goods on board be deteriorated more than balf. No English authority, to this effect, is recollected. The Courts in New York have so derided. it is true ; but the principle may be considered as arbitrary, and the decision as local.

According to MARSHALL, (Eng. ed.) rol 2, p. 486, if the goods insured specifically remain, and are actually landed at the port of delivery, however damaged in the voyage, the isjury will amount but to a partial loss. Why, then, should the insured have a right to abandon as for a total loss at an intermediate port, if the goods can be carried, in the same or another ship, to the place of destination? All the authorities in favor of the right to abandon at an intermediate port, are cases wbere the voyage was broken up by the incapacity of the ship to perform it. But in the present case, there was no such incapacity. The vessel

FEBRUARY TERM 1814.

DIER

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was repaired at Antigua within a reasonable time, at MARCARthe expense of one sixth of her value, and was capable of performing the voyage, with a considerable part (at least one third) of the original cargo. The case there- CHESAfore, is materially different from those cited on the part PEAKE of the Plaintiff. Vid. Park's observations in the cases INS. co. of Cocking 0. Fraser, 8 Dyson T. Rowcraft, 1. Park. (6th Lon. ed) 152. Also 2. Marsh. (Eng. ed.) 586, Manning v. Newnham.

It is the opinion of the best judges in cases of this nature, that the law of abandonment has already been carried far enough; but the counsel for the plaintiff would carry it to an extent hitherto unprecedented.

With regard to memorandum articles, all the authorities go to show that there must be an actual total loss, in order to justify an abandonment. A technical total loss, is not sufficient. The underwriters are not liable for mere deterioration, however great, of such articles : They refuse to have any thing to do with it, on account of the difficulty of knowing the real cause of such deterioration. 1. Marsh. (Eng. ed.) 227, note to the case of Cocking v. Fraser. As to memorandum articles, also, . the intermediate port makes no difference.

In the case of Dyson v. Rowcroft, 3. Bos. & Pul. 474, there was an actual total loss. The Court, in that case, do not mean to say that memorandum articles may be subject to a technical total loss.

The alleged barratry is next to be considered. The question arising on this point is, as has been already stated, whether the master, under the circumstances of the case, could commit barratry. If he could, the facts seem to show that he was guilty of the offence. But we contend that the master was, in fact, the owner of the vessel for the voyage, as well as general owner, and therefore, since barratry is a fraud against the owner, he could not be guilty of that offence, insomuch as a man cannot commit a fraud against himself. The charter. party, in this case, is of a peculiar construction; it sounds in covenant throughout ; it is clearly not an assignment of the property to the Plaintiff, pro hac vice :

CHESA

MARCAR- The master finds the crew, pays them, provides for DIER them, and has the whole management of the vessel : He

must, therefore, be considered as owner for the voyage.

In Vallejo v. Wheeler, the charter-party is not set forth, PEAKE but it is stated in the case that the freighter employed the INS. co. master and crew; and paid the crew. The Court said

it would be different if it were not a general freighting. Here the plaintiff was not a general frieghter. Loft, who also reports the case of Vallejo v. Wheeler, (Loft, 641) says, that where the master employs and pays the crew, &c. the charter-party seems to be rather a covenant, and does not make the frieghter owner for the voyage. 1. Johnson, 229, M·Intire v. Bowne. 8. Johnson 272, Hallet v. The Columbian Insurance Company. 1. Cranch, 214, Hooe & Co. v. Groverman.

HARPER, in reply.

The question as to barratry is, who had the beneficial interest in the vessel during the voyage There can be no doubt that the beneficial interest was in the Plaintiff. It is of no importance, as it regards the ownership of the vessel, by whom the crew was furnished, provided for, &c. The freighting of a vessel where the crew and other necessaries for the voyage are provided by the general owner, is merely like hiring a house ready furnished, instead of hiring it empty, where the temporary ownership is no less in the hirer, in the former case, than in the latter.

Thursday, Feb. 17. Absent.... WASHINGTON, J.

STORY, J. delivered the opinion of the Court as fol. lows:

The Plaintiff in this case contends, that there was a total loss, which anthorized an abandonment by both of the perils stated in the declaration viz.

1st. By the perils of the seas, and

2d. By barratry of the master.

And first, as to a total loss by the perils of the seas.

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