Steinbach v. Ogden , 3 Cai. Cas. 1 ( 1805 )

Per curiam delivered by

Thompson, J.

There is nothing in the case, tending to shew, that the agent of Steinbach had any knowledge of the manner in which McCulloch had conducted himself, or that he pretended to be owner of the vessel. All the circumstances stated, lead to the conclusion, that McCulloch was considered by him as master only. He appeared in the character of master. The bill of lading was signed by him as master. The agreement respecting the freight was made with him as-master, as the witness understood. Under this statement I think the agent must be deemed, prima facie at least, as dealing with him in the character of captain, and in no other capacity. addition to which he is described in the policy as master, so that the underwriter contracted to indemnify the plaintiff against tjie j)arra(-ry 0f this very man. It could not be incumbent on the assured to prove that the master was not the owner of the vessel. That would be calling on him to establish a negative. Proof of that fact, which is to operate as a discharge of the underwriter, lies on him ; and if the master was not the owner, it is immaterial, as it respects the present question, who was. It is unnecessary therefore to examine or determine whether the general freighter is tobe considered owner jiro hac vice, or not; for, it being admitted that MCulloch went to the Havana for fraudulent purposes, the underwriter will be liable for the loss by barratry, unless the master was also owner. I am satisfied that M'Culloch could not be considered as the owner. There does not appear to have heen any necessity for selling the vessel at St. Bartholomew’s. Independent of this, however, it is .expressly admitted, that the sale and all the proceedings were fraudulent. Such sale cannot be made the basis for establishing any rights, or exonerating from any responsibilities. It must, in judgment of law, be deemed ifiso facto void. The onus of proving that McCulloch was owner lay on the defendant, and it cannot be tolerated in a court of justice, that a party should be permitted to derive any benefit or advantage from a transaction confessedly founded in fraud. The opinion of the court, therefore is, that the plaintiff ..is entitled to recover as for a total loss.