Grim v. Phœnix Insurance , 13 Johns. 451 ( 1816 )

Thompson, Ch. J.,

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 every fault* either of the master or .mariners, by which a loss is occasi0hed* whether arising from.fraud, negligence, unskilfulñess, ¡pr mere imprudence. /(Marsh. 445.)In England, ■ if the loss could be attributed to barratrous misconduct, the under-, writer would be held liable. It has always been matter, of surprise, that underwriters should insure the ¡good conduct* In any case, of the master and crew, with the appointment of whom they have no concern ; (1. Term Rep. 330. 8 Johns. Rep. 277.;). and they would not be responsible for their conduct were it not. for their express -stipulation. The master and mariners aré not the agents or servants of the Underwriters,, so as to war1 rant the application of'the general, rulés of. law id such cases. The liability of the underwriter for their conduct depends Upon the stipulation in the policy, which embraces only the case of barratry. If, by-.the general rules of law,, underwriters are-responsible for the mere carelesness. and negligence of the master and mariners* it would seem to follow, as a necessary part of the .’samé rule, that they would be liable for their fraudulent misconduct ; and, of course, it- .was entirely unnecessary to insert in the policy any express engagement to become answerable for losses By Barratry. . The very circumstance of assuming the risk of barratrous conduct, affords a strong presumption, that the underwriters are responsible only for :spch misconduct as pmounts to barratry.

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§§ against capture; and, although the vessel was captured, still the underwriters were held not to be responsible, because the capture was occasioned by the misconduct of the master, in sailing towards, with an intention to enter, a blockaded port, Kent, Justice, in his opinion, says, such an attempt takes away from the assured his right to recover; for he never can be allowed to indemnify himself upon an innocent party, from the consequences of his own want of skill, or from his negligence or folly. The act of the master must be referred to his principal, who appoints him; and, whenever a loss happens through the master’s fault, unless that fault amounts to barratry, the owner, and not the insurer, must bear it. That the risk of fault in the master (barratry excepted) is not a risk enumerated in the policy; and it would be very unreasonable, that the in-! surer should be holden, beyond his express undertaking, for the fault or folly of the master, whom the insured selects and controls. So, in the case of Cleveland v. The Union Insurance Company, (8 Mass. Rep. 308.,) in the supreme court of Massachusetts, the loss was by capture, occasioned by the negligence of the master, in leaving the ship’s register in theIsle of France, and the underwriters were held not to be answerable. Sedgwick, justice, said it could not be pretended, that this neglect was a risk expressly insured against, or any risk assumed by the underwriter ; and he goes on to show that the remedy must be against the owner; that he is responsible for all losses arising from the negligence, ignorance, or wilful misconduct of the piaster, that do not amount to barratry. He says, expressly, that the underwriters are not answerable for a loss resulting from the gross negligence or ignorance of the master. The observations made in these cases apply, with great force, to the one now before us, and go to establish the principle, that underwriters are not,responsible for any fault, negligence, or misconduct of the master, or mariners, which does not amount to barratry. And that their liability even for barratry, arises from its being an express stipulation in the policy. Park,^* (24.,) after enumerating the perils designated in the policy, observes that, although the words are so general, there is a great difference between damage sustained by goods, from injuries on board a ship, and that which occurs from external accident; that the insurer is ¡j^ble for the latter, but, with respect to the former, as they aye neglects attributable to the más ter, the ship, and not the íftsui'ér, ought to fee answerable. .

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