UNITED STATES SUPREME COURT DECISIONS ON-LINE

CASE, on a policy of insurance upon ship and cargo, containing a warranty against seizure or detention, for any illicit, or prohibited, trade. [Footnote 1] It appeared, in evidence, that the vessel and cargo were owned by the plaintiff, and were insured on a voyage from Philadelphia to Cape Francois; thence to New Orleans; thence back to the Cape; and from the Cape back to Philadelphia. When the vessel had arrived at the Cape, on the return voyage, war had broken out between Great Britain and France; and the calamities of St. Domingo compelled a number of its inhabitants, to seek an asylum in the United States. The captain of the vessel (who was addressed to merchants at the Cape, and only in case of their absence was entrusted with the disposition of the cargo) undertook to cover, as American property, a considerable quantity of coffee and cash, belonging to two of the fugitive Frenchmen; under a bargain, that they should pay to the owner of the ship a certain sum for passage money, and for the freight of the coffee; and to the captain, for his own separate emolument, 50 half- johnannes in hand for covering the cash, with a contingent of 200 half- johannes more, on its safe arrival in the United States; and a sum equal to the freight, for covering the coffee. The vessel was captured and carried into Jamaica, and both vessel and cargo libelled as prize, in the Court of Vice-Admiralty. The captain filed a claim, for the ship, and the plaintiff's part of the cargo, and for freight on the covered

Page 4 U.S. 294, 295

part of the property; but in his answers to the standing interrogatories, he had sworn, that the whole cargo belonged to the plaintiff, and that there were no papers on board, except such as he had delivered. On searching the vessel, however, the bills of lading, letters, and other papers, relative to the covered property, were found concealed; the whole cargo, including the master's own adventure, was condemned; and though the vessel was acquitted, upon further proof of American ownership, sent by the plaintiff from Philadelphia, it was expressly without freight, on account of the master's fraud. When notice of the capture was received, the plaintiff abandoned to the underwriters, stating 'that the voyage was defeated, and the cargo taken out of the hands of my agent,' the captain.

On two former trials of this cause, the argument turned entirely upon the question, whether the underwriters were responsible for a loss thus occasioned by the misconduct of the captain, who was the agent of the owner? And the COURT were clearly of opinion, that by taking on board the property of Frenchmen, and covering it as the property of the plaintiff, the risque had been increased; that the perjury of the captain had, also, involved the neutral property, in the jeopardy of the belligerent masked property; and that, in fact, his misconduct, from beginning to end, had produced and justified a condemnation. Considering him, therefore, as he must, in law, be considered, in the light of the plaintiff's agent, the Court thought, that the plaintiff was not entitled to recover.

On the present trial, the plaintiff rested his right to recover, on the barratry of the captain; and urged, 1st. That although fraud is essential to constitute barratry; yet, if a captain of a vessel is guilty of a fraudulent act, with intent to benefit his owner, who is ignorant of the act, and neither authorised, nor assented to it, it is a case of barratry, within the indemnity of a policy of insurance. 1 Stra. 581. 2 Raym. 1349. Cowp. 154. 1 T. Rep. 259. 3 T. Rep. 278. 4 T. Rep. 36. 6 T. Rep. 379. 2 Dall. Rep. 137. 2d. That the captain acted, on the present occasion, as captain; and was guilty of a fraud, with a view to his own separate interest and emolument; which clearly amounted to barratry, though the ordinary freight and passage-money, were secured for his owner. And if barratry is committed, the insurers are answerable, although the loss is not the direct and necessary consequence of the barratrous act. 3d. That the captain was not the general agent and consignee of the plaintiff; and when he undertook to cover the property, he manifestly acted as captain, for his own benefit, and not as agent, for the benefit of his principal, upon a commission to be paid by the principal. 4th. That a warrantry against a seizure for illicit trade, means a seizure in the trade, in which the owner employs the ship; not a [4 U.S. 294, 296]

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