Clark v. Washington Insurance

100 Mass. 509

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1868
• Status: Published

Opinion

Chapman, C. J

It appears that the bill of sale from French to the plaintiffs, though absolute in form, was given merely as collateral security for a debt, and that the plaintiffs had never taken possession of the vessel, but French retained possession. Parol evidence is admissible to show the true character of such a transaction. Howard v. Odell, 1 Allen, 85. Blanchard v Fearing, 4 Allen, 118.

The plaintiffs had an insurable interest as mortgagees, distinct from that of French. He had no interest in the policy, and they had nó right to charge the premium to him. King v. State Insurance Company, 7 Cush. 1. Suffolk Insurance Company v. Boyden, 9 Allen, 123. The mere charge of the premium to him, without his authority or knowledge, was a void act.

The insurance was against the barratry of the master “ unless the assured be owner of the vessel.” The object of such a clause is to protect the insurer against fraud on the part of the agent of the assured. But the vessel having been sent out by French, he is to be regarded as owner pro hac vice. Soares v. Thornton, 7 Taunt. 627. Cutler v. Winsor, 6 Pick. 335. The master having been appointed by him, was his agent, and not the agent of the plaintiffs.

Fraudulently running the vessel on shore, causing survey, condemnation and sale, constituted a barratry of the master. Goram v. Sweeting, 2 Wms. Saund. 202, n. 13. Jones v. Nicholson, 10 Exch. 28. It furnished ground of abandonment for a total loss. Dixon v. Reid, 1 D. & R 207; S. C. 5 B. & Ald. 597. Judgment for the plaintiffs on the verdict.