Crousillat v. Ball

4 U.S. 256

• Court: Supreme Court of Pennsylvania
• Decided: December 15, 1803
• Status: Published

Opinion

Yeates, Justice,

delivered the charge of the court, to the following effect. In this action, evidence .has now been given upon a ground distinct from any, that was taken on the former trials ; and the only question to be decided is, whether the cargo insured was lost by the barratry of the master ?

For the plaintiff, E. Tilghman, Du Ponceau, E. S. Burd and Dallas. For the defendant, Ingersoll and Rawle.

Barratry is an act committed by tbe master of a vessel, of a criminal nature, without the license or consent of the owner. There must be fraud in the transaction ; a selfish and sinister design, for the master’s own interest ; for if the act is done solely to benefit the owner, it does not constitute barratry.

It is the province of the jury to decide upon the credit of the witnesses, and the amount of the evidence. The enormity of the doceur, the lapse of time, and other circumstances, are calculated to excite doubt and suspicion. If, however, the jury think, that the master meant to take the premium, for covering the property, to his own private benefit, in exclusion of his owner; and not, in the first instance, to pay it to the owner, expecting from him a gratuitous compensation or reward, the act of barratry is proved, and the plaintiff must recover; unless the evidence shall satisfy the jury, that the master was the general agent and consignee of the plaintiff, and acted as such. In that case, the law is equally clear, that the acts of a general agent cannot, any more than the acts of the principal himself, be denominated barratry.

The other objections that have been made by the defendant’s counsel, appear to be satisfactorily answered, in the course of the evidence and the argument. The proof of interest in the cargo is strong ; and most clearly, the case is not a case of illicit trading, within the meaning of the warranty. *2971 nature ^’indirect intercourse with New Orleans, a Spanish -1 colony, was well known to the underwriters ; and in truth, the trade would not be illicit, if it was fairly carried on. Even in that respect, therefore, the objection cannot be sustained; and as it respects the violation of neutral character, it is the very ground of the plaintiff’s right to recover if the violation was committed for the private purposes of the master of the vessel. For, here we repeat, the sole question to be decided, is, whether the master, in breach or evasion of his orders, did a fraudulent act, in the course of the voyage, tending to his own benefit, and to the prejudice of his owner ?

(a) If he did, the verdict must be for the plaintiff. If not, or if what he did was in the character of a general agent, the verdict must be for the defendant. (b)

Barratrous acts are of two kinds, and are merely fraudulent or criminal. As to the first class of cases, it is always important to ascertain, whether the conduct of the master promoted his own interest; for if it did in any considerable degree, and especially, if his interest was in exclusion of his owners, the presumption is violent, that his intent was fraudulent. But the test of self-interest will not be sufficient to decide the second class of cases, which arise from crime. The crime which constitutes barratry, is “a wilful breach of law, to the prejudice of the owners.” In this point of view, it is of no importance, whether the master acted with reference to his own interest or not. Wilcocks v. Union Insurance Company, 2 Binn. 580; Dederer v. Delaware Insurance Co., 2 W. C. C. 67. See also the opinion of Brackenridge, J., Calhoun v. Insurance Co., 1 Binn. 321. But see Hood’s Executors v. Nesbit, 2 Dall. 137; s. c. 1 Yeates 114.

In this case, the jury not being able to agree, were consti tut »d referees, by corn sent of parties, and made a report in favor of the plaintiff.