Harris v. Mercantile Insurance

17 How. Pr. 188

• Court: New York Supreme Court
• Decided: January 15, 1859
• Status: Published

Opinion

Davies, Justice.

The question presented for decision on this demurrer is, whether the words in the policy, “ unless the assured be owner or part owner of the vessel,” refer exclusively to the barratry of the master and mariners, or are to be taken as applicable to the other perils insured against, those of the seas, first, rovers, assaulting thieves and jettisons.

It seems to me that, such cannot be the construction to be given to- this policy. It certainly never could have been the intention of the parties thus to have qualified the contract of insurance. It would be unmeaning if these words were not thus construed, as applied solely to the words they stand in juxtaposition, the barratry of the master and mariners. Lord Mansfield thought it very strange that the underwriter should undertake to indemnify against the misconduct of the master, who is. the agent of the insured, and subject to his control. (3 Kent's Com. p. 402.) The same writer says, that in some countries barratry is expressly excepted from policies, in others not insurable. He also says, that in some of our American policies the risk from barratry is. qualified, it is “barratry of the master (unless the assured be owner of the vessel), and mariners.” (3 Kent's Com. p. 402.) This qualification is precisely what the parties have made in this case.

There must be judgment for the defendants on the demurrer with, costs.