Lawton v. Sun Mutual Insurance

56 Mass. 500

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1848
• Status: Published

Opinion

Shaw, C. J.

This action is assumpsit on a policy of insurance, underwritten by the defendants for $4500, on the ship Timoleon and outfits, on a whaling voyage, commencing at New Bedford, October 3d, 1843, and to continue during the voyage and until her return to that port. The amount insured was upon vessel and outfits, both valued, the ship at $10,000, and the outfits at $14,000. Amongst the enumerated perils insured against, was barratry of the master and mariners.

The claim made by the plaintiff, and set forth in the declaration, is for a loss by the barratry of the master.

There has been much discussion among jurists as to the precise legal definition of barratry ; some difference seems to exist between the English law and the law as it prevails on the continent of Europe, on this subject; and, perhaps, in some minute particulars, the English and American authorities do not entirely agree. But we think they all agree substantially in holding, that barratry consists in wilful acts or conduct of the master, or mariners, done for some unlawful or fraudulent purpose, contrary to their duty to the owners of the vessel. The act must be wilful, and not accidental, or caused by negligence, unless the negligence be so gross as to amount to evidence of fraud. Patapsco Ins. Co v. Coulter, 3 Pet. 222, 234. It has been held not to be necessary that there should be fraud, in the sense of an intention on the part of the master to promote his own benefit, at the expense of the owners; but any wilful act of known criminality, or of gross malversation, operating to the prejudice of the owner, is in legal contemplation barratry. Earle v. Rowcroft, 8 East, 126; Heyman v. Parish, 2 Campb. 149. Every wilful act, on the part of the master, of known illegality, every gross malversation in his office, or criminal negligence, by whatever motive induced, whereby the owner is damnified, comes within the legal definition of barratry.

Some of the more prominent instances of barratry, which nearly resemble the present case, may be mentioned. Wilfu deviation by the master, in fraud of his owners, for purposes of his own, is barratry. Vallejo v. Wheeler, Cowp. 143. Dropping anchor and going ashore, to find a market for a private adventure, is barratry, which commences with the act of stopping on the voyage, for such purpose. Ross v. Hunter, 4 T. R. 33. Criminal delay of the voyage, for an unlawful purpose, is barratry. Roscow v. Corson, 8 Taunt. 684. A breach of trust by the master ex maleficio is held to be barratry. Phyn v. Royal Ex. Ass. Co. 7 T. R. 505, 509, note.

With these views of the law, we proceed to consider how far the case stated in the declaration is made out on the part of the plaintiff. When this action came on to be tried, and it appeared that the evidence was all in writing, consisting of correspondence, accounts and depositions, the case was taken from the jury, without a verdict, by consent of parties, and submitted to the whole court, upon the evidence, to decide the questions of fact as well as of law.

From the best consideration we have been able to give to the evidence, the court are of opinion, that many of the losses proved are attributable to barratry of the master, which is covered by the policy, and for which the underwriters are responsible.

In the first place, we think it is proper to consider, whether the acts done by the master, independently of the state of mind under which they were done, would of themselves amount to barratry.

The evidence, we think, tends to prove, that captain Plaskett, before the commencement of this voyage, was a skilful, experienced, and energetic ship-master, in the whaling service ; that he had been in the habit of taking his grog daily, in moderation, but had not been, or been reputed to be, an intemperate man ; that very shortly after the vessel sailed, he began to drink excessively, so as to incapacitate him for the performance of his duties; that he lingered off the Cape de Verd Islands eight or ten days, and a longer or shorter time at Tristan d’Acunha and other places, on his course to the Pacific, without any cause or purpose having any connection with the prosecution of his voyage ; that the voyage to Tahiti was greatly delayed; that his going to Tahiti at all, instead of cruising for whales, was not occasioned by any exigency of the whaling voyage ; that his conduct at Tahiti, by which he lost most of his crew, was very reprehensible ; that his conduct during the cruise afterwards, in exposing his vessel to the attacks of savages, for no purpose which appears, other than that of going ashore to procure spiritous liquors, was wholly unjustifiable; that his return to Tahiti after four or five months was without necessity; and that his conduct there, in selling part of the tackle, apparel and supplies of the vessel, in suffering the vessel to lie without care and attention, her crew to desert, and the hull and rigging of the ship to go to decay, was without excuse.

If the question stood solely on the delay occurring on the outward voyage, there might be some doubt; but if that delay were occasioned by the motive of procuring ardent spirits, which he was using to excess ; and more especially, if, as some of the witnesses testify, the vessel in consequence of the delay lost a whaling season on the north-west coast; then it would appear, that the conduct of the master was unlawful ; that his motive was to gratify his own unrestrained appetite; that it was destructive of all the proper objects of his voyage, contrary to his duty to the owners, and manifestly detrimental to their interests.

But whether such delay was barratry or not, we have no doubt, that his conduct at Tahiti, after his second arrival there, supposing it not to be justified or excused by circumstances, comes clearly within the denomination of barratry. The sale and disposal of boats, sails, oars, and other portions of the vessel and appurtenances, were fraudulent, ex maleficio, done to obtain money for his own use, and amounted to embezzlement. In many cases, embezzlement is put on the same footing with larceny ; and in many cases, as well by the English law as our own, it is made larceny by statute. The difference is, that in embezzlement the property is intrusted by the owner, for a special purpose, with the party wrongfully converting it to his own use ; in the other, it is taken in the first instance without the consent of the owner. A stronger case of embezzlement than the present can hardly be stated. The property was intrusted to the master for a special purpose, not to sell, but to enable him to prosecute the voyage which he had undertaken. Selling these articles, even for a fair price, and even with an intent to account for the proceeds to his owners, would have been an embezzlement; because, instead of promoting any of the purposes, it defeated the only purpose, for which they had been intrusted to him. The master’s conduct, in this respect, comes within all the qualifications, which legally constitute acts of barratry.

Supposing the conduct of the master, from which these losses arose, to be prima facie barratry, is there any thing in the evidence, which can afford a justification or excuse ? It seems to be established by the proof, that this conduct, on the part of the master, was the result of the excessive drinking of ardent spirits. It was intimated in the argument, that this ery habit of -intemperance was caused by a latent insanity, which first manifested itself in that form. We suppose that there are cases, where a temperate person is affected with some latent disorder of mind, which leads him to excessive drinking; and where it becomes manifest, from subsequent indications, that the mental disease was the cause and not the consequence of intemperance. But this is matter of proof, of which this case appears to us to be deficient. Such a condition is not to be presumed without proof, because it is not within common experience; for where there is one case of this description, there are hundreds caused in the ordinary course of appetite indulged. From the proof, the case of captain Plaskett appears to be that of a man, who had habitually used ardent spirits, without excess apparent in his conduct, or manifest to others; but who, when taken from the influence of home and of friends, and from the society of equals, whose good opinion he regards, and placed in a situation where he is observed by no one, except those who are subordinate to him in rank and authority, and without sufficient moral principle to restrain him, indulges in the excessive use of stimulants, until the effect is to weaken his judgment, to cloud his reason, to awaken his passions, and thus to unfit him for the proper and faithful performance of duty.

Supposing, then, that these acts were the result of intoxieation, caused in the ordinary way by voluntary and excessive indulgence in the use of ardent spirits, the court are of opinion, that the existence of such intoxication did not excuse or qualify his acts. They must be regarded as barratry, or not, according to their nature and intrinsic character, without regard to such state of intoxication. Conduct, which is unlawful in itself, does not cease to be unlawful, because it is done in a state of intoxication; and, in general, in the criminal law, intoxication does not excuse.

It was urged in the argument, that the underwriters do not insure against intoxication. It is true, that they do not insure against intoxication, as such, and if it lead to no loss. But if they insure against barratrous acts, and barratrous acts are committed in a state, of intoxication, the law holds the intoxication to be no excuse, and therefore the acts remáin barratrous. To this extent underwriters do insure against intoxication. Were a bond given for the good behavior of a public or private officer, —a trustee, cashier, agent, factor, clerk, or other person intrusted with goods or money, — it would be no sufcient excuse, we suppose, to allege and prove that acts done by such officer, in violation of his duty, were done while he was in a state of intoxication.

This leads to the consideration of the other point presented in this case. It was suggested, that these acts might have been done by the master, in a state of actual insanity, caused, perhaps, by a long course of intemperance, or by a sudden interruption of a habit of excessive drinking; which circumstance would change the character of the acts done, and would prevent them from being considered as barratrous. This distinction is no doubt well founded. If , an intemperate man has fallen into a state of real and actual insanity; a state in which he is bereft of reason and judgment, and the use of his moral powers and intellectual faculties; although intoxication, frequent and repeated, was the remote cause of that insanity, yet he is no longer a responsible being; he is not amenable to the criminal law for acts which would be otherwise criminal; and his acts must be considered as pure accidents. But this is to be matter of proof, and not of mere assumption; and we have looked into the evidence with that view. It is always difficult, in such cases, to distinguish the acts of a drunken man from those of an insane one; it is not sufficient to take the phraseology of witnesses, especially those who are not professional, and do not use language technically; but it is necessary to look at the facts to which they testify. The consul, for instance, speaks of captain Plaskett, after his second arrival at Tahiti, as a man who was represented to him to be constantly in a state of intoxication, totally unfit, &c., appearing in a state bordering upon insanity. So, in another passage, he says, he (the master) “had again commenced his course of dissipation, and I seldom, if ever, found him really rational.”

The certificate of the surgeons, if more minute and explicit, would be more satisfactory. Their examination was made obviously with a view to ascertain captain Plaskett’s capacity and condition. They say, “ we do not consider him at all times sane; he is subject to epilepsy; excitement deranges his intellect, and no excitement can exert a more delirious influence than that caused by the use of intoxicating drinks, in which we are positive he constantly indulges.”

This language, in our judgment, does not comport with the supposition, that these professional men intended to state their opinion, that the master was an insane person. They were of opinion, that he was not fit to take command of his vessel, and the facts they state fully corroborate that conclusion". But we think they do not represent him in a state of actual insanity. This evidence, like that of the other witnesses, describes the master as a man whose conduct, at times, was like that of a madman, bordering on insanity ; but it is precisely like that of a man almost constantly in a state of intoxication. Epilepsy, which is described as one of the consequences, may be considered, whilst it lasts, as a state of insanity, during which the patient is deprived of reason and judgment; but he is at the same time deprived of sense and consciousness, and is wholly incapable of doing any thing. Delirium tremens is also one of the forms of insanity consequent on excessive drinking, and may be. though it is not often, of considerable duration ; but we see no evidence here of delirium tremens, or, if at any time it did exist, it does not seem to have been of any duration, or that any barratrous act was done during the paroxysm.

It does appear, that many of the acts relied on to establish the proof of barratry were done by the master whilst in a state of intoxication, and when no state of actual insanity had supervened, if any such did supervene; and it does not distinctly appear, that any such act, causing either of the losses complained of, did take place whilst the master was in a fit of delirium tremens, or laboring under any other form of insanity, and therefore the court are of opinion, that the defendants are responsible for the losses directly attributable to the peril insured against.

But the court are of opinion, that the plaintiffs are not entitled to recover demurrage, or damage arising from the delay of the vessel and the retardation and ultimate loss of the voyage. It was not a damage done to the vessel specifically, or to the outfits specifically, and therefore not covered by the contract of insurance. The contract was not, that the vessel should proceed on her voyage within any time, or that she should prosecute her voyage at all, but only that, during the prosecution of the voyage described, the vessel and the outfits should be safe against the perils insured against.

The case is to be referred to an assessor, to approve and assess the damages which the plaintiff is entitled to recover, pursuant to the agreement of the parties, according to the following directions: —

1. To ascertain and allow all losses of the ship’s tackle, apparel, furniture, and boats, and all articles of the ship’s outfits or supplies sold, or otherwise disposed of, by the master, including money, if any, furnished by the owners to the master, for the purchase of refreshments or supplies, or other necessary expenses of the voyage.

2. To ascertain and allow all damages to the hull, sails, rigging, tackle, and apparel of the vessel, whilst lying at Tahiti, when disabled from pursuing her voyage by the sale and disposition of her boats and outfits, by the damage in her rigging and sails, and by the desertion of her crew.

3. To ascertain and allow the actual expenses of sending the vessel home, that measure being taken for the benefit of all concerned, and to save and prevent a total loss.

4. To make no allowance for demurrage or damage arising from the delay of the vessel in her progress, and the retardation of the voyage.

5. To hear the parties after due notice, and make report to the court, as soon as conveniently may be.