American Insurance v. Bryan

After advisement, the following opinions were delivered: By the Chancellor. - The policy in this case contains the usual clause inserted in most of the American and English' policies insuring against thieves and against the barratry of the master and mariners. The evidence left it a matter of doubt, whether the goods were embezzled by some of the mariners employed about the ship, or steamboats, or by other thieves. The declaration contains several counts, some charging the loss to have been occasioned by barratry, and others charging it to have been by thieves. The case, therefore, presents two questions for our consideration: First—whether the word thieves, in this policy, covers a loss occasioned by a simple larceny, unaccompanied' by open force or violence by persons other than the masters and-crews of the ship or steamboats in which the goods were transported ? and, Secondly—whether the insurance against barratry, covers a fraudulent or felonious — 573 — embezzlement or stealing of the goods by the master or crew ? I had occasion to express my opinion upon the first question several years since in the case of The Atlantic Insurance Company v. Storrow & Boyd, 5 Paige's Rep. 292. In that case, I arrived at the conclusion that the elementary writers, who held that the term thieves in the policy only meant assailing thieves, had followed the language of the continental writers on this subject, without adverting to the difference in the language of their policies from that which was contained in those of England and America. By referring to the marine ordinance of Louis the XIVth, promulgated in 1681, Book 3, tit. 6, art. 26, which enumerates the risks assumed by the underwriter, where there are no special stipulations on the subject in the policy, it will be seen that neither the word thieves nor barratry are used; and, so far as I have been able to discover, the only word used in any of the continental policies to cover any kind of theft, except what is included in the term barratry, is the French word pillage, or its equivalent. This term pillage imports latrocination, or robbery by force or violence; and not a simple larceny merely. Merlin defines it to be the plundering, ravaging, or carrying off of goods, commodities, or merchandize, by open force or violence. Pillage c' est dé gat ^ le ravage et l' enlevement d' effets, de denrées ou de marchandizes, a force ouverte. 23 Merlin's Repert. de Juris, art. Pillage. The term thieves, in our policies, is not intended as a mere translation of the word pillage, used in the ordinance of Louis the XIVth, and in the present commercial codes of France and other continental powers. See Code de Com. Francaise, book 2, tit. 10, art. 350; Lafond, D'Assur. Marit. 101, sur la Police D'Anvers; and Code de Com. D'Espagne, by Foucher, p. 292, art. 861. By a reference to the continental policies as collected by Lafond, and to those of England and the United States, it will be seen that the language of the continental policies is in a great — 574 — many other respects entirely dissimilar from the language of English and American policies. In the absence of any jucqcja] decision to the contrary, therefore, the most that can be inferred from the elementary writers on the subject is that the term pillage, in the continental policies, does not include simple larceny; and that the term thieves, in our policies, does not include theft perpetrated by the master or mariners, so that losses by larcenies of this last description must fall upon the assured, where there is no insurance against barratry by the master and the crew. Marshall, who wrote in 1802, appears to consider it as settled that the word thieves in a policy, only means assailing thieves, or those who assail or rob the ship by violence from without; but to show that this was not considered, even in England, as the settled construction of the word thieves in a policy, at that time, it is only necessary to refer to the work of Mr. Justice Park, the fifth edition of which was published under his own inspection in the same year that Marshall wrote. After referring to what is said by Malyne and by Roccus on this subject, especially by the latter, he adds, “ It was thought proper thus to state the opinion of this learned writer upon the subject, the law of England in this respect being silent, though his reasoning upon this subject is by no means conclusive as to English insurances, on account of the express terms of the contract.” Park on Ins. 25. And Mr. Hughes, who wrote twenty-six years afterwards, does not consider the question as settled, that the word thieves may not include losses by theft committed by persons on ship board as passengers, where the loss occurs without the fault of the assured. Hughes on Ins. 232. Upon the second question there appears to be very little room to doubt that an insurance against barratry by the masters and mariners includes larcenies and embezzlements, of the goods insured, either by the master or the crew, other than mere petty thefts. By the ancient law of France, according to Valin, the insurer was answerable — 575 — for the barratry of the master and crew without any express provision in the policy to that effect; but not until the owner of the goods insured had exhausted his remedy against the master, for the loss, sustained. See Valin’s Comm, upon the Or din. of Louis the XIVth, by Becave, vol. 2, p. 303. The ordinance, however, declared the insurer not liable for barratry of the master and mariners, where he was not by the terms of the policy charged with a loss by barratry. The same provision is contained in the commercial code of Napoleon, and in the commercial code of Spain, promulgated by Ferdinand Vllth, in 1829. But where, by the terms of the policy, the insurers take upon themselves the risk of barratry by the master and mariners, known to the continental lawyers by the terms barratry of the patron, they are answerable absolutely for any damage resulting from the acts of the master or crew, either by reason of ignorance, rashness, malice, change of route, larceny or otherwise; and such is also the law of Holland, according to Yalin. See 2 Becave’s Valin, 303. The meaning of the term barratry in British and American policies is not quite as extensive; but it unquestionably includes every act of the master or mariners of a criminal or fraudulent nature, tending to their own benefit and to the prejudice of the owners or charterers of the vessel. In the language of Mr. Justice Aston, in Vallejo v. Wheeler, Cowp. Rep. 156, it includes every species of fraud, knavery or criminal conduct in the master, by which the owners or freighters are injured; and it is equally extensive in its meaning when applied to the conduct of the mariners, except that it may not include petty thefts. 1 Phil, on Ins. 239. I have no doubt, therefore, that the stealing or embezzlement of the property in controversy, in this case, if perpetrated by the master or mariners of the ship, or of any of the steamboats upon which the goods were transported, was an act of barratry, covered by the policy. For these reasons, I think the charge of the judge who tried the cause was not erroneous;, and that the judgment — 576 — of the supreme court sustaining the decision of the superior court of the city of New-York should be affirmed. By Senator Verplancic. The liability of the underwriters in this case must have been contested on wider grounds in the argument before us, than it had been in the courts below, since the opinion of Judge Cowen, written with his usual learning and research, does not cover all the points discussed before us. The insurance was upon a number of packages of dry goods, sent from New-York to New-Orleans by ship and thence to Tuscumbia by steamboats. The policy was in the usual form, against “ perils of the seas, men of war, fires, enemies, pirates, rovers, thieves, jettisons, &c., barratry of the master and mariners, and all other perils,” &c. Some of the boxes were opened, and goods to a large amount taken out, before the arrival of the cargo at Tuscumbia. There was some evidence tending to show that the boxes were in good order, when put on board the steamboats at New-Orleans; yet it was not proved whether the depredation was committed on ship board or in the steamboats, or elsewhere, whilst covered by the policy; whether it was committed by the. mariners, by the hands of the steamboats, by passengers or other persons, except that there was no attempt to prove that it was effected by open violence or robbery. Chief Justice Jones charged the jury that a loss by theft, whether by assailing thieves, or by the embezzlement of the crew, or by whatever persons, was a loss within the policy, and that, if the jury should be satisfied from the evidence that the depredation had taken place, and had been perpetrated upon the goods whilst under the protection of the policy on board the ship or the steamboats, the plaintiffs having counted upon a loss by theft, and upon a loss by barratry, would be entitled to their verdict. The counsel for the underwriters excepted to this opinion and charge, under which, a verdict was found for the plaintiffs below. — 577 — In support of this general exception, it is now contended: 1st. That insurance against loss by the barratry of the master or mariners, does not cover the thefts and pilferings by the latter, of goods on freight; or, 2d. That if it does so, it is only when such depredations could not have been prevented by due care and vigilance on the part of the master. 3d. That the insurance against thieves does not cover loss by theft unaccompanied by force, and that the word, in its technical sense in a policy, means only assailing thieves; but, 4th. That, allowing the more ordinary use of the word to apply here, the policy does not reach theft, occasioned or permitted by the masters’ want of vigilance. If any one of these positions be correct, it is inferred that the jury were mis-directed by being instructed, that whether the loss took place on ship-board or in the steamboats, and whether the theft was committed by the crew or other persons, it was immaterial, as the loss would be covered, as caused either by barratry or by theft, whilst their attention was never directed at all to the inquiry of culpable negligence, or of due diligence in the care of the property. The first two grounds of defence seem not to have been much insisted upon in the supreme court. But the charge unquestionably misled the jury in a point essential to the verdict, if, under the clause against barratry by the crew, the insurers are not answerable for their thefts, or if, in order to establish such a liability, it is necessary first to prove that there had been no want of due care by the master. The objection is by no means frivolous, or without foundation in reason and authority. Questions upon barratry of the crew, seldom come before the courts, except in cases of revolt, violence, compulsory deviation, &c. ' But the meaning of the word barratry, in its English use, is well settled by judicial authority and common usage; although it was not until Mansfield’s series of judicial decisions on the law of insurance, that the present restricted and definite use of the word was fixed, and distinguished from the broader meaning given to it on the continent of Europe, — 578 — where it includes imprudence and unskilfulness as well as guilt. In 1774, Lord Mansfield, in Vallejo v. Wheeler, Cowper R. 154, remarked upon the wide difference between the English and the foreign sense of the word, and observed that u the notion of barratry had not yet been judicially considered, or defined with accuracy in England.” He then defined it, in conformity with its derivation, and its use among the London underwriters, as comprising “ whatever is a cheat, a fraud, a cozening, a trick by the master.” Judge Aston defined it as “ comprehending every species of fraud,knavery, or criminal conduct, by which the owner or freighter is injured.” “ Barratry,” said Lord Ellenborough, a in the master, includes every species of fraud in the relation of the master to his owner, by which the subject matter insured might be endangered.” Earle v. Rowcroft, 8 East. 126. In the Swedish policies, Judge Aston informs us, the phrase is rendered, “ knavery of the master or mariners,” and this translation is a good definition. Chancellor Kent sums up the definitions of our courts by saying: Ci It means fraudulent conduct of the master in his character of master, or of- the mariners. It includes even breach of trust, committed with dishonest views.” I cite these definitions, very familiar in reference to the master, both to show the inapplicability of the dicta and reasoning of the continental writers, who argue from a broader sense of the word, and also because there are very few English or American decisions touching the barratry of mariners, and those happen to be cases of open violence. We must therefore draw our conclusion from principles and general definitions, and the analogy of other decisions.- The' definitions of the crime have been given judicially, in relation to masters, but they extend, both in words and the reason of the matter to the same offence by the crew. Accordingly, the “ barratry of mariners,” of our policies, must mean and include all fraud, knavery, breach of trust, pr -"^-¡jfi’nal conduct of mariners, whereby the owner — 579 — or freighter suffers loss, or the subject insured is injured or destroyed. Embezzlement of property on board ship falls within such a definition. It has been thus held as to such embezzlement by the master, and so we find it considered by Lord Ellenborough, as to other common carriers and their servants. He said, as to goods lost by fraud in inland transportation, “ barratry is large enough to include every species of fraud committed by carriers or their servants, taking them to stand in the place of master and mariners.” Boehm v. Combe, 2 Maule & Sel. 172. Thus, theft and pilfering are evidently within the meaning and intent of the clause against barratry by the mariners, in the legal, as I presume it is also, in the ordinary commercial sense. If it were not so, it is very strange that some other clause to that effect has not come into occasional use, either in Great Britain or the United States, in some or other branch of trade peculiarly exposed to such hazards. It is true that the ship owner is answerable for such losses to the shipper of the goods, and that the crew, too, may be liable to contribute from their wages for the reparation of losses shewn to arise from their fraud or connivance. This is a good reason why, in the absence of any express stipulation, underwriters should not be presumed to be liable for such losses under their general contract of indemnity against all the fortuitous “ perils that may come to the damage of goods,” &c. And such was the understanding and reasoning of the elder English and the continental jurists. But the express object of an insurance against barratry, is to exempt the assured from the risk of the ship owner’s solvency, and especially from the difficulties of proof of the loss having arisen in a given manner, and to comprehend all the probable causes of loss in the several terms of the policy, leaving it to the underwriter to follow out and assert the rights which he acquires by substitution to his assured, upon payment of the loss. But it is laid down in some of the books, (as in 1 Phillips on Ins. 238, 1st ed.,) that “the control and superintendence which — 580 — the assured has of the conduct of sailors, and is supposed to exercise through the captain, and the little trust which is or{iinaXily reposed in them, render the assured answerable ^or their conduct in a much greater degree than he is for that of the captain; and accordingly the insurers are, in proportion, less answerable for any breach of trust on their part, since it is the fault of the assured to repose any very great trust in them. With this distinction, an act of barratry in the mariners, does not differ from the same act in the captain; and therefore, where an act barratrous in its nature is done by the mariners, the insurers are answerable for a loss occasioned by it, if with due precaution and diligence it could not have been prevented. In regard to petty thefts and embezzlements, the insurers are in general held not to be answerable for them, since with due vigilance they might be prevented.” This view of the law is sustained by the language of other elementary writers, and the analogy of various decisions, as Pipon v. Cope, 1 Camp. R. 434, and others cited on the points of counsel. I think, that in fact, this presents the ordinary practical result Of the duties and liabilities of owners, masters and mariners, but overlooks their relative and successive rights and responsibilities in the manner they would affect a case like the present. I cannot, however, but remark, that the reason assigned for the restricted liability of underwriters, in the presumed control exercised over the crew through the master, is, so far as respects the owner of goods alone, purely theoretical and contrary to the ordinary fact; since, in reality, the master is no more under the control and within the knowledge of the shipping owner of goods, than of the insurers—often much less so. The distinction between the ship owner and the shipper of goods, in relation to the degree in which the acts of the master and mariners should justly affect their policies, was strongly put by the counsel. I find that it has been noticed by Sir William Scott and Chief Justice Gibbs, while there is strong authority against it. It is founded in reason, and seems to de — 581 — mand more attention than it has yet received judicially, so as to mark definitely the degree in which the shipper’s policy may be affected by the acts of those over whom he can have no control. But we are not now, in my opinion, called upon to define those boundaries, since the present case may be decided upon admitted principles. The law of insurance, above every part of our jurisprudence, is formed by deductions of reason and justice from the nature, obj ects and terms of the contract. The interpretation of the contract, like every thing else relating to the meaning of words, must depend upon usage; but as soon as that meaning is settled, the law of insurance rarely fails to manifest the consistency and harmony of truth. I think that it will be found to do so here. Barratry or criminal knavery of the mariners, including under that large term, embezzlement of goods freighted on board is a peril expressly insured against. When the loss occurs the underwriter is prima facie responsible. A loss of this kind stands upon the same footing with any other loss by a risk insured against, as for instance, the perils of the sea by rocks or tempests. The insurance in either case is an express contract to make good any unforeseen loss thence arising. But like losses by shipwreck, a loss by barratry of mariners must also be discharged if it arose immediately from the fault of the master, for his neglect short of barratry was not one of the risks undertaken specially, nor is it included as a peril of the sea. 3 Kent’s Comm. 300. The insurers are discharged from loss by shipwreck caused by the ignorance or inattention of the captain; unless they specially insured against it. For the same reason the captain’s culpable negligence as to the goods under his care may discharge the insurers from loss by barratry of the crew. But here, too, as in, respect to loss by shipwreck, the defence of the master’s misconduct is an excuse, a ground for exemption from liability, by shewing that the loss» though appearing prima facie to have been caused by a peril insured against, was in fact — 582 — the immediate result of some other danger, not assumed in the policy, and like all similar defences against prima jfacie proof, it must be proved by those who are to be bene^ted by it. It is a general principle of the common law, (with one or two specific exceptions on the ground of public policy,) that every man is to be presumed to do his duty until the contrary is established, and therefore the burthen is on the plaintiff to negative this presumption by appropriate proof. Williams v. East India Co. 3 East. 192, where the reason and the learning of the rule are summed up with great succinctness and perspicuity. Thus, the burthen of proof is here on the underwriter. The assured is never required to prove affirmatively the fact of due diligence and care in order to make out his case, before any objection is raised. Thus it has been held in the United States courts as to negligent navigation, deviation, unreasonable delay, that the proof is tobe made out by those who are to be discharged by it from liability; the presumption is with the assured after proof of loss. Tidmarsh v. Washington Insurance, 4 Mason’s R. 441. Columbian Ins. v. Catlett, 12 Wheaton’s R. 383. It had been thus held in the English courts as to barratry of the master. In Ross v. Hunter, 4 T. R. 37, the court said that the question being whether the evidence for the plaintiff was sufficient to be left to the jury when the barratry of the captain was proved, u then the rule of evidence applies, that the affirmative is always to be proved by those whose interest it is to prove it.” Judge Butter said, u the plaintiff in such cases is to prove subscription to the policy, his interest, shipment in the vessel described, loss in consequence of such act as amounts to barratry;” but that “ it was not incumbent on the plaintiff to prove a negative.” So more recently, op a defence by reason of an alleged violation of local law, it was held, that the burthen of proof was on the underwriter, “ the presumption being that the party complied with the law.” 4 Camp. R. 234. — 583 — In the present analogous case, the plaintiffs below were not bound to prove the care and vigilance of the master or others. Ordinary and sufficient vigilance is to be presumed till the contrary is shewn, in the same manner as competent navigation, due course of the voyage without deviation, or obedience to port and revenue laws. Indeed, this should be especially the rule in cases like this, since it is not the plain, naked fact of an omission by the master to restrain his crew that would discharge the underwriters. Such negligence might be collusive, or it might be an exceedingly gross breach of duty. In the first case, that would be confessedly barratry of the master, and so equally within the policy. In the latter, the result might be the same upon proof of gross and inexcusable neglect, according to the decision of the United States supreme court in the Patapsco Ins. Co. v. Coulter, 11 Peters’ R. 225. Again: in late years our courts have held, upon good reasons of policy and equity, that underwriters were not discharged from risks expressly assumed, because the losses were incurred remotely or consequently by default of the master or mariners. u It is a well established principle,” said Judge Story, “ that in all cases of loss we are to attribute it to the proximate, and not to any remote cause.” 11 Peters’ R. 225. It would then seem that the underwriters would not be discharged from their contract of indemnity against the thefts of mariners, unless by evidence of such an omission of duty on the master’s part as did not amount to barratrous negligence, and was not a remote and accidental, but an immediate and proximate cause of loss. Such a degree of negligence may possibly occur, but it seems to require such precision of proof and is subject to such limitations and exceptions, that it cannot reasonably be presumed. Had there been any evidence of this nature, the judge should have instructed the jury on that point, but the assured were not called to make out an affirmative case of due vigilance. — 584 — But the evidence left it in doubt, whether the goods had been secretly plundered by some of the hands of the ship or steamboats, or by other thieves in the course of transhipment and transportation, and as it was charged that “ a loss by theft, whether by assailing thieves or by the embezzlement of the crew, or by whatever persons, was a loss within the policy,” the question, so léarnedly investigated by Judge Cowen, is raised, whether insurance against “ thieves, extends to thefts generally, or is confined to a peculiar and technical sense of losses by robbery or u assailing thieves from without,” in the language of the books. If the word thieves were found in any informal written contract between two citizens about some other matter than insurance, or if it were now for the first time inserted in a policy by a New-York company, there would be little doubt, whether or no it were employed in any other than its ordinary signification. The only question likely then to arise would be, whether it should not be restricted to its popular sense of secret stealing, to the exclusion of robbery by assailing thieves. But there is old and high authority for a different sense of the phrase when used in a formal policy of marine insurance. The older English writers on commercial law, with some of the modern ones, and all the continental commentators, consider the underwriters not to be bound for loss by secret thieving. Chancellor Kent thus condenses these authorities: “ The enumerated perils of the seas, pirates, rovers, thieves, include the wrongful and violent acts of individuals, whether in the open character of felons or in the character of a mob, or as a mutinous crew, or as plunderers of wrecked goods on shore. The theft that is insured against, by name, means that which is accompanied by violence, (latrocinium,) and not simply theft.” 3 Rentes Comm. 303. In the last edition (1840) the distinguished commentator, thus remarks upon the decision of the very case now under review, then just made in the superior court, and upon a concurring decision of the present chancellor, Atlantic In- — 585 — surance v. Storrow, 5 Paige’s R. 293, holding that the clause applied to persons who stole from the ship whilst she lay at a wharf. “ This decision overrules all the old authorities and text hooks, for they all apply the term fur-turn or simple theft, as well as latrocinium or robbery, to assailants from without the ship, and exclude from the policy simple theft, as not being properly a casualty. All the English text writers follow the same rule as Malyne, Molloy, Beawes, Wesket, Miller and Marshall.” He also cites to the same effect the great continental authorities of Roccus, note 42; Emerigon, 1 eh. 12, and Boulay Paty, the latest and best French author on insurance. To this imposing array of authority, I add that of Phillips in his treatise on insurance 1 vol. 258, first edition, though what he there says is a good deal qualified and modified in his recent edition of 1841. In most other commercial contracts, mere book authority, (I do not speak of express decisions,) when opposed to the known and universal usage of language amongst those who are parties to the agreement, would, in my mind, be entitled to little weight. But it is otherwise as to a policy of marine assurance. That is an instrument which, having been formed gradually by commercial usage during two centuries and a half, retains much of its original form, with additions made from time to time as circumstances suggested them. Even in the most recent revisions of the policy by our Hew-York offices, the antiquated forms have been mainly retained, though new words have been added. Hence it is that Mansfield, Buffer, Lawrence, Kenyon in England, and Marshall, Washington and other great judges with us, have spoken of the marine policy as u an obscure and strange instrument,” <c loosely drawn,” or, according to Lord Mansfield, “ conceived in an inaccurate form of words, but by length of time and variety of decisions, reduced to certainty.” According to Lord Kenyon, if the underwriters of Lombard-street had not given a construction to marine policies, they would have been without legal effect; — 586 — “ but the custom of merchants and underwriters had made them intelligible.” 4 T. R. 238. These considerations make it important to inquire how far the authorities of the books are correct or applicable in modern use, and by limiting the meaning of the phrase regulate the contract itself. There are no reported decisions on the point, except the two cases in our own courts above cited, one of which is now under review. But both express decision and general understanding have made the underwriters liable under this clause for robbery with violence committed by persons from without ship. This was decided as unquestionable by Lord Mansfield in Harford v. Maynard in 1783, reported by Park. It is received in all the books, and is, I believe, universally understood to be the law and the meaning of the contract. But is there sufficient reason for considering such robbery by assailing thieves, as the only peril assumed under the express agreement of the underwriters, to 16 bear and take upon themselves the adventures and perils of thieves,” in addition to those of “ enemies, pirates, rovers,” &c. 1 It is conceded as a first principle, acknowledged by the best authorities, that losses not in themselves fortuitous, but capable of being guarded against and prevented by due care -and competent skill, are.not within the general contract of assurance against “ peritamdlosses;” and that, therefore, losses by larceny or secret-' theft, without violence, are not within the broad intent of the policy. But that general rule may be limited by express contract,, and any special risk whatever assumed. This, then, is a mere question of the interpretation of the written contract. The clause appears not to be in use in the ordinary policies, ancient or modern, of France, Italy, Spain, Holland, or the north of Europe. See the policies used in the principal commercial cities of the world, as collected by Vascher, Guide to Marine Insurance. But it appears in the English policies, as it is now used here, from a very old date. It may probably be traced back to the reign of James I. Posthlewait’s still valuable, though — 587 — antiquated, Dictionary of Commerce, (1751,) has preserved a report of two insurance cases decided in the king’s bench in 1681, where this clause appears in the policies. It is found in the forms given by Molloy and Malyne. The editions (the third of both) which I have consulted are of 1686, but the latter writer appears to have first published in 1622. This throws us back to examine the older use and meaning of the words thieves and theft. They have had a peculiar use in our language. The primary meaning, which is now the ordinary one, is that of secret stealing or simple larceny. But they had formerly a more general signification, and comprehended robbery or violent taking, although that was never the exclusive sense. The signification was, either an unlawful and guilty taking of property generally, or else and more especially a secret taking. Our received translation of the Bible, that still fresh and living “ well of English undefiled,” was but little prior in date to the ascertained use of the clause in question, and it abounds in examples of these uses. The original words in the New Testament, xKerfmis and X?juVijs have respectively the precise sense of a <£ secret thief,” and “ a robber by force.” They are translated indiscriminately by thief, though the former word is never translated ££ robber.” When the two words occur together, their distinct meanings are marked as ££ he is a thief and a robber.” John, x, 1. But we read, ££ a certain man fell among thieves,” literally, “ among robbers.” Again, ££ ye have made my house a den of thieves,” in modern language,££ a robber’s den,” (spelunca latronum in the Vulgate.) At a later date, we find Blackstone, a legitimate English classic, as well as the most pleasing and perspicuous of > elementary teachers, explaining larceny by theft, and he speaks of it as either simple larceny or plain theft, unaccompanied by any atrocious circumstances, or else compound larceny, of which robbery is a species. It is needless to multiply examples, to show that at whatever period we may fix the introduction of this clause in our policies, — 588 — the words comprehended the largest risk of felonious taking with or without force, secretly or by open assault. Modern use has gradually restricted the sense to thieving unaccompanied by violence, but at no period do we find any usage of an exclusive signification of robbery only, which would not embrace the other meaning. Writers on the police of London, have described the systematic thieving from ships on the Thames, many years ago, and it was certainly to be expected that such losses should be occasionally anticipated and insured against in England. So, too^ in the vast internal and coasting trade of our own country, where transhipments are so often necessary, and the pre-' cise facts of depredations so difficult to be traced, it is clear that such an insurance would often be wished, and the insertion of the word thieves was the most obvious mode to cover all such hazards. Another very strong presumption in favor of the more obvious and customary sense, as the one actually intended in our modern policies, is that many underwriters, who do not wish to assume that risk, have expressly excluded it by adding a restrictive word, so as to insure only against “ assailing thieves,” as it is found in many of the printed forms now used in Boston, Baltimore and elsewhere, and by one company in New-York. In opposition to these strong reasons, is placed the authority of all the eminent continental writers, and of several of our most deservedly esteemed legal writers in England and America. The latter rest mainly on the opinions expressed by the former, there being no adjudicated case or judicial authority to be found in the English or American books. I have examined the passages in Roccus, cited to this effect, and agree with Judge Cowen, that his denial of the responsibility of underwriters for secret thefts, refers only to that undertaken under the general contract or form of policy of his own age and country; but that he does not regard the liability as not following special insurances against such a loss, or even as not incurred upon an insurance that the goods “ should be conveyed safely ” to their — 589 — destination. I presume that all the French jurists, Emerigon, Pothier, Boulay Paty, refer, as Pothier certainly does, to the French customary form of policy, which insures only against u pillage” or plundering by violence, but not against livoleurs,” a word as comprehensive as our uthieves.” The French Code de Commerce, in its title Des Assurances, also uses this word “ pillage ” as the exclusive risk of this kind undertaken, and the observations of Boulay Paty and his countrymen, on this point, since 1807, must refer wholly to the provisions of the code. Accordingly, I cannot think that the dicta of these great jurists, with reference to the codes or usage of their own country or times, when transferred to the pages of our English text writers, should overrule the primary and presumptive understanding of the language of the printed contract. I have said that most of our text writers have adopted this opinion; but Park, one of the most valuable of them, who has since acquired a judicial authority, notices the silence of the English decisions, and points out the distinction between the general reasoning of Roccus and “ the express terms of the English policies.” Hughes and Miller both indicate the same opinion. Finally, an argument on this clause similar to that used on the barratry clause, has been strongly pressed: that the loss by theft is not one for which the insurers are liable, if it be occasioned by the negligence or want of due care of the captain. The authorities here, are of the same character with those already cited and examined in relation to the barratry of the crew; and the conclusions to which they come are to be taken with the same qualifications and exceptions. Loss by thieves is a peril expressly insured against. The insurance is made by the owner of the goods, expressly because he does not wish to take the hazard of making out his proof of loss in the way necessary to charge the ship owner. He therefore makes his policy broad enough to cover all such depredations, and to make general proof of loss sufficient for his indemnity, without prov — 590 — ing precisely how and where it occurred. The master’s vigilance is an implied condition of the contract, so far as this, that a loss immediately caused by it, is not within the intent of the policy. But due vigilance on his part is not to be proved by the claimant, in order to make out his right to indemnity. The burden of proof of negligence, not barratrous in itself, and yet actually causing the loss, is on the underwriter, as it is in respect to barratry of mariners. It falls within Lord Ellenborough’s statement of the doctrine and practice of the courts. “ The rule of law is, that when any act is required to be done on one part, so that the party neglecting it would be guilty of criminal neglect of duty in not having done it, the law presumes the affirmative, and throws the burden of proving the contrary, (that is, of proving the negative,) on the other side.” Williams v. East India Co., 3 East. 192. No such proof of the negative having been made out, or offered here, the judge was not called upon to direct the jury as to the legal effect of want of due vigilance by the master. I think that the charge was correct throughout, and that the decisions of the courts below should be affirmed. On the question being put, Shall this judgment be reversed 1 all the members of the court present at the argument of the cause, answered in the negative. Whereupon the judgment of the supreme court was Affirmed.