Wilcocks v. Union Insurance

Tilghman C. J. . . This action is for the recovery of 20,000 ¿0pars underwritten by the defendants upon goods in the . , J . r ° brig Pennsylvania, on a voyage from Philadelphia to Smyrna, gjC.; warranted American property, proof whereof, if required, to be made in Pennsylvania only. The plaintiffs1 declaration contains two counts. In the first r , J they declare on a loss by capture; in the second on a loss by tbe barratry of the captain and mariners, • r The brig sailed on her voyage from Philadelphia to Smyrna, where she arrived safe, and proceeded from thence to Trieste, r , ’ where she took m a cargo consisting principally of quicksilver, — 575 — The adventure of the master, captain Macpherson, amounted to sixteen or seventeen hundred dollars. The cargo was wholly the property of the plaintiffs, native citizens of Pennsylvania. .The brig, manned by fourteen hands, including the captain,'sailed from Trieste on the 4th of May 180/, bound to Canton, and was proceeding on her voyage, when on the 13th May, not far from the strait of Messina, she-was stopt by two privateers, a polacre and a xebec under English colours, who, after examining her papers, put two men and a boy on board of her, and ordered her for Malta for further examination. The name of one of these men was Hardy, a British subject, who was prizemaster; the other man was a Maltese. The brig then proceeded, until she doubled Cape Passaro' in a course proper either for Malta or Canton. After doubling the cape, she altered her course, and steered down the Mediterranean for Canton. On the 16th of May another privateer under English colours, the Grande Bretagne, took possession of the Pennsylvania, and carried her into Malta. She was there libelled in the British court of vice-admiralty, and condemned on the 13th of July. The reason assigned by the judge.for condemnation was, that she had been “ rescued “ by the captain and crew, from the hands or possession of the “ first captors.” Thus far the facts are undisputed, and the defendants say, that they ought not- to make good the loss, because it was occasioned1 solely by the improper conduct of the captain and 'crew; and that this conduct, though improper, did not amount .to barratry. On the lather hand the plaintiffs allege, that in fact there was no rescue, although the court of admiralty have decreed so; and that if there was a rescue, it was barratry, against which the defendants have insured. The cause is thus divided into two points, the first of fact, the secondr of law. The jury will turn their attention first to the fact, and if they are of opinion that there was no rescue, their verdict on the first count, will be for the plaintiffs; but if they think there was a rescue, then for the defendants. On the second count, I will give them my opinion on the law respecting barratry. I shall not enter into a minute detail of the evidence. But it will' be proper to take notice of some leading facts, and to — 576 — make some remarks, with a view to assist the jury in their' inquiry. The plaintiffs’ principal witnesses are captain Macpher&on and Vanvoorcs the first mate. They agree very much in their testimony, the substance of which is to the following effect: that after the privateer had put Hardy, the Maltese and the boy, on board the Pennsylvania, the crew .refused to work for the privateer. Captain Macpherson being informed of this, advised Hardy to hail one of the privateers, who was near, and ask for more hands. Hardy hailed repeatedly, but the privateer refused to send any more and went off. In this situation fhe Pennsylvania pursued her course, which answered either for Malta or Canton. Off the coast of Sicily, captain Macpherson proposed to Hardy to go into Syracuse where he might get hands to navigate the brig to Malta, or have her papers examined by the British consul or agent. Hardy at first declined this, but at length, consented. They passed Syracuse while it was Hardy’s watch, the captain being asleep below, and Hardy deceived the persons on deck, by telling them Syracuse was ahead. When the captain awoke and came on deck, he perceived the trick, and shewed some resentment. Not long after this, as they approached the dividing point, between the course for Malta and Canton, the crew declared that they would not work the brig to Malta, and Hardy knowing that he had no hands of his own sufficient to work her, determined voluntarily to deliver up the papers and the possession of the vessel to captain Macpherson; but it was agreed between them, that there should be some appearance of threats or force, in order to deceive the Maltese■, who Hardy feared would do him some injury, if he saw that the brig was voluntarily surrendered. Accordingly some words passed, which had the appearance of threats; but in truth, a voluntary surrender was made. A different story is told by Stockton and Dr. Kennedy, the principal witnesses of the defendants. They say that while Hardy was hailing the privateer for more hands, the carpenter advised the crew to consent to navigate the brig, lest they should be removed on board the privateer, and thrown into prison in the first port they arrived at. That the crew approved of this advice, and consented to work the vessel to — 577 — Malta; "whereupon Hardy told the privateer there was no occasion to send more hands. Kennedy represents the delivery of the papers by Hardy to captain Macpherson, to have been in consequence of a threat by the latter to take them by force, if they were not delivered to him. Stockton declares that captain Macpherson, when they came near the dividing point, mustered .the crew, and asked them whether they were willing to work the brig for him, and being answered that they were, he ordered the man at the helm to keep her -west, in consequence of which the course was immediately altered, and they stood down the Mediterranean. I believe it will be a vain attempt, to try to reconcile all the testimony in this cause. There has been perjury on one side or other, and the jury must decide between them. They are the sole judges of the character of the witnesses. No direct evidence has been offered to impeach the character of any; but it has been remarked by counsel, that a strong imputation against the character of some of them, arises from a comparison between the evidence delivered at Malta, and in this court. The jury will make' that comparison; and if it appears that any witness has deviated now, from what he swore at any other time, it will undoubtedly lessen his credibility. They will also consider the situation in which the several witnesses stand. If any of them appear to have either character ■ or property at stake in this cause, they will not stand so fair as those who are perfectly indifferent. I cannot help remarking that it.requires strong testimony to convince us, that a prizemaster with a-very rich vessel under his care, should make a voluntary surrender of her when within a day’s sail of his port. Such conduct is not easily accounted for, unless by supposing that the privateersman, knowing there was no legal ground for condemning the vessel, had intended' from the beginning, to'condemn her Lq' fraud and perjury, and in pursuance of this plan Hardy gave her up, with a View of procuring a recapture by the first cruiser he should meet with, and then swearing to a rescue. If the proof of rescue, depended solely on the testimony of the privateers-man, there might be good ground for supposing there was such a plan as I have mentioned; but what are we to say to the testimony of Stockton and Dr. KennedyP The jury must weigh the whole evidence, and decide on it. — 578 — In speaking to this part of the cause, the plaintiff's’ comí» raised some points of law, concerning which, they requested my opinion to the jury. What is the duty of the crew of a neutral vessel, captured and sent in for adjudication? And what kind of force does in law constitute a rescue? As to the duty of the crew, they are not obliged to navigate the vessel; the captors therefore should take care to put sufficient force of their own on board. Should they send but a single hand, or so few, that it was manifestly impossible to work her, this would not be taking sufficient possession. In that case the neutrals are not obliged to submit their property and lives to the mercy of the winds and waves, and may lawfully consider her as abandoned to them, and act accordingly. But if a force insufficient to work the vessel is put on board by the captors, in consequence of the promise of the neutral crew, to navigate her to the destined port, they are bound by such promise, and must be considered, for the purpose agreed on, as the hands of the captors. If, in violation of their promise, they take the vessel into their own hands, I am of opinion that it is an unlawful rescue. As to the degree or kind of force, necessary to make a rescue, it is obvious that force is of two kinds, either actual or constructive. If captain Macpherson assumed the command of the crew, and without the consent of Hardy, ordered the helmsman to alter his course, and such order was obeyed, this was actual force. But there may be constructive force by threats; the threats however must be of such a nature, as might reasonably be supposed sufficient to intimidate a man of moderate firmness. It would require no very great threatening, to give cause of reasonable alarm to two or three resolute men, surrounded by fourteen, in the midst of the ocean. Having said enough as to the facts in this case, I will now proceed to the second point, the law of barratry. But I must first say a few words concerning a point which I suggested to the consideration of the counsel, during the argument, in order to afford them an opportunity of satisfying a doubt of my own, and because consequences are involved in it, which may tend to shorten trials of this kind. The underwriters have expressly insured against barratry. The insured has warranted that the property is neutra^ and by construction — 579 — of law, that it-shall be so conducted, as to remain neutral, during the voyage. Here is a conflict between the covenant of the insurers, and the warranty of the assured. What is the effect of it? The decree of the foreign court of admiralty is conclusive, except as to those matters, concerning which the insured has made a warranty, and has reserved to himself the right of proving his warranty in this court. It follows, that if he.has not warranted against barratry, and the foreign -sentence"adjudges that barratry has been committed, no evidence except by consent could have been given in this cause, to contradict the decree of the court of Malta. I will now consider the effect of the collision between the covenant to insure against barratry, and'the warranty of American property. This warranty, in strict construction, would only import, that the property belonged to a neutral person. But it has been extended much further.'" It is understood that the yessel should be furnished .with all those documents, which are the proof of neutrality, and that no act should be done on the part of the insured to forfeit the neutral character. To carry this idea to its full extent, it would include the acts of the captain, who is the agent of the insured. But considering the express insurance against barratry, I think it, taking the whole instrument together, most reasonable so to construe it, as to leave the insurance against barratry in full force; especially as the same construction has been put on another warranty in the policy, viz. that the insurers shall be free from, loss in consequence of seizure on account of illicit trade. It is understood, that if a loss arises in consequence of illicit trade of the" captain, amounting to barratry, the insurers are liable, On this principle, the warranty will imply, that as to all acts to be done by the insured themselves, or by their agents, except only such as amount to barratry, the neutral character, shall be preserved. - I will now consider what is barratry. As it is an act committed by the master, or mariners, over whom the insurers have no control, it has often been wondered, and it is indeed cause of wonder, that it should still keep its place in policies of. insurance. Many questions have arisen on it, and many cases have been cited on the argument of this cause. I have examined all the English cases, (as well as the short intervals — 580 — between the sittings of the court would permit) from Knight v. Cambridge, in the 9th of Geo. II, to Earl &c. v. Rowcroft in the 47th George III, and the cases in our own country from Hood's executors v. Nesbitt, in our supreme court in the year 1792, to Doederer v. The Delaware Insurance Company, in the Circuit Court of the United States, April 1807.1 will give what appears to be the result of these cases, without undertaking to give a definition of barratry; for such is the imperfection of language, that many disputes arise from the general expressions employed in definitions. The result then of the cases appears to me to establish two principles. 1st, That any trick, cheat, or fraud, practised by the captain, to the prejudice of his owners, is barratry. • 2d, That any crime committed by the master, to the prejudice of his owners, is barratry. In those cases, where the point turns on the frauds or cheating of the captain, it is always important to ascertain whether his conduct 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. The hasty perusal of these.cases, has sometimes induced an opinion, that there could be no barratry where the captain did not act from motives of self-interest. But this test will not be sufficient to decide those cases which arise on the second branch of barratry, from crime. What is crime? As applied to the present purpose I will call it “ a wilful breach of law, to the prejudice of the “ owners.” Now in this point of view, it is of no consequence, whether the captain has an interest of his own or not. It must be considered as an implied trust between him and his owners, that he will not without their orders, break a law, which subjects their property to forfeiture. It is understood to have been decided, that leaving a port without paying duties, and thereby rendering the ship liable to confiscation, is barratry. It has been decided, that it was barratry for the captain, to make a cruise in which he took a prize, without a lawful letter of marque, although he libelled the prize in the name of his owners, as well as his own; so if he carries on a trade forbidden by law, although his intention was to make a profit for his owners. I understood one of the defendants’ counsel, (Mr. Dallas) — 581 — to admit that a violation of the law of this state would be barratry. In this respect I do not see any material difference between a law of our own state, and a law of nations. We consider the law of nations as part of our law. It was so determined in the case of De Longchamps, 1 Dall. 111., who was indicted, convicted, and punished, for a breach of the law of nations, committed in the house of the French ambassador, in this city. We have the opinion of Judge Butter, that the act of a neutral master, which forfeits his neutrality, is barratry. It has not, I think, been contended by the defendants’ counsel, that a rescue is not unlawful. On that point I agree with the opinion of Judge Washington, in Doederer v. The Delaware Insurance Company, where he thus expresses himself; “ that the attempt to rescue the vessel, was unlawful, and “ afforded a ground for condemnation, is proved by the opin- “ ion of the best informed jurists, and has received the sanc- “ tion of the common law courts, in a variety of instances;” he adds “ that this doctrine was admitted by the counsel of “ the assured.” Upon the whole, my opinion is (formed indeed during the course of this trial, and therefore not so much to be relied on, as if after an argument in bank) that if a rescue was committed, it was an act of barratry. If therefore the jury should find for the defendants on the first count, my advice to them is1 to find for the plaintiffs on the second count. On the contrary, if they find for the plaintiffs on the first count,; then, there having been no rescue, there was no barratry, and in that case the verdict on the second count, must be for the defendants. The jury found for the plaintiffs on the first count, and the defendants acquiesced in the verdict. '