Tate v. Protection Insurance Co.

Wave, J. The plaintiffs, in this case, were insured against the barratry of the mariners, but not against that of the master. The vessel was lost, by reason of the barratry of the second mate, committed after he had succeeded to the command, in consequence of the deaths of the first mate and ihe master, while the vessel was on her voyage, and in foreign parts; and the question is, whether that was one of the perils insured against. The practice formerly was, to insure against the barratry both of the master and mariners. Eminent judges have considered it extraordinary that the barratry of the former should have ever crept into insurances, and still more so, that it should have long continued in them. Earle v. Rowcroft, 8 East, 126. Nutt v. Bourdieu, 1 Term R. 323. 330. Grim v. Phoeni.v Insur. Co. 13 Johns. R. 451. 458. Such a practice encourages collusion between the owner and master, and thereby opens a door for frauds upon the underwriters. It is said by Marshall, in his treatise on Insurance, that at Rotterdam, the owners of ships were prohibited from insuring against the barratry of the master, whom they themselves appoint, but were permitted to insure against that of the sailors, and of such a master as might succeed to [485] the command in foreign ports, without their knowledge, upan the decease or absence of the master originally appointed. 2 Marsh. Ins. 443. In the present case, the barratry of the master, by the express terms of the policy, is excluded from the perils, against which the plaintiffs were insured; but the former practice in relation to the barratry of the mariners, remains unchanged. Had the vessel been lost, by the barratry of Marks, the second mate, while she continued under the command of the original master, it is conceded, that the defendants would have been liable. Does the accidental circumstance, that the master had previously died, make any difference with that liability? Had the plaintiffs done any act, by which Marks had been promoted to the command, the case might be different. But here the plaintiffs have done nothing to affect their rights. Marks contracted to serve as second mate, and such he continued during the voyage, notwithstanding the deaths of his superior officers, by reason of which additional duties were cast upon him. He was not the confidential agent of the owners, as was the case with the master appointed by them. In England, where a master can not sue, in a court of admiralty, for his wages, it has been holden, that a mate, who succeeds to the command of a ship, upon the death or absence of the master, may sue in that court for his wages during the whole voyage. But for bis extra services, performed as commander of the ship, he must resort to the common law courts. And the reason assigned, is, that having contracted to serve as mate, that character remains, although a new character is superinduced. Read v. Chapman, 2 Stra. 937. The Favourite, 2 Rob. Adm R. 192. “ He does not,” says Judge Story, “cease to be mate, but has thrown upon him cumulatively the duties of master. He is still mate, acting as master pro hac vice.” The brig George, 1 Sumn. R. 151. Such being the situation of Marks, at the time when the barratry was committed, it ought to be treated as the act of a mariner, for which the defendants made themselves responsible. Such a construction, we think, is in conformity with the spirit and meaning of the policy. The reasons for not [486] insuring against the misconduct of a master whom the own~ ers appoint, do not apply to a case like the present. The danger of collusion does not exist. A new trial, therefore, is denied. In this opinion the other Judges concurred. New trial not to be granted.