(Ss.)1. Definition of Barratry. 2. Acts of Barratry punishable by Statute. 1. THE term Barratry, which is often used as well by foreign writers as those of our own nation, is generally understood in this and in most other countries to denote a fraudulent act of the master or mariners committed to the prejudice of the owners of the ship (a). (1) In France it is often used (a) Emerigon, tom. 1, 366. See the cases, Marshall's Law of Insurance, 518. (1) See Stone v. National Ins. Co. 19 Pick. 34. > In the case of Earle v. Rowcroft, 8 East, R. 126, Lord Ellenborough, in delivering the opinion, of the Court, went into a full examination of the definition of barratry. He observed, "The original meaning of this term is to be collected from the Italian language, and is, according to Dufresne's Glossary, verbum, Barratria, fraus, dolus, qui fit in contractibus et Venditionibus. He does not apply it in any marine sense, or with reference to the particular relation of master and owners. In that sense, however, in which it is peculiarly used, as applied to subjects of British marine insurance, in the earliest reported case, which we find on the subject, it is considered as being precisely tantamount to fraud in the particular relation, which subsists between master, mariners, and owners, being such, by which a loss may happen to the subject matter insured." After reviewing the authorities, he proceeded to state; "After these various decisions of Courts of Law, we are certainly warranted in pronouncing, that a fraudulent breach of duty by the master in respect to the owners; or in other words, a breach of duty in respect to his owners with a criminal intent, or ex maleficio, is barratry. And with respect to the owner of the ship or goods, whose interest is to be protected by the policy, it can make no difference in the reason of the thing, whether the prejudice he suffers be owing to an act of the master, induced by motives of advantage to himself, malice to the owner, or a disregard of those laws, which it was the master's duty to obey, and which (or it would not be barratry) his owners relied upon his observing. It has been strongly contended on the part of the defendant, that if the conduct of the master, although criminal in respect to the state, were in his opinion likely to advance his owner's interest, and intended by him to do so, it will not be barratry. But to this we cannot assent. For it is not for him to judge in cases not intrusted to his discretion, or to suppose he is not breaking the trust reposed in him, but acting meritoriously, when he endeavors to advance the interest of his owners, by means which the law forbids, and which his owners also must be taken to have forbidden, not only from what ought to be, and therefore must be presumed to have been, their own in a more enlarged sense, and comprehends acts of mere ignorance or unskilfulness not accompanied with a fraudulent design. *To our definition of barratry, it is not essential that the act should be done by the master, for his own benefit, or with the intent of injuring his owners. Thus, if he sail out of port without paying port duties, whereby the goods are forfeited, lost or spoiled (b), or if he cruise in quest of prizes without proper authority, and contrary to the orders of his owners (c), or if he disregard an embargo (d), or attempt a breach of a blockade (e), or be concerned in smuggling, or connive at smuggling by his mariners (f), he is guilty of barratry. And where a master had general instructions to make the best purchases with despatch, it was considered that such instructions must mean legal purchases and legal despatch, and that going into an enemy's settlement to trade, although his cargo could be more speedily and cheaply completed there, (the ship being seized and confiscated on account of it), was barratry (g). Nor was it [† 184] thought to make any difference that he intended *thereby to promote his owner's interest. It is not for him to (b) In Knight v. Cambridge, 1 Stra. 581; 2 Lord Raym. 1349; Stamma v. Brown, 2 Strange, 1174. (c) Moss v. Byrom, 6 T. R. 379. (e) Goldschmidt v. Whitmore, 3 Taunt. 509; Everth v. Hannam, 6 Taunt. 375. (f) Lockyer v. Offley, 1 T. R. 252; Pipon v. Cope, 1 Campb. 434. (g) Earle v. Rowcroft, 8 East, 126. sense of public duty, but also from the risk, and loss likely to follow from the use of such means." The doctrine of this case has been admitted into our commercial law. Kendrick v. Delafield, 2 Caines, R. 57; Cook v. Commercial Insur. Co. 11 John. R. 40; Grim v. Phoenix Insur. Co. 13 John. R. 451; Thurston v. Columbian Ins. Co. 3 Caines, R. 89; Suckley v. Delafield, 2 Caines, R. 222; Wiggin v. Amory, 14 Mass. R. 1; Taggard v. Loring, 16 Mass. R 336; Richardson v. Marine Insurance Co. 6 Mass. R. 102; Cook v. Essex, &c. Insur. Co. 6 Mass. R. 122; Wheeland v. Gray, 6 Mass. R. 124; Ward v. Hood, 13 Mass. R. 539; Wilcocks v. Union Ins. Co. 2 Binn. 574; Dederer v. Delaware Insur. Co. 2 Wash. Cir. R. 61; Marcadier v. Chesapeake Insur. Co. 8 Cranch, 39. Among cases of barratry may be enumerated, the sailing out of port without paying port duties, whereby the ship is forfeited. Knight v. Cambridge, 1 Str. 581; 2 Ld. Ray. 1349, 8 Mod. 236; Stamma v. Brown, 2 Str. 1174; 9 East, R. 135; Vallejo v. Cowper, Cowper, R. 153. So breach of an embargo. Per Buller, J. in Robinson v. Ewer, 1 T. R. 127. So breach of blockade. Richardson v. Marine Insur. Co. 6 Mass. R. 102. So resistance of search. Saloucci v. Johnson, Park on Insur. ch. 18; Garrels v. Kensington, 8 T. R. 230. So smuggling. Haverlock v. Hancill, 3 T. R. 277; Suckley v. Delafield, 2 Caines, R. 222. So cruising under a letter of marque, against the owner's instructions and intentions. Moss v. Byrom, 6 T. R. 379; Wiggin v. Amory, 14 Mass. R. 1. So illegal rescue of a neutral ship, by the master, after capture. Wilcocks v. Union Insur. Co. 2 Binn. 574; Dederer v. Delaware Insur. Co. 2 Wash. Cir. R. 61. But deviation through mere ignorance is not. Phyn v. Royal Ins. Co. 7 T. R. 505; nor through a mistaken sense of duty. Wiggin v. Amory, 14 Mass. R. 1. See also, Hood v. Nesbit, 2 Dall. R. 137; S. C. 1 Yeates, R. 114; Thurston v. Columbian Insur. Co. 3 Caines, R. 89. *judge in cases not intrusted to his discretion, or to suppose that he is not breaking the trust reposed in him but acting meritoriously, when he endeavors to advance the interests of his owners by means which the law forbids, and which his owners must be taken to have forbidden, not only from what ought to be, and therefore must be presumed to have been, their own sense of public duty, but also from a consideration of the risk and loss likely to follow from the use of such means. But an error of judgment in matters intrusted to his discretion and not contrary to law, admits of a different consideration, and accordingly, when in an action on a policy of insurance, the loss being alleged by barratry of the master, it appeared that his ship having sprung a leak, he took her into port, and before any survey made, broke up her ceiling and end bows with crow bars, thereby injuring and weakening her, Lord Ellenborough, addressing the counsel for the plaintiff said, "To constitute barratry, which is a crime, the captain must be proved to have acted against his better judgment; as the case stands, there is a whole ocean between you and barratry" (h). Barratry may be committed by the owners or master against the general freighter, or with consent of the freighters against the owner (i). It would seem that one part-owner being master may commit barratry against another (k), but if the master be sole owner he cannot commit barratry against *himself (1). 2. But though this word, taken even in the more limited sense in which it is used in this country, does not denominate any crime punishable by law, yet several offences committed by the master and mariners, in violation of their trust and duty, and which fall within the definition of barratry, are punishable by different statutes, which I shall now proceed to mention. First, as to the offence of wilfully destroying the ship. This is still, under circumstances of aggravation, punishable with death. By the first statute passed on this subject, in which it was recited, that "it often happens that masters and mari[† 185]ners of ships † having insured or taken upon bottomry, greater sums of money than the value of their adventure, do wilfully cast away, burn, or otherwise destroy the (h) Todd v. Ritchie, 1 Stark. Rep. 240. (i) Valleyo . Wheeler, Cowp. 143; Soares v. Thornton, 6 Taunt. 627. (k) Boutflower v. Wilmer, 2 Selw. 976; Bell's Principles of the Law of Scotland, p. 188. (1) Ross v. Hunter, 3 Term. Rep. 33; Nutt v. Bourdeaux, 1 T. R. 323; Stam. ma v. Brown, 2 Strange, 1173. ships under their charge, to the merchants and owners' great loss." It is enacted, "That if any captain, master, mariner, or other officer belonging to any ship, shall wilfully cast away, burn, or otherwise destroy the ship, unto which he belongeth, or procure the same to be done, he shall suffer death as a felon " (m). By the second, it is enacted, "That if any captain, master, mariner, or other officer belonging to any ship, shall wilfully cast away, burn, or otherwise destroy the ship, unto which he belongeth, or procure the same to be done, to the prejudice of the owner or owners thereof, or of any merchant or merchants, that shall load goods thereon, he shall suffer death as a felon " (n). Further provisions were made in the reign of George the First (o), but soon after the determination of an important prosecution at the Old Bailey (p), and I presume in order to remedy a defect in the law manifested on that occasion, they were repealed (q), except as to prosecutions for offences committed before the 16th of July, 1803 (r), and other provisions substituted by the 43 Geo. 3, c. 113, which was in force when the fifth edition of this work was published. * The 9 Geo. 4, c. 31, repeals the 43 Geo. 3, c. 113. So much of the 22 & 23 Car. 2, c. 11, as relates to the wilful destruction of any ship by any of the persons belonging to it; and so much of the 33 Geo. 3, c. 67, as relates to persons who shall wilfully and maliciously set fire to or destroy or damage otherwise than by fire, any ship, keel, or other vessel, were repealed by the 7 & 8 Geo. 4, c. 27. Other provisions upon this subject were made by the 7 & 8 Geo. 4, c. 30, which, except those contained in the tenth section as to damage done otherwise than by fire (and offences committed previously to or upon the 30th of September 1837) are now also repealed, and it is enacted, "That whosoever shall unlawfully and maliciously set fire to, cast away, or in anywise destroy any ship or vessel, either with intent to murder any person, or whereby the life of any person † shall be endangered, shall be guilty [† 186] of felony, and being convicted thereof shall suffer *death (s). (m) 22 & 23 Car. 2, c. 11, s. 12. (n) 1 Anne, stat. 2, c. 9, s. 4. (0) 4 Geo. 1, c. 12, s. 3; 11 Geo. 1, c. 29, s. 5, 6, and 7. (p) The case of Easterby v. Macfarlane, Addenda to East's P. C. p. 26. (9) Id. sect. 4. (r) 43 Geo. 3, c. 113. See cap. 79 of the same year as to Ireland. (s) 7 Wm. 4, and 1 Vict. c. 89, s. 4. A pleasure boat, eighteen feet long, was set fire to, and Patteson J., inclined to think it was a vessel within the meaning of the act. R. v. Bowyer, 4 C. & P. 559. Upon an indictment for firing a barge, Alderson, J., said, "that if the prisoner *That whosoever shall unlawfully exhibit any false light or signal, with intent to bring any ship or vessel into danger, or shall unlawfully and maliciously do any thing tending to the immediate loss or destruction of any ship or vessel in distress, shall be guilty of felony, and being convicted thereof shall suffer death (t). "That whosoever shall unlawfully and maliciously set fire to, or in anywise destroy any ship or vessel, whether the same be complete or in an unfinished state, or shall unlawfully and maliciously set fire to, cast away, or in anywise destroy any ship or vessel, with intent thereby to prejudice any owner, or part-owner of any such ship or vessel, or of any goods on board the same, or any person that hath underwritten or shall underwrite any policy of insurance upon such ship or vessel, or on the freight thereof, or upon any goods on board the same, shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the Court, to be transported beyond the seas for the term of the natural life of such offender, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years (u). "That whosoever shall by force prevent or impede any person endeavoring to save his life from any ship or vessel which shall be in distress or wrecked, stranded, or cast on shore, (whether he shall be on board, or shall have quitted the same) shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the Court, to be transported beyond the seas for the term of the natural life of such offender, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years (v). "That whosoever shall unlawfully and maliciously destroy any part of any ship or vessel which shall be in distress, or wrecked, stranded, or cast on shore, or any goods, merchan dise, or articles of any kind, belonging to such ship [† 187] or vessel, shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the Court, to be transported beyond the seas for any term not exceeding fifteen years, nor less than ten years, or to be impris*oned for any term not exceeding three years (w). (1) was convicted, he would take the opinion of the judges, whether a harge was within the meaning of the statute." R. v. Smith 4 C. & P. 569. (t) Sect. 5. (u) Sect. 6. (v) Sect. 7. (20) Sect. 8. (1) The act of Congress of the 26th of March, 1804, provides, (§ 1,) that any person not being an owner, who shall on the high seas wilfully and corruptly cast away, burn or otherwise destroy any ship or other vessel, unto which he belongeth, being the |