2 U.S. 137 (1792)

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U.S. Supreme Court

HOOD'S EX'RS v. NESBIT, 2 U.S. 137 (1792)

2 U.S. 137 (Dall.)

Hood's Executors v. Nesbit, et. al.

Supreme Court of Pennsylvania January Term, 1792

This was an action (tried at the sittings in Philadelphia in Nov. last) brought on a policy of insurance on the ship America, commanded by captain W. Keeler, from Philadelphia, to, at and from Fayal, against the defendants as underwriters. The jury found a special verdict; which, after stating the policy, the defendants' subscription, and the arrival of the ship at Fayal, on the 23rd December 1785, proceeds thus: 'And the said jurors further say, that about three weeks after the said William Keeler had so arrived at Fayal, in the said ship, he the said William Keeler, at the request of a certain captain Barnes, on the suggestion of Duncan Ross did with and on board the said ship America, sail from the said island, in quest and pursuit of a certain sloop called the Fly, whereof the said Barnes was master; which said sloop had been run away with by the seamen, belonging to her: and that the said William Keeler did return from the said pursuit, in the said ship, within 8 days after she had sailed from Fayal aforesaid; and that the said ship afterwards, on the 31st of January 1786, was, by storm and tempest, wrecked upon the island of Fayal and totally lost. And the jurors further find, that the said W. Keeler, by his agreement with the said captain Barnes, was to have received, as a compensation for his services in going with the ship America aforesaid, in pursuit of the said sloop, the sum of L 100 sterling; and that in going from the island of Fayal aforesaid, he had no view of, and did not intend, any exclusive profit or advantage to himself; but did intend that the benefit and advantage to be derived therefrom, should be for the owners of the said ship and himself. And whether the law be for the plaintiffs, &c. & c. they submit, &c. &c.'

The cause was argued by Lewis, and Sergeant for the Plaintiffs, and by Wilcocks and Ingersoll for the Defendants.

The Plaintiffs contended, that the departure from the course of the voyage amounted to barratry, and could not be considered as a mere deviation. As the consent of the owners is not stated, it cannot be presumed, and in many of the cases the want of consent is relied on as a principal ingredient in barratry. It is not necessary there should be a direct evil intention: Lata culpa & crassa megligentia will amount to barratry. Parke 95. Barratry is neglect

Page 2 U.S. 137, 138

of duty. Every wilful and inexcusable departure is a gross breach of duty, and amounts to barratry. Ibid. 93. It is said, he intended to benefit his owners as well as himself; but to construe this as an excuse would be productive of fraud. The master may easily pretend great zeal for his owner's interests, and yet sacrifice them to promote his own. In the definition given by Parke, it is said p. 94, it must be 'tending to his own benefit': This does not mean exclusive benefit. The master runs no risk himself by going out, but he might get L 50 by it; while he hazarded his owner's insurance, the mere premium of which was almost equal to the price he was to get, for giving chase to the Fly. The words of Parke, p. 94, are 'If it is for the benefit of his owners, and not for his own benefit, it is no barratry.' But here the departure was with a view to his own private advantage. He sacrifices the policy, wages, provisions and the safety of the ship, for a paltry expectation of private gain. A mere error might excuse; but here it is very different, and if the principle be established there will be no security for owners. The cases put in the books, shew that the principle contended for by the defendants is not found. Deserting a ship is barratry. Parke 93 'So when the master of a ship defrauds the owners by carrying the ship a different course.' Post. Dict. His interest is out of the question. So sailing out of port without payment of the duties, is barratry, though the master gains nothing by it: And Justice Builer seemed to think (Parke 103.63) that breach of an embargo (tho' perhaps done with a view to the owner's interest) was barratry. But when he has his own gain in view, the case is stronger; nothing but pure intentions can purge the act: And in Vellege & Wheeler, Parke 100, stress is laid on the circumstance, that the master was acting for his own benefit.

On the part of the defendant, it was urged, that here was a plain deviation stated, and unless the departure was clearly an act of barratry, judgment must be for the defendant. They said, that in all the cases respecting barratry, some circumstances of fraud, gross negligence, or evil and criminal conduct towards the owners, were stated. 1 Tem. Rep. 323. It must be more than devition; it must be something criminal. Parke 93. 1 Post. Dict. 136. 214. Cowp. 154. All define it to be a trick, fraud, or cheat, upon the owners. The definition, in Parke 94, is a good one; and we contend it must be for the exclusive benefit of the captain to make it barratry. There is no case which hints, that the captain may not connect his own interest with that of the owners. In Stammer v. Brown. 2 Stra. 1173, it must be something of a criminal nature, as well as a breach of contract. If he mistook honestly, the owners must bear the loss. The want of consent on the part of the insured is not sufficient of itself: So is Parke 335. The owners abide by all the misconduct of the captain, but such [2 U.S. 137, 139]

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