I nlro duclo ry .

4 n Op inio n o f H on . C harles P . D aly, C hief

Justice o f th e C o urt f
o C o mmo n P leas , ( rende red in
a case w hi ch w ill app e ar in th e o fiicial rep o rts of
that C o u rt) treats of maritime barratry and is
, ,

of sp ecial interes t no t o nly to s cho la rs bu t to

, ,

tho se eng ag ed in th e practical administratio n of

co mmerce .

Th e p o int discu ssed is f

o ne o no litt le co mmercia l
imp o rtance ,
and which h as b eco me so mewhat co n

f u s ed by l o r sup e7 fl cia l app licatio n and

ca re e ss

co ns ideratio n" 14 nd t o t h e dis cuss io n of it in this ,

cas e t,
here h as b een app lied rare scho larship and ,

philo logical research as w ell as a nice dis crimina

‘

tio n of au tho ritie s w ith th e v alu ab le resu lt that an ,

ancie nt and imp o rt ant ru le of ma ritime law, is

rest o re d f ro m u ndes erv ed do u bt and o bscu rity .

I n this v i ew th e necessary p ermissio n h as b een

,

o btaine d f o r p u b li catio n of
,
th e Op inio n in p am
phle t f o rm .
 OPINION .

DALY Chie f Justice Among the risks i nsured against

, .
"

was barratry o f the master and mariners and the q ues ,

tion presented in th e case is whether the ninety ba les ,

o f cotton were l ost thro ugh an act which the law w o uld

denominate barratry o n the part o f th e maste r .

These ninety bales were stowed upon deck and we re ,

j ettisoned in a storm They were a part o f 2 0 2 bales

.

covered by the policy which by the plainti ff s order were

, ,
’
,

shipped f ro m Augusta Georgia to C harleston So uth

, , ,

Caroli na by railroad thence to be shipped to Liverpool by

, ,

the barq ue V ictoria the master giving a clear b ill o f lading

,

f o r the 202 bales the plai nti ff s age nt having e ngaged

’
,

f reight f o r the whole by that vessel For want o f room .

in the Victoria the ca ptain se ntseve nty seve n o f the bales

- -

by another vessel the Albert which arrived saf e ly in

, ,

Liverpool Thirty o f the bales were stowed in the hold

.

o f the Vic t oria and the remaining ninety were carried

,

upo n her deck and in a viole nt s to r m were throw n

,

overboard f o r the preservatio n o f the vessel .

Be f ore the Victoria sailed a merchant in Charle sto n , ,

whose fi rm was ac ting as age nts f o r the vessel,discoveri ng

tha t the captain was stowing cotton o n deck opposed it ,

and wanted h im to se nd the cotton by another vesse l .

He advised the captain o f th e responsibility he was as

suming and told h im s ubsta ntially that as he had signed
, , ,

clear bills o f lading he was bo und either to carry the

,

cotton under deck or to provide f o r it o n deck by ext ra

,

insurance ; that the ins urance taken o n a c lear bill o f .

lading would no t cover cotton o n deck But the captai n .

,

no twithsta nding th is re mo nstrance stowed the cotton upon ,

the deck .
 6

This it is claime d amo unted to barratry o n the part o f

, ,

the master within the legal meaning o f that term in th e ,

co mprehensive sense in which it has been defi ned by Lord

Hardwicke as an act o f wro ng done by the master against
,

Lewi n v S uasso Po sth e lwh aite s

” ’
the shi p and goods . .

Dict y A ssurance which is co mme nded by Arnold as the

’
,

te rsest and p erhaps best defi nition o f the word Arno ld o n .

I nsurance 82 1 note h
, , .

This definition o f Lord Hard wicke is too general to be

of much practical value in dete rmining whether the act o f
the captai n in stowi ng these ni nety bales o f cotton upon
deck without providing f o r the i ncreased peril by extra
,

ins urance was or was no tbarratry It was an act o f neg

, .

lige nce f o r which he or the owner o f the ship may have

been respo nsible and in that sense was a wro ng to the
,

goods or the ship within the language o f Lord Hardwicke

b ut it d oes no t necessarily f ollow f ro m this that it was
what the law deno minates barratry Wh at was said by .

Lord Hardwicke moreo ver has no tthe weight o f a decision

, ,
.

It was b ut a general observation The question in the .

case was no twhether barratry h ad been co mmitted f o r the ,

captain there was the ge neral owner o f the ship which he ,

had bottomried and mortgaged b ut o f which he had the ,

control and navigation ; and the point determined by the

co urt so f ar as can be gathered f rom the imper f ect rep ort
,

o f the case in an e le me ntary work was that the owner o f a ,

ship could no t ei t her at law or in equity be guilty o f a

, ,

barratry concerni ng the ship .

I n the solution o f the question be f ore us there f ore we , ,

must look beyond this defi nition to ge t a clear idea o f the

exact legal meani ng o f barratry and the inquiry is by no ,

means easy f o r the question is o ne that has greatly

,

p erplexed the co urts and f rom what h as been said res pect
,

ing it in co mp ara tively recent case s the meaning o f it has

, ,

become nearly as uncertain no w as when the question was

 7

fi rst agi tated in Westmi nster Hall o ne hundred and fi f ty

years ago .

It was fi rst considered by the English co urts in 1 724 in ,

the case o f Knight v Cambridge reported in the eighth

.
,

volume o f the Modern Reports 230 af terward in the second , ,

o f Ld R aym 1 3 49 and again in Strange 4 8 1

. .
, In the fi rst , .

re p ort in the eighth Modern Rep the court is putdown

,
.
,

as saying that Barratry is a word o f more exte nded sig

io n than only to include the master s r unning away
’
nifi cat

with the ship it may well include the loss o f the ship by
his f raud o r negligence b ut in the seco nd editio n o f the
volume it is stated in the margi n that f raud o r negligence ,

would no thave been good b utthis was af terwards o mitted

in the fif th edi tio n k nown as the corrected and standard
,

o ne o f the Moder n Reports .

In Lord Raymo nd s report o f the case which is a very

’
,

brie f o ne he states that the ground was take n that as the

, , ,

owner o f the goods has his re medy against the owner o f the
s hip f o r an y prej udice he receives thro ugh the f ra ud o r

negligence o f the master there is the less reason that th e

,

ins urer should also be liable to h im f o r the act as an act o f ,

barratry and that if barratry i mports f raud it does no t

, ,

i mport neglect ; the allegation havi ng been that the ship

was lost thro ugh the f raud and neglecto f th e master a point ,

which the court me t by saying Barratry i mports f raud , ,

and he that co mmits a f ra ud may properly be said to be

g uilty o f a neglect viz o f his d uty to which the co urt

,

added the general observation that barratry was no t co n

fi ned to the r unni ng away with the ship because it i mp orts
any f raud
”
The report in Strange is still more brie f b ut
.
,

if correct more i mportant beca use it states that the o bj e c

, ,

tion taken was that the allegation f ra ud and ne gligence o f

, ,

the master was more general than the word barratry and ,

was there f ore no t withi n the po licy and that the co urt
, , ,
”
said ainly is no t b utthe f raud is
The ne gligence cert ,
.
 8

It further appears in respect to this case f rom the argu ,

me nt o f J ustice B uller and the state ment o f Lord Mans

,

fi eld in Vallej o v W heeler C ow p 1 43 that the act of th e

.
, .
,

master in Knight v Cambridge was sailing witho ut paying

.

the port d uties which B uller argued mi ght hav e bee n b y

,

accide nt as well as by desi gn b utwhich as it s ubj ected , ,

the ship to forfeit ure was held to be barratry Lord Ellen

, .

boro ugh af terward referred to a manuscriptnote o f Mr .

Ford in respect to the question in this case of Knight v

, .

Ca mbridge which af ter stating that f raud w

, , as barratry ,

added I f the master sail o ut o f th e port w itho ut payi ng

p or t d uties w
,hereby the g oods a re f orfe ited lost or spoi led , ,
”
that is barratry This Lord Elle nbo rough tho ught was
.

probably the question decided upon the trial and at the ,

argume nt (Earl v R o wc raf t 8 E ast

. and th e act o f the
, ,

cap tain may possibly have been regarded as coming unde r

the category o f f ra ud upo n th e gro und that the design o r
,

e ff ect o f it was to def raud th e governme nt of the po rt

d uties .

The next case was S tamma v Brown Strange 1 1 73 in .

, , ,

which it was held that a devia tio n f rom the voyage by the
,

master f o r the benefi t o f the owners was no t barratry ,

although it le d to the destruction o f the ship and the lo ss

of the goods ins ured the co urt holding accordi ng to the
, ,

re port in Strange that to make it barratry the re must be

, ,

so m eth ing of a criminal nature as well as a breach o f co n ,

tract In a f urther acco unt o f this case it is s tated that

. ,

Chief Justice Lee defi ned barratry to be some breach o f ,

trust in the captain ea"maten cio

”
and said ( it being a policy ,

upon goods) barratry must be ex malefl cio with i nte nt to

destroy waste or embezzle th e goods per Lord E llen

, ,

boro ugh in Earle v Ro wcraf t supra .

, .

The next case was Elton v Bridge n Strange 1 26 4 in .

, , ,

which the crew compelled the captai n to return contrary ,

to his orders It was he ld that th is was no tb arratry f o r

.
,
 9

two reaso ns 1 That the act o f the master was excused

. .

by the f orce which he could no t resist A nd 2 Because . .

th e sh ip was no trun away with to defraud the owners '

.

This was f ollowed in 1 7 7 4 by Vallejo v Wheeler re

, , .
,

ported in Cowp 1 43 and more f ully in Lo flt 631 in which

.
, , ,

th e legal meaning o f the wo rd was elaborately discussed

th e argument o f Alley n f o r the p lainti f f as reporte d in ,

Lo fi t being es pecially disti nguished f o r its research and

‘

learning . I n the fi rst case (Knight v Cambridge supra) .

,

the co urt said that barratry came f rom barat signif ying ,

f r a u s and do lus ( fra ud a n d deceit ) f o r which it wo u ld see,m ,

f ro m the margi nal note the court relied upon th e glo ssary
,

o f D uf resne and D u C a nge and the French dic t

, ionary o f
Furetiere In the s ucceeding case o f Stamma v Brown
. .
,

supra the p lai ntiff s co unsel cited in s upport o f the same

’
,

meaning the Italian and Spanish dictio naries res pe c tively , ,

o f Flo rio and M inshe w and in s uppo rt o f these le xico ra

, g
p h e rs, A lley n in Va l lej o v W hee l er . cited this de fi nitio n ,

f ro m Ferrieres D ictio naire dc Jurisp rudence B arratrie e n .

ter m de marine est une tro mperie o u une malversatio n q ui se

co mmet par patron o n capitaine d un vaissea u pour f aire
,
’
,

perdre le s marchandises aceux aq ui elles appartiennent ”

.

The f ollowing f ro m Sav ary s D ictio naire U niversel de C o m

’

merce Barratrie de patro n e n ter me de commerce e t

marchandise ve ut dire le s larcins le s de sguise me ns e talter ,

at io ns de s marchandise q ui pe uve nt causer lo maitre e t

l e q uipage d un vaissea u ; e t ge ne ralme nt tout le s super
’ ’

ch eries e t m io ns q ui l s me tte nt so uve nt e n usage

’
alversat .

po ur tro mper le s marchand charge ur e t autres qui o nt ,

”
interest an vaissea u and gave this defi nition o f the word
,

f ro m D e nisarts Collection de Decisio ns No uv e lle s etc

’
.
, , ,

relative a la J urispr udence ; a work which h ad been pub

lish e d b ut so me two or three years be f ore in Paris Ce .

mo t signifi e malversatio n e ttro mperie par nu capitain o u

patron de navire marchand dans ce q ue a rapport a la ,
 10

q ue lite e ta la q uantite des marchandises He also claimed .

that it meant deceit or malversation in the maste r in the ,

ordi nances o f Louis XIV article 28 and showed that the

, ,

ordinances o f Rotterdam number 43 and o f Cope nhagen , , ,

number 3 8 disti nguished betwee n barratry and negle ct

,
.

Lord Mansfi eld in delivering the j udgment o f the co urt

, ,

declared that the previous E nglish cases did no taff ord any
precise defi nition o f what barratry was that the nat ure o f
it had no tbee n j udicially considered or defi ned in England
with accuracy and the n undertook to inquire i nto the ety
,

mo lo gy o f the word which ended by his leaving that i nquiry

,

no f urther advanced than he f ound it J ustice Aston .

,

however so f ar f rom agreei ng with Lord Mansfi eld ex

, ,

pres sed his astonish ment that there should th en be any

doubt as to what was meantby barratry and declare d as , ,

h is language is reported in Cowper that it co mprehended ,

every species o f f ra ud knavery or cri mi nal cond uct in the

, ,

master by which the owners or f reighte rs are i nj ured and

,
”
,

still more strongly as his words are given in Lo fi t I '

think it (barratry) has always been the sa me in idea and

g ener a l m ea ning tho ugh di
, ff eri ng in te r ms and no t al ways
settled in prac tice deceit villain/g k navery and f raud and
, , , ,

the entire c o urt united in the O pi nio n that it is barratry

where a master goes o uto f his course f o r the p urpose o f ,

smuggling f o r his o wn benefi t in the co urse o f which devia,

tion the vessel and cargo are i nj ured .

The authorities ref erred to in this case by Mr Alleyn .

show that as barratry was the n understood in France it ,

meant in ge neral terms f raud and malversation B ut

, , .

Emerigo n whose work was p ublished so me f e w years af ter

,

this c ase was decided gives it at least in France a much

, , ,

more exte nded signi fi cation He says that it co mmo nly .

i mplies the crime o f which a captai n is guilty in bei ng

f aith le ss o r treasonable to his offi ce that every f a ult into
,

which a cap tai n f alls is no tbarratry unless ac co mp anied by

 11

deceit or fra ud b utthe n as contradistinguish ed from this ,

general r ule he adds still among us (the French) it co m

, , ,

prises the case o f si mple f a ults as well as that o f f ra ud , ,

and re lies upon Vali n and Pothier f o r the state me nt that , ,

in addition to all ki nds of fraud it e mbraces simp le impru ,

dence want o f care or unskil lfulness ei ther in the mas ter

, ,
‘

or the crew Eme rigo n by Meredi th p 29 2 Bo ulay Paty

.
, . .
,

in his editio n o f Eme rigo n t 1 p 3 70 says that the c o m , .

, .
, ,

missioners o f the French commercial c o de intended by

barrat ry only willf ul infi delity or treason to his d uty o n the , ,

part o f the maste r or the seamen b utthatthe Cour Royale

, ,

o f Rennes decided that c usto m had given the word a more

extended meani ng and that it included simple f a ults

, .

I f such a change has been bro ught abo ut in France by

c usto m since the adoption o f the C o de dc C o mmerce in 1 80 7 ,

it h as no tbee n the case in this co untry no r in E ngland and ,

wi th us the inquiry as to the meani ng o f the ter m is e m

h arrassed by no s uch co nsideration On looking i nto the .

authorities moreover to which Eme rigo n refers I doubt if

, , ,

the question h as ever been examined as care f ully in France

as ithas been in England and th e c usto m ref erred to has ,

probably gro wn up f ro m th e impressions conveyed by the

observations o f Vali n Pothier and Eme rigo n writers who
, ,

gathered their idea o f barratry chiefly if no t exclusively , ,

f rom what is f ound respecti ng it in Le G uidon de la Mer ch , .

V § 6 ch IX the unk nown author o f wh ic h co mpilation

, , .
,

h ad no tvery clear ideas abo ut it as Pardess us has poi nted ,

o ut . U S " e t co nti nues de la Mer t 2 p 406 a 1 3 e d

.
,
.
, .
, , , .

1 8 47 Pardessus criticism o f the fi rst and third articles o f

.
’

the ninth chapter o f Le G uidon bei ng that the author ,

co nsiders as barratry accidents or events (evenements) in

which there is no tand cannot be any f ault in the maste r
‘

by drawing a disti nction between barratry o n his par t .

,

which is obligatory (f arole) or voluntary a dis

-

tinction which the learned co mmentator declares to be

'
 12

ab s urd and as de monstrati ng that the author did no t h im

, ,

self understand th e subject upon which he was speaki ng .

The passages in Le G uidon respect ing barratry upon ,

which Eme rigo n Valin an d Pothier rely are e v en in th e

, , ,

amended te xt o f Pardess us exceedi ngly obsc ure They ,

.

may be rendered in English s ubstantially as f ollo ws

Barat or Baraterie changes or alterations by the
master ; changes which he makes in the vessel or the
vo yage ; dev iatio ns by going to other p orts places o r
, ,

havens ; malversa tions r o bberies larcenies alterations

, , , ,

disguising the merchandise all pro ceedi ng f ro m the ne gli

,

gence o f the master or the crew ; o f wh ich the insurer

,

takes the risk and inde mnifi e s the i ns ured ; with the under
standing however that if the owner or his f actor is in a
, , , ,

place where he can hav e j ustice it shall b e his d uty in th e , ,

fi rsti nstance to pro ceed against th e master that th e dam

, ,

age may b e lessened o uto f th e f reight bef ore he addre sses

himself to the insurer ”
Ch IX O n th e other hand if
. . .
,

it is f ound that the loss or inj ury was caused f ro m def ects
in the sh ip as if the stays or hatches were no twell f aste ned
,

or ca ulked or the vessel was no ts taunch f rom the want o f

repair and through that cause the wa ter e ntered and
,

destroyed or i nj ured the merchandise the master bears the ,

loss which is to be de ducted f rom the f reight witho ut th e

, ,

ins urer or th e merchandi se contrib uti ng A nd ge nerally .

the master is an swerable f o r all whic h arises f rom h is f a ult ,

or that o f the ship if he have where wi th to pay or where

, ,

the loss did no texceed th e f reight I f it exceed s and he .

,

has no tth e means to make restitution the i ns ured is held ,

to dilige nce by the law o f Baraterie o f the Master and ,

must make it appear that he did all in his power be f ore he

can come up o n the i ns ured Ch V 6 C le riac Ro uen
. .
, .
,

1 6 7 1 pp 2 1 3 24 4
, .
, .

In the early c o mmerce o f the Mediterranean and the

Baltic as wi ll appe ar f rom numero us passages in the C o n
,
 13

s ola to de l Mare and in othe r primitive mari ti me codes the ,

master and the ship were answerable for loss or i nj ury to

g oods a rising f ro m neg lige n ce or other c ulp able ca use .

A nd where he was no t an owner of the vessel which he ,

co mmonly was in whole o r in part he was answerable f o r

, , ,

i nj uries to it through his f ault Af ter the practice o f .

marine insurance came i nto use in the thirteenth ce ntury ,

it was in some of the maratime cities c usto mary to hold

’

, ,

the ins urer respo nsi ble f o r s uch losses and in others it was ,

no t A nd where the i nsurer was res p onsible the practice

. ,

was no doub t as stated in Le Guidon that he was answer

, , ,

able only where the o wner a f ter due diligence was unable
, ,

to obtain i ndemnity f rom th e master .

Magens the author o f th e earliest English treatise

,

up on the law o f insurance p ublished in 1 755 af ter re f er

, ,

ring to a policy made in Florence in 1 523 and another ,

made in Ancona in 1 56 7 under which the insurer was answer

,

able for th e barratry o f the master and af ter pointi ng o ut ,

th e regulatio ns upon the subject in th e ordinances o f

Stockholm and Amsterdam and that s uch a liability ex ,

iste d in the po licies which were the n in 1 755 made in Lo n , ,

do n and in Antwerp gives it as his opi nio n tha t the

, ,

i nsurers are no t answerab le under a barratry clause f o r , ,

small pi lf eri ngs or extraordinary leakages proceeding .

f ro m bad c asks or where the inj ury to th e goods ari s

, es
f rom bad stowage or by their being putin a p lace exposed
,

to wet or f rom a defi ciency in the calking o f the decks or

, ,

otherwise ( 1 Magens pp 50 75 , .showi ng tha t at tha t

, ,

time negligence o f this description was no tbarra try In .

this connection however he ref ers (p 51 v o l 1 ) to an ordi

, , .
, .

nance o f F lorence in 1 523 which declared that if the goods

, ,

are sto wed o n deck with th e permission o f the ins ured the n ,

the ins urers are no t answerable f o r the damage ; b utif th e

mas ter s towed them o n deck witho ut the leave o f the
owner or o f the pe rson who made the insurance then the
, ,
 14

insurers sh all b e obliged to pay and may have their redre ss ,

against the master ; which is s ubsta ntially the case no w

be fore us He ref ers also to ano ther provision in the
.

same ordinance which he says declares that the i ns urer

,

shall fi rst pay and a f terward go to law , .

The liability o f the ins urer in this early Florentine ,

ordinance is predicated upon the re me dy which it is

,

therein recognized he had agai nst the master af ter paying ,

the ins urance ; b utthe existence o f any such re medy under ,

the syste m o f law preva ili ng at the prese nt day there ,

bei ng no privity o f contract between the i ns urer and the

master is denied by the elementary write rs upon the law
,

o f i ns ura nce ( 2 Phi llips o n I.ns uran ce Lord K e n ,

y o u
, in a ni si p rius case ( Bird v Tho m ps o n 1 E s p .
, .

thoughtthat the ins urers might maintai n an action against

the mas ter when the loss paid by the m was occasioned by
,

his barratry He ad mitted h o wever that he knew o f no

.
, ,

action o f that sort ever having been bro ught and it has ,

been decided in several well co nsidered cases that no such -

,

action can be maintained by the ins urer against the ince n

diary to recover f o r the loss paid upo n a fi re policy or to
, ,

recover f ro m the p erson whose negligence ca used the

death the loss paid upon a lif e policy cases certainly
,
"

analogous in principle Rockingham Insurance Co v Bo . . .

sher 39 Me 253 ; Connectic ut Ins Co v The Ne w York St

,
. . . .

New Have n R R C o 25 Conn 265 . . .

, . .

Vali n in his commentary upo n the ordinance o f Lo ui s

,

XIV i nf ers that loss or inj ury arisi ng f rom any f ault or
,

neglige nce in the master is barratry and there is certai nly ,

a f oundation f o r that construction in the very ge neral lan

g uage o f the twenty eighth article o f that ordinance and
-
,

the opinion o f Poth ier is to the same e ff ect B ut it is to .

be borne in mind that when Valin wrote his comme ntary ,

the mariti me law in France had f allen into great neglect

( R e dd ie s Historica
’
l View of the L aw o f Mariti m e C o m
 15

merce part 4 ch 4
,
and that Pothier b y h is o wn ad
, .
, ,

mission had g ive n b ut little attention to mariti me law

,

indeed so little tha this inexperience in the opinio n o f his

, ,

editor Estrangin involved h im in gross and palpable

, ,

errors Meredith s Introd uctio n to Emerigo n XIII XXII

.
’
, , ,

" XVI .

When the full meaning o f a word is o bsc ure and the ,

exte nt to which it can be applied do ubtf ul the proper ,

course is to i nq uire i nto its origin and his tory which if , ,

ascertainable will di sclose its exact and f ull meani ng ; f o r

,

etymology f reque ntly sheds light where all other sources o f

inq uiry f ai l This no o ne o f these eminent Fre nch writers
.

attempted Indeed Eme rigo n knew so little respecti ng

.
,

the term that he s peaks o f it as a barbaro us word nu

, ,

k nown to antiq uity S uch an inq uiry at that ti me

.

was diffi c ult Lord Wensleydale writi ng at th e close

.
,

o f the last ce nt ury said The deri vations o f barratry

,

have rather te nded to conf o und th an to throw any light

up on the s ubj ec t; f o r its roo thas bee n so freque nt ly al
to red accordi ng to the caprice o f the partic ular wri ter
, ,

that it is impossible to deci de which is th e true o ne Park .

"

o n Ins urance ch 5 This is rather an exaggera ted state

, . .

me nt The previous inquiries in E ngland h ad mai nly b ee n

.

in the right direction and the e mbarrass me nt was no t so ,

great as Lord We nsleydale supposed while the advances ,

that have since been made in philological inquiries will

enable us to trace th e word to its origi n and to show that ,

the English tribunals have been right in th e constr uction

they ha v e put up on it and that the French j urists have ,

expressed opinio ns up on insufiicie ntinf ormation .

It came i nto use in England af ter the co nquest as an , ,

Angle Norman word signi f ying st ri f e conte ntion o r wran

-
, ,

gling ; bei ng in that se nse as I i nf er directly derived f ro m , ,

an o ld French word barrat é signif yi ng the tossi ng up and ,

dow n o f the contents in a ch urn C o tg rave s Fre nch and

’
-
,
 6

English Dictionary London 1 632 and was used in that , , ,

sense by early English writers in several f or ms barrat , ,

baret barret
,
t
e Boucher s Glossary ; Coleridge s Dict y o f
.
’ ’ ’

O ld English Words ; Ke lh am s Nor man Dict y ; Wrigh ts

’ ’ ’

Provincial Dict y ; H av elo k the Dane ; Roxb urghe C lub

’

Collections O wl Nigh ti ngale ; Percy Soc C o l . .

It had also th e fur ther mea ning o f deceit and f raud ,

f ro m a nother o ld F re nch word barat si gni f yi ng deceit , , ,

trickery or cheating and which like the other Fr ench , ,

word ba/rrate c ame f ro m a co mmon origi n

, , .

From these so urces two words came ultimately into ,

use in E ngla nd ba r ratry and barrat o r and Coke

, in defi , ,

ning b arrator has le f t us a ve ry c lear i dea o f the le g a l mean

,

ing o f both words He is says Coke a mover stirrer up

.
, , ,

and maintainer o f stri f e in three ways " 1 In dist ur b i ng the .

peace 2 I n taking or detai ni ng the possession o f ho uses

. .
,

la nds o r goods which are in controversy by craf t or deceit

, , .

3 By sowi ng calumnies etc where b y discord and disq uiet

. , .
,

ariseth bet ween neigh b ors Case o f Barratry 8 C o 366 .

, . .

We have h e re bo th meanings s trif e and co ntentio n and , ,

deceit or f raud growing o ut o f the co mpo und origin and

,

synonymo us use o f the word I ndeed in the sense o f .

,

stri f e and contention it was used in connection with poli ,

cies o f insurance as late even as the middle o f the last

,

cent ury .

Kersey in his e di tio n in 1 70 7 of Phi llips New W orld

, , ,
’

o f W o rds gives as the sole defi ni t

, ion o f b arratry a wo rd
, ,

that is used in po licie s o f ins urance f o r ships signif yi ng ,

disse nsio ns and quarrels amo ng the offi cers and seamen ,

and Marti n in his E nglish Dictio nary o f 1 74 8 says barra

, , ,

try in ins urance signi fi es dissensions and quar rels a mong

“
,

offi cers and seame n B ut Kersey who p ublished a die .

,

tio nary o f his o wn betwee n these periods i ncorporates it

, ,

si mply as a law term as f ollows " Barratry (L , whe n

“
.

the master o f a ship cheats the owners or ins urers eith er ,

 18

signifi catio ns more o r less equivalent are to be f ound in ,

some f orm o r other in the tongues o f all the nations

of the I ndo European group that deri v e their lan -

uage f ro m this p a re nt s o u rce Th u s b arath /rum both

g .
,

in t h e Greek and in the Lati n was the name o f the ,

pit i nto which the conde mned cri mi nals were thrown and ,

as a word f o r pit d ungeon or the inf ernal regions became , , ,

barath ro in th e Spanish and the Portug uese and barat ro in ,

the Italian Mori n Dict y Etym y Paris 1 809 ; De Larre

.
’ ’
, ,

mendi Dict y C astellano etc 8 Sebastien 1 853 ; Roquette

’
, .
, .
,

Dict y Portugais etc Paris 1 860 ; La ndais Dict y Fran

’
, .
, ,
’

cais e tc Paris 1 834 ; Baretti Diz I taliano etc Firenze

,
.
, , , .
, ,

1 832 ; Andrews Lati n Lexicon Po tter s Grecian A ntiqui

’ ’

ties b 1 c 2 5
,
.I n the Lati n barratus was the t umult uo us
, . .
,

sho ut o f the Roman or Ger man armies when abo ut to e u

gage Cole s Latin and E nglish Dict y Lond 16 79 ; A n
.
’ ’
, .

drews Lati n Lexicon baritas In the earliest f or ms o f the

’
,
"

tongues that p revailed in France barat was the word in ,

g e n era l us e f o r deceit cheati ng deco y i ng fi n esse and tric k

c ry and in this sense w
, , ,

,
as i ncorporated in the f or m o f the

prayer used by th e penitents in the churches in aski ng f o r

g i v e n ess D u C an ge
. a n d D u f res n e s G l ossari um Paris 1 7 73
’
, , .

Menage Dict Etymo lo giq ue de la la ng ue Francais .

,

Paris 1 750 I n o ld Armorican it meant pe rfidy Ne co t

,
. . .

D ie t Francois Lati n Paris 1 5 73 ; Menage id

. I n o ld Bre
, , .

to n barad was the word f o r treaso n

,
Pelletier Dict Bre . .

to n Paris 1 7 52
,
In Provencal barat barat
, . el h o ratio and , ,

barat ie are all words signi f ying decei t o r deceptio n

, , .

Roque f ort Glossaire de la langue Romane Paris 1 808 , , .

H o nno rat Dict Prove ncal Paris 1 846

, The same word
.
, , .
,

in many forms was in extensive use th ro ugh o ut E urope in

,

the middle ages at the f airs and in the rude commerce o f , ,

the Mediterranean I n the Basque it was barata in the .

o ld C astilian bara j a in t h e S p a nish

,
b ara to a nd b arata in ,

the Port uguese barata barateria and in the Italian baratta , , , , .

 19

De Larrame ndi Dic Castellano Bascuence y Latin S Se .

, .

bastien 1 853 ; D ie Castellano Madrid 1 732 ; V o cab alario

,
.
, ,

Acad Della C rusa Madrid 1 786 Da C osta D ie Port uguez

.
, .
,

etc Lisbo n 1 78 4 ; Roquette Dic Por tugai s Paris 1 860 ;

.
, , .
, ,

Toselli O rigine della li ngua I talana ; Florio Dic by Tor , .

,

riano ; Barre t ti Diz Italian a ed Inglesi Firenze 1 832 Diz

.
, .

Della Lingua Italiana Bologna 1 820 In all these lan , .

guages barat o r so me word f ormed f ro m it by a change in

,

the termi nation as will ap pear by the lexicographers above

,

quoted meant stri f e contention or q uarrelli ng co nf us io n

, , ,

o r disorder i nt enti o nal wrong deceit cheating malicio us

, , , ,

ness and also barteri ng and selli ng

,
It was used in the .

f airs as a word desc ri ptive o f the strif e noise and co nte n ,

tion that existed in barte ri ng and trying to get the adv an

tage in exchangi ng o ne co mmodity f o r another which was ,

the early mode o f trading and as these noisy marts gave ,

rise to a grea tdeal o f the deceptio n trickery and chea ti ng ,

that may be practised in trade this word came to be ,

applied also to de note dishonesty in dealing Thus we .

,

have in the Italian o f the period a series o f words ex press ,

ive alike o f to struggle to contend to cheat to deceive to

, , , , ,

barter to exchange etc s uch as barratia barare baratto

, , , , ,

barat are barat eria baram

,
ento etc and th e same pec uliarity
, , .
,

exi sted in the Sp a nish in the Port uguese and in th e ,

French Menage relates tha t there was a cattle f air near

.

Lyons in France called the f air o f C h ar B arat ch ar de

,
-
,

noti ng dear or high priced and burntto cheat whi ch na me

-
, ,

he says was applied to it beca use those who cheate d at

, ,

tha t f air were no tobliged by its regulatio ns to return the

ani mals Menage Dict y Etymo lo giq ue etc baret The
.
’
, .
, .

Italian abo unds in o ff sho ots o f this wo rd o f like import ,

s uch as barattiere corrup tio n barattare a briber or bribe , ,

taker baratator an impo stor ba/rro o ne who cheats at , ,

cards h arm a knav e and the Spanis h is equally f rui tf ul o f

,

wo rds from it o f the same kind Taboad o Dico Espagnol .

, ,
 20

etc ; Par
. is 1 838 Ve l as qu ez
, Spa nish Dictio
. na ry ; B a
’

tis Italian Dictio nary In f act the c urious res ult o f

’
re t .
,

this inquiry is what has f requently been prov ed in the his

,

to ry o f lang uage that this wo rd with an origin so re mote

, , ,

has during so many ages in the diff erent co untries through

, ,

which it h as passe d and amid the many changes in its ,

‘

f orm tenaci o usly adhered to the general signifi cati o n o f

,

the two parent words o utof whi ch itsprung .

It was fi rst used as a marine term in the Basque ; at

least the first f orm o f it in that se nse which I have been ,

able to discove r is in that tongue no w o ne o f the oldest

,

languages in E urope In the Basque bar a baratu signifi ed .

-

delaying a ves sel abando ning h er seizing and giv ing her
, ,
.

over together with all that f ollowed there f rom and baratu
, ,

g a ld u stra ndi
,n g si nki n g or sc uttlin g
, her D o n Pio De .

Z uaga D ie by De Larramendi San Seba stie n 1 853

,
In , ,
.

the Basque the or iginal word was barato very little if at

, , ,

all changed f ro m the origi nal word in the Sanskrit bharat

,
a ,

and the above co mpounds were f or med f ro m it The .

Basque or Biscayanns were f rom a very early period dis , ,

tinguish e d as a maratime people whose power and whose ,

language at o ne ti me extended across the whole o f the

, ,

north o f Spain f rom the Bay of Biscay to the M e dit

, er

re neau and the Spa nish word barar which h as the same
, ,

general marine signifi cation was according to the S panish , ,

lexicographers derived f rom these co mpound Basque

,

words (De Z uaga id) Fro m ba/ra/r there f ore and f rom , .
‘

, ,

barat a which has long been and still is in use in S pani sh

, ,

came as I s uppose the S panish word ba/rateria the mean

, , ,

ing o f which is best expressed in th e Spanish defi nition o f

it La p erdida causada a lo s due no s de nu barco o sus
.
,

aseguradores por dolo o malicia del capitan o tripulacio n

( Ve lasq uez ) the lo ss or da m, a g e s ustai n ed b ythe o wn ers o f
a ship or i nsurers by the f ra ud deceit artifi ce o r wicked
, , , ,

ness o f the captai n or th e crew It was probably formed .

 21

and fi r st used in Catalonia in connection with insurance , ,

f o r the Catalan and the Castilia n the language s o f Cata ,

lonia have an admixture o f Basque words and the earliest

, ,

laws respecting i ns urance that we kno w o f are f ound in

the ordi nances o f Barcelo na a Catalonian city that carried , ,

p n an ex te nsive m ariti me co m merce with the so uth o f

France and with the co untries o f the East f r o m th e tenth ,

to the sixteenth ce nturies having a j udicial tribunal

exclusively de v oted to the consideration o f q uestions o f
maritime law and usage R e ddie s Histo rical View o f the .
’

Law o f Mariti me Commerce p 3 c 2 § 6 p 4 c 2 § 1 And , .

,
.
,
-
.
, .
,
.

the word in its marine sense does no tappear as f ar as I can

, , ,

fi nd to h av e bee n in th e early Italian or French dictio naries

, .

In Lockyer v O f fle y 1 T R 2 69 J ustice Wi lles who

.
,
. .
, ,

delivered the unanimous O pinion o f the co urt a f ter stating ,

that many defi nitions o f barratry were to be f ound in th e

books said " Perhaps this general o ne may comprehend
,

all case s Barra try is e very species o f f raud or knavery in

.

the masters o f ships by which the f reighters or owners

”
have been inj ured I n the s ucceeding case o f N utt v
. .

Bourdieu 1 T R 323 Lord Mansfi eld declared that barra

, . .
,

try must par take o f so meth ing crimina l and that it must be ,

committed agai nst the o wner o f the vessel either by the

master or the mari ners .

In Hav elock v Harriso n 3 T R 22 7 Lord Kenyo n

.
, . .
,

simply held that when the master in defi ance o f his duty
took o n board certain commodities which subj ected the
shi p to seiz ure it was barratry and in Ross v H unter 4
, , .
,

T R 35 it was decided that it was barratry where the

. .
,

master af ter hav ing deviated f ro m his course le f t the ves

, ,

se l f o r a f ra ud ulent p urpose and was never heard o f a f t er

ward ; there being ground f o r believing that the vesse l had
been lost B ullar J in th atcase said that barratry was
.
,
‘

”
a question o f law arising o ut o f f acts that it was well ,

set led and was in o ne se nse o f the wo rd

t ,
a deviation by
 22

the cap tain f o r f raudule nt pur po se s o f h is o wn and that ,

that was the distinction be tween dev iation as it was gen ,

and barr
”
erally used, at
ry .

This observatio n o f J ustice B ullar is i mportant if the ,

distinction made by h im is a c o rrec t o ne as it te nds to ,

show that negligence merely is no tbarratry Deviatio n it" .

the law o f i nsurance in its ge neral sense is any change o r

, ,

varying o f the risk without necessity or j ust cause by

, ,

which the risk is e nha nced Phi llips o n Insurance 9 77 .

, ,

9 79 4 60 9 84
, , It means voluntary acts or acts o f neglect
.
,

no tarisi ng f ro m necessity or j ust cause and if it does no t ,

co me within thi s exception it is wholly immaterial with

what motive th e act is done which is a dev iatio n or a de ,

parture ; f o r if af ter the ri sk is ass umed it is enhanced or

, , ,

v aried th e deviation discha rges the po licy

, Thi s is what .

Justice Bullar re f ers to when h e speaks o f deviatio n as i t

is ge nerally use d and the case no w be f ore us is a f amiliar
” '

illus tration o f deviations o f this ki nd which discharges ,

the policy ; f o r it is we ll settled that the expos ure o f the

goods in a greater degree to the peri ls o f th e sea by stow ,

ing them upo n the deck is an e nh ance me nt o f th e risk ,

which discharges the underwriter unless he is notifi ed o f ,

itbe f ore the risk or it is provided f o r in the po licy or the

, ,

ar ticle is o ne that is generally so carried or must be f ro m ,

its character Lennox v U S Ins C o 3 Johns Ch 1 78 ;

. . . . . .
, . .

Taunton Copper Co v Mercha nts Ins C o 22 Pick 1 08 ;

. .
’
. .
, .

S mith v Mississippi Fire and Mari ne Ins urance C c 1 1 La

. .
, .

1 42 ; Brooks v T h e O riental Ins urance C o

. 7 Pick .
,
.

2 59 ; Black e it v The Royal Exchange A ss urance C o

. 2 .
,

C ro mp and Jer 2 50 ; C rechy v Ho lly 1 4 Wend 25 ;

. . .
,
.

Phillips o n Insurance 4 60 and 9 85 Now the sto wi ng of

, .

the cotton upon deck by the master o f the Victoria .

wo uld no t withi n Justice B ullar s distinction be barratry

,
’
, ,

unless it was do ne by h im f o r so me f ra ud ule nt p urpose of

his o wn and o f this there is no prete nse or any thi ng at

, ,
 23

the evidence that would warrant us in assumi ng it

'

least in .

I n Mo ss v Byro n 6 T R 3 79 cr uising by the master

.
, . .
,

o f an armed merchantma n f o r prizes co ntrary to the orders

o f his ow ner was held to b e barratry f o r the re aso n t

,
l h at if ,

any loss or accide nt h ad happe ned to the shi p d uring that

i me the ow ners wo uld have bee n liable t o the f reighters
t , .

It is no t however a very satis f actory case no r very well

, , ,

reasoned A much more i mportant o ne is Pryn v The

. .

Royal Exchange A ss C c 7 T R 505 f o r there the e ntire . .

, . .
,

be nch Lord Kenyon and Justices Ash urst G rose and

, ,

Lawrence held that there must be f raud to constitute bar

, ,

rat ry .Each j udge expressed hi mself to that e ff ect and ,

the point may b e said to h ave bee n directly i nvolved f o r it ,

was a deviation f rom the vessel s co urse either f ro m igno ’

,

ra nce negligence or other ca use which le d to her capt ure

, , ,

and Lord Ke nyo n told the j ury that it co uld no t be barra ,

try witho ut a f ra ud ule nt purpo se in the cap tai n at the

time and he left tha tq uestion the existe nce or no t o f a
, ,

fraudulentp urpose to the j ury who f ound tha tth e de via , ,

tion was owing to ignorance or somethi ng else ; b utthat it

was no t f raud ulent and the co urt unani mo usly re f used to
,

dist urb the verdict Lord Ellenboro ugh in th e case al .

,

ready cited (Earle v R o wcro f t 8 East gave as the .

, ,

resulto f the p recedi ng cases and what h e evide ntly meant ,

to be a defi ni tion that a f raudulentbreach o f d uty by the

,

master in re spect to th e owners or a breach o f d uty in ,

respect to h is owners with a criminal intent or ex malefi cio ,

is b arratry and in a subseq uent case said that the term

”
, ,

was large e nough to include every species o f f raud o r malus

do lus co mmi tted by the master Boeh m v C o mbs 2 M
”
. . .
,

Se lw 1 72
. Wh ile in Todd v R itchie Stark 240 in which
. .
, .
,
‘

the vessel hav ing spr ung a leak put i nto the bay o f
, ,

G aspie where the master be f ore any s urvey had take n

, ,

place broke up her cei ling and bows with crow bars by which
, ,

th e ship was much inj ured and weakene d an act relied upon
 24

as having b een do ne to proc ure the conde mnation o f th e

vessel and there f ore amo unting to barratry Lord Ellen
, , , ,

boro ugh said In order to constit ute barratry wh ich is a ,

cra ne the captain must be proved to have acted against his

,

better j udgment and added as the case s tands there is

”
, ,

”
a whole ocean between yo u and barratry This ho wever .
, ,

was a nisi prius case The f acts are no tvery f ully repor ted
.
,

and without knowi ng h o w the case s tood upon the evi

,

dence it is no t possible to kno w the e xac t reasons upon

,

which he relied f o r no n suiti ng th e plainti ff -

.

This discri mination is the more necessary as there are ,

two oth er cases deci de d by this e mi nent j udge which can ,

scarcely be reco nciled with this case in Starkie In Hy man .

v Parish 2 Camp 1 49 the captain contrary to h is orders

.
, , , , ,

sailed in a f o ul wi nd h av ing be f ore ref used to sail when

,

th e wi nd was f air He disobeyed th e instructio ns o f the

.

pilot and an anchor having been go t o ut to pre vent th e

, ,

ship f rom goi ng o n shore he cutthe cable and allowed the

,

vessel to drif t upo n the rocks Lord E llenborough s aid .

th at upo n this evidence it was a clear case o f barratry

, , ,

and Park f o r the de f e ndant havi ng s ugges ted that there

, ,

did no tappear to be any f raud Lord E lle nboro ugh replied , ,

that that was no t necessa ry ; that it had been decided

that a gro ss malv ersation by the ca ptain in his offi ce is
barratrous .

In the other case ( Pipo n v Cope 1 the ves .

,

se l was seized in consequence o f the mari ners s muggli ng

g oods o n board an d a ltho

,
ugh this was do ne wi tho ut the
knowledge o f th e master Lord Ellenboro ugh held that it,

was a clear case o f gro ss negligence o n his part ; and th at it

was his d uty to have preve nted th e repeated acts o f s mug
g li ng by the seamen ; th at by neglecting to do so he h ad , ,

allowed the risk to be materially enhanced and by doi ng ,

so h ad discharged the under writers .

This case w o uld seem to hav e give n rise to the i mpre s

 26

collision which caused the loss o f th e goods was o ccasio ne d

b y the negligence o f the defendant s crew and the j ury ’
,

f o und specially that there was negligence o n th e p art o f

the de f e ndant s vessel As barratry was among the ex
’
.

ce pt e d p er ils in the bill o f ladi ng the de f e ndants i ns isted

,

that it was error in the j udge no tto dis ti ngui sh in this case
b etwee n o rdinary and gro ss neglige nce up on the assump ,

tion as I inf er that if the collision arose f rom gro ss negli

, ,

gence it was barratry a loss f o r which the def endants were

,

no t answerable B ut th e co urt re f used to disturb th e

.

verdict upon any s uch gro und ho lding that gro ss in co n ,

ne ctio n with neglige nce was a me re word o f descripti o n ,

and no ta defi nitio n and that no meaning c o uld b e attach e d

,

to it in co nnectio n wi th the case bef ore the court .

Lloyd v The same de f endants 3 H and Colt 284 was

.
, . .
,

a case arising also o uto f the same collision which came b e ,

f o re the co urt o f exchequer up o n the ple ad ings The aver .

ment in the declaration there was that the collision and co n

sequent inj ury was ca used by and thro ugh the gro ss careless
ne ss negligence mis manage ment and i mpro per conduct o f
, , ,

the de f endants their servants and mar iners an averment

,

upon which the de f endants re lie d as showing that the loss ,

was within the excepted perils o ne o f which was barratry ,

o f ma ster or mari ners ; b ut th e co ur t he ld in e ff ect that ,

it was an averment o f a loss by neglige nce and no tby b ar

rat ry Bro mnall J distinguishi ng that there might b e
,

wilful negligence and yet no t barratrous ; that barratry

implies a secret and f raudulent act against wh ich the ship
owner cannot guard whereas negligence may be prev ented
by employing a ski lf ul master and proper mariners .

The cases in o ur o wn Sta te are to the same eff ect In .

Grimm v The Phoenix Ins C o 1 3 Johns 451 the vesse l

. . .
,
.
,

being as in the case no w before us f ully laden 36 kegs o f

, ,

gunp owder were stowed in the cabin clo se up to the co m ,

panion way the plank of which toward the binnacle bei ng

,
 27

b uthalf an inch thick and the pla nk of the binnacle b ut

,

an inch thick The candle in the binnacle having burnt

.
,

down to the socket o n a stor my night and the socket being ,

too hot to putanother candle in it immediately a seaman , ,

as itwas blowing hard at the ti me stuck th e candle te m ,

po rarily against the side o f the binnacle which withi n , ,

twe nty mi nute s set the b innacle o n fi re and be f ore the fi re ,

could be ex ti nguished th e vessel blew up killing every o ne

, ,

o n board except o ne p asse nger

, Here there was negligence .

o n the part o f the master in stowing t h e gunpowder close

up to the co mpanio n way adj oining t h e binnacle wh ere a ,

lighted candle was ke pt cons tantly thro ugho ut the nigh t ,

and gross careles sness in the seaman whose ac t was the ,

proximate cause o f th e destruction o f the vessel T h e .

neglige nce o f the maste r in that case was of the same ge n

eral characte r as the neglige nce o f the mas ter in this I t .

was an act o f i mproper stowage and was like the negli , ,

gence in this case th e re mote though no t th e direct

, , ,

cause of th e loss the direct ca use here being the jettison ,

and there the fi re Barratry was o ne of the perils i nsured

.

against and it was claimed that the neglige nce there

,

established as it is claimed that the negligence h ere estab

,

lishes a loss by barratry

, Indeed that case was ev en .
,

stronger than this f o r there th e negligence o f the mariner

,

co o p erated with the previo us neglige nce of t

-
h e cap tain in
bringing about the lo ss But the court said that it was .

“
imp ossible to co nsider th e negligence by which the loss
was occasioned as a mo unting to barratry th at it was
well settled that an act to b e barratro us mus t be done
with a fraudulent inte nt o r ea"nmleficio I n The Ame rican
”
.

Ins Co v Bryan 26 Wend 5 7 8 Senator Verplanck said

. . .
, .
, ,

that barrat ry must mean and include all f ra ud knavery , ,

breach o f trust o r o th er criminal co nduct o f the master o r

,

mariners whereby the ow ner or freighter suff ers lo ss o r

, ,

the subj ect insured is destroyed and Chance llor Kent ,

 28

in h is co mmentaries d efi nes it to the same e ff ect b utmore

, , ,

precisely as meaning f ra ud ulent conduct o n the part of

the master in his ch aracter as master or of the mar iners
, , ,

to the i nj ury of the own er and witho ut h is consent and , ,

i ncludes every breach o f tr ust co mmitted with dishonest

3 Kent s C o m (4th ed ) 305
”
views
’
. . . .

It is clearly ded ucible f ro m these cases that a lo ss aris

ing f ro m what in law is deno mi nated negligence is no t
barratry B utJustice Joh nson declared in The Pa tap sco
.
,

I ns C o v Co ulter 3 Pet ( U S ) 234 that negligence

. . .
, . . .
,

itself when gross is e vi dence o f barratry Lord Wensley

, , .

dale ih h is work o n ins urance says tha t any act o f the

, , ,

maste r or mariners wh ich is gro s sly negligent tending to

, ,

th eir o wn benefi t to th e prej udice o f the owners o f the ship

v
,

and witho ut their consent and pri v ity is barratry Park ,

.

o n Ins urance (2d A m 84 Chie f J ustice Shaw says in

. .
,

Lawton v The Mutual I ns C c 2 C ush 500 that th e act

. . .
, ,

must b e willf ul and no t ca used by neglige nce unle ss the ,

ne gligence be so gross as to amo unt to f raud and Phillip s ,

includes in th e general defi nitio n o f barratry very gro ss ,

and c ulpable neglige nce in the master or mariners co n ,

trary to their duty to the owner and that might be prej u ,

dicial to h im o r to others i nte re sted in the v oyage o r ad

v enture 1 Phillips o n Insurance 1 062
. This h as le d to a , .

rene wed misappre h ension o f barratry by coupling neg ,

ligence with it The eff ect o f using such a term as

.

gro ss negligence is to mislead ; f o r in th e science o f the

law there is no suc h thing as degree s o f negligence There .

may be degrees o f care as more care is required in certain ,

case s than in others and it has beco me the h abit to distin

,

gui sh between slight ordinary and great care ; b ut what

, ,

ev er may be the degree o r amo unt o f care de manded in the "

p ar tic ular i nst ance it is the negl ect,to besto w it w hich is

”
expre ssed in the law b y o ne wo rd negligence See the .

c ases cited in Am Law Review vo l 5 pp 39 40

.
, .
, .
, .
 29

T h e legal meaning o f negligence has in a recent e le ,

mentary work been co mpre h ensively and very acc urately

,

defi ned as including every breach o f trus t no t clearly

,

int ent io nal as signi f ying th e want o f care cautio n atten

, , ,

tio n dilige nce or discretion in o ne hav ing no po sitiv e in

,

te ntion to inj ure ; consi sti ng e ithe r in the care less perfo rm
ance o f obligatio ns as s umed by contract o r the negle cto f ,

tho se which are i mposed by law Shearman and R edfi eld .

o n Ne glige nce ch 1 ; and barratry , as has b ee n sho wn

.
, ,

means much more than this As a marine term it means .

an i nte ntional i nj ury to the vessel o r to the cargo ; o r so me

unlawf ul f ra ud ulent or cr imi nal act whereby o r in th e
, , , ,

p ro sec u ti o n o f which lo ss o r i nj ury a rises to,the o wne rs o f

the vessel or o f the cargo or to the ins urers and does no t
, , ,

embrace what in the law is denomi nated neglige nce So .

f ar the re f ore as the plai ntiff s seek to recover under th e

, ,

po licy for a loss arising f ro m barratry this action canno t

, ,

be mai ntai ned .

It is no w settled in the law o f insurance that if th e ,

pro ximate ca use o f th e lo ss was th e peril insure d against ,

and the re mote ca use was some act o f neglige nce o n t he

part o f the master or of the mariners the underwriters are ,

liable as where fi re is o ne o f the peri ls insured agai nst

, ,

and the fi re which produced th e los s is attributa ble to an

ac tof neglige nce in the master o r any o f the c rew Se e .

th e case s collected in Phillips o n I ns urance g 1 09 6 Here , .

the proxi mate cause was the jettison and the remote o ne ,

the negligence o f the master in stowi ng the cotton up on ,

deck and a loss by j ettiso n was o ne o f th e perils i nsured

,

agai nst ButI do no t understand that this rule applies

.

where there has been a dev iation or de parture prod ucing ,

a change o f risk so material as to disch arge the under

writers from the policy f o r wh ere they insure go o d s up on a
,

clean bill o f ladi ng there is an implied warranty that the

,

goods are or will b e sto wed in the us ual and o rdinary man
 30

which is in the vesse l s hold and if this is no tdone ’

no r, , ,

b ut th e goods are carried o n deck exce pt in a cas e where ,

that is j ustifi able the po licy never at taches for the reaso n
, ,

that it is a greater ri sk than the underwriter agreed to

take 1 Phillips o n Insurance
. 460 686 704 ; 1 Arnold , , ,

o n Ins urance 2 1 3 A m ed , Le nnox v The U S I ns C c

, . . . . . . .
,

3 Johns Ch 1 78 ; S mith v Wrigh t 1 C ar 4 4 ; Wo lcott v

. . .
, . .

Eagle Ins Co 4 Pick 429 Goods carried up on deck are

. . .

no t withi n the p rote ction o f the po licy no r can there be ,

any clai m f o r co ntrib ution up on a general average if they ,

are j ettisoned exce p t in th e case s wh ere they are ge nerally

,

o r must necess arily be so carried ; or where itis do ne with

th e knowledge and i mplied co nsent o f the underwri t er ,

( Philli p s id , CXV which w a s no,t the cas e here .

The plaintiff s therefore have no cause of action against

, ,

the underwrite rs upo n the po licy The o nly remedy is an .

action agai nst the maste r o r h is pri nci pal for the damage s
sustai ned through the negligence of t h e master in carryi ng
the cotto n upo n deck .

The v erdict therefo re sho uld be set and a ne w

trial ordered .