Vallejo and Another v Wheeler
| Jurisdiction | England & Wales |
| Date | 1774 |
| Year | 1774 |
| Court | High Court |
English Reports Citation: 98 E.R. 1012
IN THE COURT OF KING'S BENCH, CHANCERY AND COMMON PLEAS
S. C. Loff, 631; see Cory v. Burr, 1881-83, 8 Q. B. D. 315; 9 Q. B. D. 471.
[143] michaelmas term, 15 george III. B. E. 1774. vallejo and another versus wheeler. Thursday, Nov. 10th. Barratry is every species of fraud or knavery in the master or mariners of a ship, by which the owners or freighters are injured; and a deviation, if such, is barratry; whether the loss happen during such fraudulent voyage, or after. Otherwise, if the deviation be with their privity or consent. [S. C. Loff, 631; see Cory v. Burr, 1881-83, 8 Q. B. D. 315 ; 9 Q. B. D. 471.] This was an action on a policy of assurance upon goods on board the " Thomas and Matthew," from London to Seville. The policy was made in the common form, with liberty to touch at any ports or places, &c. The loss was assigned different ways in the declaration ; first, by storms and perils of the sea, in consequence of which, the ship was obliged to go to Dartmouth to be repaired; and that afterwards, a further loss happened by storms, &c. Secondly, that it happened by storms and perils of the seas in the voyage generally ; and thirdly, by the barratry of the master. The causa was tried before Mr. Justice Ashhurst at Guildhall, at the sittings after Easter term 1774, by a special jury. On the trial it was proved, that this ship was put up as a general ship from London to Seville, and was let to freight by one Darwin, who chartered her to Brown the captain. That it is the course of vessels going on this voyage, to stop at some port in the west of Cornwall, to take in provisions. That this ship having taken her cargo aboard, sailed from London to the Downs; while she lay there, all the other ships bound to the westward bore away; but she staid till the night after, and then sailed to Guernsey, which was out of tho course of the voyage. That the captain went there for his own convenience, to take in brandy and wine on his own account; after which he intended to proceed to Cornwall. That the night after the ship quitted Guernsey, she sprung a leak, which obliged her to put into Dartmouth. [144] When she was refitted she set sail again and proceeded for Helford in Cornwall, where it was always intended she should stop to take in provisions; but in her way she received further damage, and at her arrival waa totally incapable of proceeding on the voyage, and the goods were much damaged. It was attempted on the part of the defendant to prove, that Willes was the owner of the ship; that the voyage to Guernsey was on his account, and the goods taken on board there his property : but this evidence went little further than information and belief, exeept that it was proved, that when the ship arrived at Helford, the wine was delivered to him in his cellar. The Judge directed the jury, that if the going to Guernsey was without the knowledge of Darwin, it was barratry ; and they ought to find for the plaintiff; but if done with his knowledge, then it was not barratry: and if they should be of opinion that it was without the knowledge of Darwin, then he desired them to say, whether they thought it was with the knowledge of Willes or not. The jury found a verdict for the plaintiff, and said they thought the going to Guernsey was without the knowledge of Darwin, whom they looked upon to be the owner, but they thought it waa with the knowlege of Willes. In Trinity term last, a motion was made for a new trial; and on shewing cause all the counsel on each side were heard. The Court then said, there were two points in the case. First, whether to entitle the plaintiff to recover, the loss must not have happened during the time of the barratry, or have been occasioned immediately by the act of barratry. If a policy be on a ship, and the ship is seized for smuggling, that is barratry ; but here the goods were not seized for smuggling, nor did the loss happen during the act of barratry, but afterwards. Secondly, whether though the I COWP. 1. VALLEJO V. WHEELER 1013 ship were let to freight, the captain was not subject to the orders of the owners. If a ship be let out generally to freight, the freighter is owner for that voyage; but if there be only a covenant to carry goods, the owner of the vessel would have the direction of her, and the hiring of the master and mariners. The Court ordered that the case ahould stand over till this term, and be argued by one counsel on each side. It was now argued by Mr. Buller for the plaintiff, and Mr. Alleyne for the defendant. [145] For the plaintiffs. The question is, whether the plaintiffs are entitled to recover for this damage from the underwriters 1 In order to support their claim they insist, that the conduct of the master in going to Guernsey, for the purpose and under the circumstances mentioned, was barratry. Supposing this to be barratry, then another question will arise, namely, whether the loss sustained by the plaintiffs waa in cotisequence of that barratry; or, whether that loss stands so totally unconnected with the voyage to Guernsey, as to be quite unaffected by it] In all the cases that have occurred on barratry, different definitions of the word have been attempted; and the same conduct has been observed in the present case : however, there will not be much difficulty in determining what is meant by the term in its general sense, whatever nicety may arise in fixing the precise limits of it, when occasion requires that should be done. Wherever a great nicety does arise, the insured should be entitled to the turn of the scale : for the end and view of insuring is, to secure the merchant against all losses and misfortunes whatever: and so very liberal are the underwriters in these days of their possessions in policies of what they do insure against, that some writers have thought it next to impossible that where a loss doea happen a doubt should remain. Molloy, B. II. cap. 7, sect. 7, says, "Almost all those curious questions that former ages and the civilians according to the marine law, nay and the common lawyers too, have controverted, are now out of debate. Scarce any misfortune that can happen, or provision to be made, but the same is provided for in the policies that are now used : for they insure against heaven arid earth, stress of weather, or whatsoever detriment shall happen or come to the thitii? j ,, l L O insured. Barratry in all the dictionaries is defined to be fraus, dolus, or deceptio. So are Minshew, Dufresue, and Spelman. Fraud means not only a crime, but any wilful fault or evil design; and even a neglect, provided it be crassa negligentia, will amount to barratry; which was the case of a master sailing out of port without paying duties.* That case approaches the nearest to the present of any that can be found, and even goes...
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