#### Grim *against*The Phœnix Insurance Company.

a vessel maingafnrst j^s.’daI a”sgeat|j1eenv“yar|! Jfgh?edPUtcandiS ^ichetookafire¡ “,tc°5TUaámé sel was blown lost fit wauAe^ were not liable fot the loss.

insurers are not responsible for ,he fault> negiigence, or miscond“at of th? Sfouitingio *ba¿*

occa. merenegngenbe the master or not amount t6 is^íactWdono ientmtent,ore*

THIS was an action on a policy of insurance, on the schooner *Melinda,*from *Philadelphia*to *New-York.*The policy contained the -usual enumeration of the hazards insured against; such ás perils of the *sea,fire, barratry*of the master and mari ners, &c. The vessel dropped down on the 12th *of^October,*1811, below the city *oí Philadelphia,*where she took in 136 kegs of gunpowder, which were all stowed in the hold ; and on .the 14th of *October,*while she was in the Delaware, 40 kegs of gunpowder were taken out of the hold, and 36 kegs were put. ? 1 . , . . . , , , *°*r , into the cabin, and stowed close up to the *companion-way,*and *1 1*,,,, some tallow, which had been upon deck, was put into the hold, 7 171 in the place of the powder so taken out, which was done, as the witness understood the captain, to make better stowage. It appeared that the vessel was very fully laden. The powder in the companion way, which leads to the main, or forward cabin, reached to the top which covered the companion. A tier of casks, or hogsheads of gin, were placed against the compan ion, and across the deck, from one side to the other. The companion projects above the deck about a foot, and the *binnacle*was placed on the quarter-deck, near the companion-way, the plank of which, toward the binnacle, was about one inch and an half thick, and that of the binnacle, about an inch thick. The main, or forward cabin, was entirely filled with goods, and there was no access to it, it being separated from the after cabin by a bulk-head, extending across the cabin; and the people descended to the after cabin through a scuttle in the deck. The vessel, while proceeding down the bay, was forced back by a storm as far as *Bombay-Hook Island,*where she came to anchor, in the night of the 16th of *October.*It rained hard during the nightj accompanied with thunder and lightning, and the storm continued until the morning of the 17th of *October,*and about 5 o’clock, P. M. the vessel blew up, and every person on board perished, except *William*Saxton, a passenger, who had never been a voyage before. At the trial, he was called as a witness for the defendants, and a verdict was taken for the plaintiff, subject Jo the opinion of the court, whether, under the circumstances of *452the loss, as stated by this witness, the plaintiff was entitled *to*re- ■ coyer ? In addition to the facts above mentioned, 'the witness-stated that a candle was kept burning in the. binnacle every n‘gbb from the time the vessel left *Philadelphia,*until-, she was .lost. In the night of the 16th of *October,*the watch on deck came downinto the forecastle, where the witness was, and told one of the crew, who was to take the next watch, to go on deck, and take his watch, and to take bare of the candle; that the candle in the binnacle had. burnt down so- far into the socket of .the candlestick, that the socket had become so hot he could riot put another candle into it, and hád. stuck the candle" to the"side of. the, binnacle, it blowing, so hard that he.could'not keep it burning on the outside. The seaman went grumbling on deck, and in about 20 minutes afterwards, .the máte carné to the forecastle and cried out to the men to turn put, all hands, for the bin-nade was on fire, They all-got on deck, and the witness immediately after them.; they looked for- the draw-bucket, but the-deck was só much lumbered that it was one or two minutes before it was found. One of the crew drew a bucket of ■ water, and handed it to the .mate, as the witness believed, who was standing nearest the binnacle; and while the mate was in the act of throwing the water, the explosion took place. The witness added, that when he. first came on deck, there did not appear to be greater light in the binnacle than w-hat a candle would give'; that there was a sail which covered the companionway, and as the mate pulled away the sail, the witness discovered it to be on-firé, and as the mate drew the sail, ánd threw the water, the- witness heard a rumbling, noise, arid was not sensible of. any thing afterwards, until he found himself climbing up the mast of the vessel, which was sinking in the water.. The witn.ess said, it was the constant usage to- bring powder in vesr seis employed , in this trade, and to store it either in the cabin or hold, as was most convenient. -

Slo&son, for the-plaintiff, contended,

contended, 1. That the policy being against fire, covered all accidents by fire, not occasioned by the fraud of the .insured, or his agents.’ *Marshall*
      ***
      **says, there can be no doubt, but that a loss occasioned by fire, which is merely accidental, and not imputable to any fault of the master or mariners, is a less wit-hift'the policy! He does not state, ■whether* by the *English*law, the insurer would be liable, if the *453áre happened by the fault of the master or mariners. Emerigon,* lays down the rule, that the insurers are liable for losses by fire ; but he says that at *Marseilles*they are not liable for a loss by fire, occasioned by the fault of the master or mariners, unless they have, at the same time, .insured against *barratry;*
      † though, in mány other places, he admits the rule .to be otherwise*

In policies of insurance, expressly against *fire*alone, the insurers are answerable for all losses by fire, though occasioned by the negligence and fault of servants, or, in . other words, for every loss, not caused by the fraud of the insured. In losses by fire, it must, in almost every case, be occasioned by carelesness, or inattention, or some fault or neglect of servants ;. and it is the very object of the contract to guard the insured against the consequences of such negligence and faults of others. In the case of *Boyd*v. *Dubois,*
      *‡*
      **tried before Lord *Ellenborough,*there feeing no evidence of the cause of .the fire, the plaintiff had a verdict.

In *Goix*v. *Knox,*
      *§*
      **where the policy was against “ *all risks f*the court said they-should construe the. policy liberally, ■ as applying to all losses, except such as arise from *the f raud of*the insured. The same rule of construction Was adopted in *Radcliff v. The United Ins.*Co.ǁ True, it is a principle in marine insurance, that it does not extend to the acts or faults of the in* sured, as bad stowage, and the like, because they are not perils, insured against. So, in case of deviation, through fault of the master, that puts an end to the contract. In these and other cases, In which the court have held- that the insurer was not liable, it was because the cause of the loss was not a peril insured against. .

2. Fraud or gross negligence on the part of the master or mariners, is *barratry.*The sticking, the candle on the side of the binnacle was an act of wilful and gross negligence.. Sailing out of port, without paying the port duties, has been held an act of negligence amounting to barratry.** Barratry may consist i*n*acts of omission as well as commission. Neglect oi duty, as 0 *y*well as criminal conduct, will amount to barratry. It is not requisite that the master or mariners, should propose any gain to themselves by their neglect or violation of duty.†† Where a person knows his duty, and neglects it, it is that, gross negligence which amounts .to.fraud; • *lata culpa dolo equiparatur,*

*454Then, admitting the negligence to be so gross as to amotíní to barratry, can the plaintiff recover under, a'count, alleging- the loss to be by fire ? A loss by fire, is one of .the perils included in the policy; and the defendant, to defeat the action, sets up ¡another cause of loss, to wit, barratry, which is, also, one of the perils insured against. In *Heyman*v. *Parish,*
      ***
      **this very question arose before Lord *Ellenborough,*who held that where the plaintiff declared for' a loss by the perils of the sea, and the vessel was proved to have been shipwrecked, the plaintiff might recover; though the loss was occasioned by the wilful misconduct of the captain, amounting to barratry the same principle was laid down by this court, in *Gardere*v. *The Columbia Insurance.*Company.†
      *Barratry*is no defence to an action for the loss by the perils of the sea, or by fire.

*T. A. Emmet*and *Hoffman,*contra,

contended, that the insurers were not liable for a-loss Occasioned by the negligence or misconduct- of the master or mariners. Even if barratry was hot'enumera ted among the risks,the insurers would not be liable for a loss in such a case. *Marshall*clearly marks the distinction'between the daw of *England,*and that of other countries, In *France,*and other countries,‡
      *barratry*is a term more-comprehensive than in the *English*Iaw.§ By the law *oí-England,*^ master or mariners amounts to barratry, unless it proceed from a fraudulent purpose.ǁ In the case of *Boyd*v. *Dubois,*the cause of the fife was unknown, and the burden of proving it to have been occasioned by the fault of the master or mariners, rested on the defendant, and no fault being shown, the plaintiff had a verdict.. So, in *Carruthers*v. *Gray,*
      ****
      *where*the ship and goods were seized by the *Russian*government,, the defendant undertook to prove that the seizure was owing to the omission of the captain to. mention the goods insured in the manifest of the cargo. In *Cleveland*v *The Union Insurance*Company,†† the supreme court of *Massachusetts*held that the insurers were not liable for a loss by capture, arising from the negligence of the master in leaving the ship’s register, and- other papers, at the *Isle of France,*an intermediate port in the voyage •insured. Whatever may be the law of other countries, it is settled in *England,*and here, that *barratry*is an act done with a-fraudulent or Criminal intent, or *ex*maleficio.‡‡

In *Dœderer*v. *Del. Ins. Co.*
      *§§*
      **where negligence' seems to be *455suggested as amounting to barratry, the court merely say, that gross negligence is evidence of fraud. If so, it may be rebutted by other evidence, and must go to a jury, who are to decide whether there was fraud or not. It could not be enough, to entitle the plaintiff to recover, to aver a loss by the negligence of the master or mariners.* There must be fraud, or criminality. In *Cook*v. *Com Ins.*Co.† the court define barratry to be every species of fraud, concerning either the ship or cargo, committed by the master, in respect to his trust as master, to the injury of the owner. In *Phyn*v. *The Royal Ex. Ass. Co.*
      *‡*
      **the distinctipn is taken between a case of gross ignorance or negligence, and fraud; and the jury having negatived the fraud, the defendants had a verdict. In *Law*v. *Hollingsworth,*
      *§*
      **the insurers were held discharged, on the ground that there was no pilot on board, which was a breach of the implied warranty in the policy. So, in *Pipon*v. *Cope,*
      *ǁ*
      **Lord *Ellenborough*considered the plaintiff as having been guilty of gross negligence, in suffering repeated acts of smuggling, which was the cause of the seizure and loss, and he could not, therefore, recover. This neglect is to be considered as a breach of the implied warranty on the part of the assured, to use reasonable diligence and care in regard to the property insured.

The word fire, used in the enumeration of the risks in this policy, is subject to the same rules of interpretation as have been settled in regard to the other perils enumerated: and it is a principle, pervading the whole law on this subject, that the insurers are not liable for a loss occasioned by the fault or negligence of the insured, his agents or servants.** In policies of insurance against fire only, certain exceptions are stated with great precision; but in policies of marine insurance, no exceptions or circumstances whatever are stated. The analogy, therefore, between the two kinds of insurance does not hold.

Then, what are the facts in this case ? Two acts of negligence are shown, either of which is sufficient to discharge the defendants ; first, that of the master, in the bad or improper stowage of the *gunpowder,*in a place so exposed to accident; second, that of the mate, and one of the mariners, in putting the lighted can-die against the side of the binnacle. The plaintiff proves a loss by fire; the defendants show negligence and misconduct in the master and mariners. So, in *Boyd*v. *Dubois,*Lord *Ellenborough*said, that if the defendant could show that the hemp was pufoti. *456board in a state liable to effervesce, and it did .effervesce, and generate the fire., that would prove such a negligence of the insured' as would prevent his recovery for the loss.

*Wells,,*in reply,

insisted,- that the plaintiff, *prima■ facie,*was entitled to recover, and that the defendants, to discharge themselves from the loss, must show clearly and satisfactorily, that it had been occasioned by the fault or misconduct of the plaintiff T-&e cases cited by *Marshall,*
      ***
      **to’ show for what acts of the- insuredf or his agents, the insurers were not liable, are all eases of *ignorance or mistake;*but the present case is-án. instance of wilful and palpable carelesness. The- analogy between marine finsurances, and land insurances, against fire only, is, in this respect, complete. The master and mariners, in relation to thé' owner Of the ship, stand in. a similar situation to that of domestic servants in regard to the master of a house. Every ^ event of fire must proceed from the act of God,, as lightning, or from the carelesftess and negligence of those who .have charge of the subject-. If insurers are-not. answerable for losses, by fire, occasioned by the carelesness of servants, then , they áre responsible only where it is caused, by lightning, or the act of .God. But the law has not been laid down to-that extent. Eire is a peril insured against, and where it is the 'proximate cause of loss, it is unnecessary to look for the remote cause. Whenever a fire is caused by the carelesness of servants, masters Or mariners,. the insurer is answerable, whatever may be the degree of that carelesness or neglect. It need not be a wilful act committed. The omission of a'direct and positive duty is equivalent. It is enough that the omission of duty be the cause of loss by one of perils insured against. It can be no defence to say that the negligence was gross, and, therefore, a fraud. Placing the candle against tlie side of the binnacle, and leaving it in that situation, was equally careless as to have thrown it into the companion-way among the kegs of powder. , If it is barratry to set fire' to the vessel, it is barratry to omit the means of preventing it, by acts in the power of the party to perform. , It is said here was bad or improper stowage; but it was proved to be íjie eommion practice, in this trade, to carry po>vder in that manner. The loss was not occasioned by bad stowage,, but the: carelesness of the mariners.

It is said, that gross negligence is only evidence of fraud s *457but! when the fact of gross negligence is established, the conclusion of law irresistibly follows that it is fraud. The plaintiff must aver fraud, not negligence, and when gross negligence is shown, the fraud is established.

*Marsh. on Ins. 494. 1 Burr. 341. 4. Term Rep. 206.*

*Emerig. tom. 1. p.434.*

*Pothier. Trail des Ass. No. 53.*

*3 Campbell's N.P. Rep. 133.*

*1 Johns. Cases 340.*

7 Johns Rep. 46.

*Knight*v. *Cambridge,*8 Mod. 231. S. C. 1 *Str.*561. S. C. 2 Ld. Raym. 1349. See *Valleijo*v. *Wheeler, Cowp. 153.*

*Stamma v. Brown, 2 Str. 4173. 1 Terrm Rep. 259, 330. 7 Term Rep. 505. 3 Johns Rep.*272. 11 *Johns. Rep.*40.

2 *Campb. Rep,*149.

7 *Johns. Rep.*514.

*Marshall on Ins. 513.*

Marshall, 518.

3 *Cowp. Rep. 433.*

*Ib. 142.*

**Mass. *Rep.*

Earl v. Rowcroft, 8 East 126.

*Conay's ed. Marsh. 524 innote.*

*1 Str. 581. 3 Mod. 231. 8East. 135. per Ld Ellenborugh.*

*11 Johns. Rep. 49.*

**7 Term Rep. 505.

*7 Term Rep. 160.*

1 *Campb. N. P. 434.*

*Per Kent, J. Vos*& Graves v. Uniled Ins. Co. 2 Johns. Cases. 180-187.

*Marsh. on Ins. 487, 488. 690 Park on Ins. 62. 6 Term Rep. 656.*

Thompson, Ch. J.,

delivered the opinion of the court. The loss in this case is alleged to have been by fire. The policy contains the usual clause, specifying the perils insured against. The facts in this case briefly are, that the vessel being partly laden with powder, a candle was carelesly put up by the binnacle, which took fire, and communicated to the pówder, and the vessel was blown up, and lost, The question is, whether the underwriters are responsible ? On the part of the assured, it is contended, in the first place, that this was a'loss by barratry; and if not, still, under the general words in the policy, the underwriters are answerable for all losses by fire.

It appears to me imposible to consider the negligence by which the loss was occasioned as amounting to barratry. It would be absurd to suppose .the powder was set on fire by design, and the vessel blown up intentionally, as it must, most probably, have caused the destruction of the whole crew.

It is wmll settled, that an act, to be barratrous, must be done with a fraudulent intent, or *ex maleficio.*Barratry is a fraudulent breach of duty, in respect to the owners. This is the established doctrine, both in the *English*courts, and in our own. (8 *East's Rep.*138. 2 *Caines’ Rep.*71.) We look, in vain, for any one fact in the case, indicating a fraudulent intention. It is, therefore, a loss occasioned by pure negligence.

The next inquiry is, whether such a loss comes within the policy: I think it does not. No adjudged case is to be found directly in point; and all that is to be collected from the elementary writers upon the question, is rather matter of inference. It is laid down by *Marshall, (Marsh, on Ins.*421.,) that a loss occasioned by fire, which is *merely*accidental, and not imputable to any fault of the master or mariners, is a loss within the policy. This is the rule in *England.*The inference necessarily to be drawn from it is, that when the fire is occasioned by the fault of the master or mariners, a loss, occasioned thereby, is not to be borne by the underwriters. In *France*the underwriter is’not held answerable in such case, unless, by the policy, he is liable for barratry. But ip *France,*barratry comprehends *458every fault* either of the master or .mariners, by which a loss is occasi0hed* whether arising from.fraud, negligence, unskilfulñess, ¡pr mere imprudence. */(Marsh.*445.)In England, ■ if the loss could be attributed to barratrous misconduct, the under-, writer would be held liable. It has always been matter, of surprise, that underwriters should insure the ¡good conduct* In any case, of the master and crew, with the appointment of whom they have no concern ; (1. *Term*Rep. 330. 8 *Johns. Rep.*277.;). and they would not be responsible for their conduct were it not. for their express -stipulation. The master and mariners aré not the agents or servants of the Underwriters,, so as to war1 rant the application of'the general, rulés of. law id such cases. The liability of the underwriter for their conduct depends Upon the stipulation in the policy, which embraces only the case of barratry. If, by-.the general rules of law,, underwriters are-responsible for the mere carelesness. and negligence of the master and mariners* it would seem to follow, as a necessary part of the .’samé rule, that they would be liable for their fraudulent misconduct ; and, of course, it- .was entirely unnecessary to insert in the policy any express engagement to become answerable for losses By Barratry. . The very circumstance of assuming the risk of barratrous conduct, affords a strong presumption, that the underwriters are responsible only for :spch misconduct as pmounts to barratry.

Underwriters have no .concern with the competency Or skilful* ness of the master, or crew, '.(..These aré-matters which concern the owners; and any deficiency, in this r.espectf-renders ¡the vessel linseaworthy.’' If a master, from ignorance or unskilfulness, or from any motive not fraudulent, should depart from the proper course of the voyage, and a loss happen thereby, the underwriter would not be liable, byreaspn of the deviation, *(Marsh.*446.) There are many cases of -injury and -losses prising from the fault and negligence of the master'and mariners, where the remedy is against the master or owners, , as by bac} stowage,wet,, and many others. *'(Marsh.*156.).

Although the. insurance is against loss by fire generally, yet this must be understood as relating to fire occasioned by some ' sn.eans pr act for which the underwriters are responsible; The same rule must bé applied tp this risk as. to the,other, enumerated fis-ks in the policy. In-the ease of *Vos & Graves*v. *The United Insurance Company,*(2 *Johns. Cas.*180.,) thp insurance w§§ *459against capture; and, although the vessel was captured, still the underwriters were held not to be responsible, because the capture was occasioned by the misconduct of the master, in sailing towards, with an intention to enter, a blockaded port, *Kent,*Justice, in his opinion, says, such an attempt takes away from the assured his right to recover; for he never can be allowed to indemnify himself upon an innocent party, from the consequences of his own want of skill, or from his negligence or folly. The act of the master must be referred to his principal, who appoints him; and, whenever a loss happens through the master’s fault, unless that fault amounts to barratry, the owner, and not the insurer, must bear it. That the risk of fault in the master (barratry excepted) is not a risk enumerated in the policy; and it would be very unreasonable, that the in-! surer should be holden, beyond his *express*undertaking, for the fault or folly of the master, whom the insured selects and controls. So, in the case of *Cleveland*v. *The Union Insurance*Company, (8 *Mass. Rep.*308.,) in the supreme court of *Massachusetts,*the loss was by capture, occasioned by the negligence of the master, in leaving the ship’s register in *theIsle of*France, and the underwriters were held not to be answerable. *Sedgwick,*justice, said it could not be pretended, that this neglect was a risk expressly insured against, or any risk assumed by the underwriter ; and he goes on to show that the remedy must be against the owner; that he is responsible for all losses arising from the negligence, ignorance, or wilful misconduct of the piaster, that do not amount to barratry. He says, expressly, that the underwriters are not answerable for a loss resulting from the gross negligence or ignorance of the master. The observations made in these cases apply, with great force, to the one now before us, and go to establish the principle, that underwriters are not,responsible for any fault, negligence, or misconduct of the master, or mariners, which does not amount to barratry. And that their liability even for barratry, arises from its being an express stipulation in the policy. *Park,*
      ***
      **(24.,) after enumerating the perils designated in the policy, observes that, although the words are so general, there is a great difference between damage sustained by goods, from injuries on board a ship, and that which occurs from external accident; that the insurer is ¡j^ble for the latter, but, with respect to the former, as they aye *460neglects attributable to the más ter, the ship, and not the íftsui'ér, ought to fee answerable. .

*There*are many losses, occasioned by some of the perils enumerated in the policy, which may happen under circumstances that would not make the underwriters chargeable. These géneral terms are used, in reference to.the established rules of law .• ■ and it is with an eye to those rules, that-they riiust be ex» pounded. Insurance against fire is not the exclusive object of a. marine policy. It is enumerated among the perils,.in reference to the settled principles of marine law-; and we must look to that law, to ascertain the excepted cases. - None of the -observations here made *are intended to.*apply to land insurances-against fire.' There the sole object is indemnity against loss by fire ; and the general and settled rules of law, applicable *to this*subject, must be resorted to in construing such policies.

Upon the whole, therefore, the result of my opinion is, that this cannot be considered a loss by barratry, but by the care* lesness and negligence -of the crew, for whicji the underwriters are not responsible; and this is the opinionof the court. The defendants are, accordingly, entitled to judgment.

Judgment for the defendants.'

6th ed. p. 30