The Massachusetts spy, and Worcester County advertiser. [volume] ([Worcester, Mass.]) 1825-1831, 1831-08-03
SINGULAR LAW CASE


A most extraordinary case has recently been
decided in the Supreme Court of New York,
Chief Justice Jones presiding. An action'on
an open policy of insurance was brought by
Garcia & Co VS.. the American Insurance Com
pany in New York, to recover ten thousand
dollars, Chat being the greatest amount taken
on any one shipment for the loss of cargo Of
the brig Katharine, which consisted Of sugar,
cigars, and specie, on her homeward passage
from Havana 20 New York. 1t was proved, on
the trial, that the plaintiffs shipped on board
said brig 4O4 boxes of sugar, 100000 cigars,
and $4,000 dollars in specie, put up in four box
es. The clerk, who counted and delivered the
specie on board the brig, just at the moment
she was about sailing, testified to the fact To
put the matter beyond all doubt, as to the de-
livery, he swore that when delivering the spe-
Gle, one of the boxes fell on the deck, and the
cover flew off, whereby the specie was exposed
to the whole crew, in Hhich statement he was
confirmed by several of the hands on board.
The brig started, and was lost near the Frying
Pan Shoals; the crew abandoned her on the
18th of August, 1880, after making several in
effectual attempts to save the specie, which was
slowed in the run. The Captain and crew took
to the boat, landed on the beach at Bald Head,
and proceeded to the light honse, where the
crew suggested to the pilots the idea of going
out for the vessel, informing them of the amount
of specie on board. The next day the captain
and crew proceeded to Smithville, where pro-
test was duly entered, and then sailed in the
New Hanover for New York. On the 22d of
August the pilots found the wreck of the Kath-
arne, and boarded her and after many efforts
succeeded on the Both liz towing her to the
beach, where they were enabled TO procure the
boxes from the run, which were supposed 10
contain the specie. On opening them, which
was done in the presence OF several persons
they were found to contain nothing but old
types and shot. The boxes were carried TO
Smithville and thence to Wilmington and de-
posted in the Wilmington Bank, from whence
they were sent to New York The mate did
not recognize the boxes as the same shipped in
the Havana, and the Judge was of opinion that
the specie had not been taken from the boxes
and types aud shot substituted, but that the
boxes had been changed. The types resembled
those for the Spanish market. There is no
printing office in Smithville, and consequently
it was admitted the types could not have been
obtained there.
That there was fraud committed cannot
be doubted, but when or by whom, it is impos-
sible to say. The Judge said in his charge to
the jury, {" when look at the Havana, the ev-
idence convinccs me the fraud was not com
mtted there; when look at North Carolina,
the evidence is alike convncing-whcn look
at the voyage, | am satisfied the fraud was not
committed there"
The Judge told the jury that the question to
be tried was, who perpetrated the fraud. If
you find that the types were substituted at the
Havana before the boxes were taken on board
the policy never attached on the specie andIf
the rest of the cargo, unless you shall find that
the vessel was lost by the fraudulent deviation
of the Captain in which case you must find
for the defendants. For the Captain was the
owner ofthe vessel, and he could not commitbar-
ratry as barratry can only be committed against
the owner. This rule has been considered hard
by the shippers but it is the law of the land.
Our own Courts have so adjudlcated 1t. 1t was
decided by the Supreme Cont to be the law af-
ter learned discussion of the question and we
must be governed by the rule. If, therefore,
you come to the conclusion that the deviation
was intentional, and fraudulent, you must find
for the defendants. If the specie was actually
put on board the vessel at the Havana, no i'm
putation of fraud can rest on the shippers. They
would not ship tho specie to be lost. The
change must have taken place either shortly
before the shipping, or on the voyage, or be-
tween the time Of the desertlon of the vessel
and the time of her being boarded by Mr. Cas-
sldy, on the list September. If the fraud was
committed during tho voyage, and the master
had any agency in it, the plaintiffs cannot re.
cover. If the substitution of the types for the
silver by the agency of the mate and crew, was
without the knowledge of the master, it might
be question how far the underwriters are ia
BILE, but in that case it could not, think, have
been committed without the knowledge of the
Captain, and it is useless therefore to agitate
the question.
If the fraud was committed after the vessel
was deserted by The crew, and neither they nor
tho plaintiff had any agency in it, then the un-
derwriters are liable for the whole cargo.
The jury retired and after remaining out
about hours, returned into court with YER
dict for the plaintiffs for the whole amount
olaimed.-Provideace Journal.