As to the meaning of this word, or of what constitutes this offence, the cases are in conflict. On the whole, however, we are satisfied that three essentials are necessary to constitute barratry. It must be a wrongful act wrongfully intended; (z) it must be done by the master or officers or crew; and it must be done against the owner. (a)

(t) Hale v. Washington Ins. Co. 2 Story, 176; Peters v. Warren Ins. Co. 8 Sumner, 389, 14 Pet 99; Nelson v. Suffolk Ins. Co. 8 Cush. 477; Matthews v. Howard Ins. Co. 18 Barb. 234; Sherwood v. Gen. Mut. Ins. Co. 1 Blatchf. C. C. 261.

(u) De Vaux v. Salvador, 4 A. & E. 420. See Thompson v. Reynolds, 7 Ellis & B. 172.

(v) Matthews v. Howard Ins. Co. 1 Kern. 9; Gen, Mut. Ins. Co. v. Sherwood, 14 How. 361.

(w) See Naylor v. Palmer, 8 Exch. 739; Palmer v. Naylor, 10 Exch. 382; Nesbitt v. Lushington, 4 T. R. 783; Dean v. Hornby, 3 Ellis & B. 180; McCargo v. New Orleans Ins. Co. 10 Rob. La. 202.

(x) Atlantic Ins. Co. v. Storrow, 6 Paige, 286; Am. Ins. Co. v. Bryan, 1 Hill, 25, 26 Wend. 663. See also De Rothschild v. Royal Mail S. P. Co. 7 Exch.

784. Kent, 8 Comm. 308, states the law to be, that an insurer is not liable for a theft by a person on board the vessel and belonging to it; and he has been followed by Marshall v. Nashville Ins. Co. 1 Humph. 90.

(y) The tortious conversion and sale of insured property by a United States consul at a foreign port, under color of legal proceedings and claim of right, are not a loss within this phrase. Paddock v. Commercial Ins. Co. 2 Allen, 93.

(z) See post, n. (b).

(a) In many cases barratry is defined to be a fraud, cheat, or trick on the part of the captain against the interest of the owners. See Knight v. Cambridge, 1 Stra. 681; Phyn v. Royal Exch. Ass. Co. 7 T. R. 606; Lockyer v. Offley, 1 T. R. 262; Wilcocks v. Union Ins. Co. 2 Binn. 674; Stone v. National Ins. Co. 19 Pick.

If done by the command or connivance of the owner, (b) or even quasi owner, who has the vessel for the time under his control and government, (c) or by a master who is sole owner of the ship, (d) or has an equitable title to her, it is not barratry. (e) Nor is it so, if done by the master in any other capacity, as that * of supercargo, consignee, or factor. (f) But an illegal act done for the intended benefit of the master, without his desire or assent, may be barratry, because they who do it have no right to presume his assent to a violation of law. (g)

Policies frequently provide that the insurers do not insure against barratry, if the insured be owner of the ship. (h) 1 The reason of the provision is this. The master is appointed and employed by the owner and is his agent; and the crew are appointed by him and are his servants. An insurance against barratry, therefore, where the insured is owner of the ship, would insure him against the acts of his own agent or servants. Such a provision, therefore, limits the insurance against barratry, to a loss or injury of a cargo which is not owned by the owner of the ship. (t)

The policy of the law and obvious justice demand, that the owner and his master shall use care and diligence to prevent any misconduct of the crew; and if due care was wanting and might have prevented that misconduct, insurers are not liable for a loss caused by it. (j)

34. In Patapeco Int. Co. v. Coulter, 8 Pet. 222, many of these cases were examined by Mr. Justice Johnson, and the points on which they turned were shown not to warrant the language used. The learned judge seemed to prefer Emerigon's definition, "acting without due fidelity to the owners." (b) Nutt v. Bourdieu, 1 T. R. 323; Thurston v. Col. Ins. Co. 8 Caines, 89; Ward v. Wood, 13 Mass. 689; Everth v. Hannum, 6 Taunt 375.

(c) Pipon v. Cope, 1 Camp. 484.

(d) Taggard v. Loring, 16 Mass. 336; Barry v. La. Ins. Co. 11 Mart La. 630: Marcardier v. Chesapeake Ins. Co. 8 Cranch, 39. But it seems, that a captain who is a part-owner may commit barratry against his other part-owners, and also against a charterer. Jones v. Nicholson, 10 Exch. 28; Strong v. Martin, 1 Dunl. Bell & M. 1246. But see contra, Wilson v. Gen. Ins. Co. 12 Cosh. 360.

(e) Barry v. La. Ins. Co. 11 Mart La. 630.

(f) Emerigon, c. 12, s. 3, Meredith ed. 296. But if the act is done in his capacity of master, it is barratrous, although he may fill other offices. Kendrick v. Delafield, 2 Caines, 67; Cook v. Comm. Ins. Co. 11 Johns. 40; Earle v. Bowcroft, 8 East. 140.

(g) Earle v. Rowcroft, 8 East, 126.

(h) Paradise v. Sun Ins. Co. 6 La. An. 696.

(i) Brown v. Union Ins. Co. 6 Day, 1.

(j) Pipon v. Cope, 1 Camp. 434. See Elton v. Brogden, 2 Stra. 1264.

1 That the offence of barratry may properly be insured against, see Atkinson v. Great Western Ins. Co. 65 N. Y. 533, in which the authorities upon the question as to what constitutes barratry are collated and discussed.