US SUPREME COURT DECISIONS

Where a technical total loss is sought to be maintained upon the mere ground of deterioration of the cargo at an intermediate port to a moiety of its value, all the deterioration of memorandum articles must be excluded from the estimate. Therefore, in a cargo of a mixed character, no abandonment for mere deterioration in value during the voyage can be valid unless the damage on the nonmemorandum articles exceed a moiety of the value of the whole cargo, including the memorandum articles.

Where the general owner of a ship retains the possession, command, and navigation of the same and contracts to carry a cargo on freight for the voyage, the charter party is to be considered as a mere affreightment sounding in covenant, and the freighter is not clothed with the character or legal responsibility of ownership.

In such case, the general owner is also owner for the voyage.

Consequently, if he be master of the vessel, he is incapable of committing barratry.

Barratry is an act committed by the master or mariners of a ship for some unlawful or fraudulent purpose contrary to their duty to their owner whereby the latter sustains an injury.

The facts of this case were thus stated by STORY, J. in delivering the opinion of the Court.

This is an action on a policy of insurance, underwritten by the defendants on 29 October, 1806, for $31,000, upon any kind of lawful goods on board the brig Betsey, whereof Alexander McDougal was then chanrobles.com-red

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master, on a voyage at and from New York to Nantes. McDougal was the general owner of the brig, and on 1 October, 1806, by a charter party of affreightment made with the plaintiff, granted and to freight let to the plaintiff the said brig, excepting and reserving her cabin for the use of the master and mate and for accommodation of passengers, as therein mentioned, and so much room in the hold as might be necessary for the mariners and storage of water, wood, provisions, and cables, for the voyage from New York to Nantes, and McDougal, by the same instrument covenanted to man, victual, and navigate the brig at his own charge during the voyage and to receive on board any shipment of goods, not contraband, which the plaintiff should tender at the side of the ship or within reach of her tackles at New York and to stow and secure the same and proceed therewith to Nantes and there discharge the same. The passengers on board the brig were to be at the joint expense of the parties, and the passage money was to be equally divided between them. The other clauses in the charter party are not material to be stated except that the plaintiff covenanted to pay the stipulated freight and demurrage. The cargo, put on board by the plaintiff, was of the invoice value of $29,889, of which $7,439 was in memorandum articles. The brig sailed on the voyage under the command of McDougal on 9 November, 1806, and during the voyage was compelled by stress of weather and other accidents to bear away for the West Indies, and arrived at the port of St. Johns, in Antigua, on 22 December. There the master made application to the vice admiralty for a survey, &c., and such proceedings were had upon his application that the cargo was landed, and by a decretal order of the court of 31 January, 1807, the same was ordered to be sold for the benefit of all concerned, reserving the question as to freight. Under this decree the cargo was accordingly sold, and the sales completed before 28 March, 1807, and the net proceeds of the whole of the plaintiff's property amounted to $13,767. The net proceeds of the memorandum articles, included in the same sum, were $6,863.30. The whole proceeds were paid over to an agent appointed by McDougal, and the freight for the whole voyage was allowed him by the admiralty upon a report chanrobles.com-red

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of commissioners, to whom the question was referred. The brig was repaired at Antigua within a reasonable time at the expense of one sixth only of her value, and capable of performing the voyage with the original cargo, but McDougal voluntarily abandoned the voyage at Antigua for his own emolument and advantage. Of the cargo, 99 bags of coffee were spoiled and thrown overboard, and the residue greatly damaged by the perils of the seas, and the whole cargo, including the memorandum articles, sustained a damage during the voyage exceeding a moiety of its original value. On 4 Feb. 1807 and within a reasonable time after receiving information of the loss, the plaintiff abandoned the whole cargo to the underwriters.

The declaration contained two counts for a total loss -- 1st by the perils of the seas and 2d by barratry of the master. At the trial, the court below, upon the facts and circumstances above stated, held that the plaintiff was not entitled to recover as for a total loss of the cargo insured, including the memorandum articles, and the cause came up to this Court upon a bill of exceptions to that opinion. chanrobles.com-red

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