Barratry (admiralty law)

In admiralty law, barratry is an act of gross misconduct committed by a master or crew of a vessel which damages the vessel or its cargo. These activities may include desertion, illegal scuttling, theft of the ship or cargo, and committing any actions which may not be in the shipowner's best interests.

As barratry is misconduct against the shipowner (or demise charterer), only these parties have locus standi to sue in barratry; any affected cargo-owners will normally claim against the shipowner (or demise charterer) for breach of the contract of carriage.[1]

Description

Barratry is usually considered a crime against the ship's owner. Therefore, if the owner himself chooses to wreck the ship, no crime is committed, as the owner simply destroyed his own property, though this can still be considered a crime against any other owners.[2] Also, harm to the crew can qualify as barratry regardless of who damaged the vessel.[3][4] Throughout the 19th century, courts in the United States struggled with defining and understanding the law. Courts have concluded that negligence is not enough to qualify as barratry, but that it instead requires an intentional act and an intent to defraud.[2] Similarly, deviating from the assigned course is also not by itself barratry.[4]

Case law

Patapsco Insurance Company v. Coulter, a U.S. Supreme Court case, explored the meaning of barratry in detail.[5] In the case, a ship was planned to sail to Gibraltar to sell flour, and then use the profits to purchase goods in Marseille. However, at Gibraltar, a fire started aboard ship, destroying the ship and the cargo inside. The plaintiffs argued that the crew could have saved the ship but failed. The courts ruled, however, that failure to stop a fire, even if negligent, does not constitute barratry. Fire was ruled the cause of the cargo's destruction, not barratry and the insurance company was required to pay.[5]

National Union Fire Insurance Co. v. Republic of China et al considered how barratry applies during periods of civil war and insurrection.[6] In the 1940s, the United States sold 13 ships to the Republic of China, the nationalist government that controlled China at the time. During the Chinese Civil War, the communist People's Republic of China took control of mainland China and forced the nationalist Republic of China to Taiwan. When the nationalist government fled to Taiwan in 1949, six of the ships were at ports in mainland China while a seventh was at sea.

The nationalist government ordered all seven ships to Taiwan, but none complied, and all seven turned their ships over to the Communist government. Although the government's insurance policy excluded losses due to civil war, insurrection or mutiny, it did cover barratry. The court ruled that all seven of these ships were a case of barratry, not mutiny, as the captains ordered the ships to raise the Communist flag.

Penalties

Until 1885, barratry was a capital offense in the United States. Juries routinely refused to convict people of the crime, even if their guilt was obvious, as they did not consent to the death penalty for barratry. This came to a head in the destruction of the Mary Celeste in 1885. The Mary Celeste was already infamous since 1872 after being discovered adrift but in good condition with no one on board. This became a high-profile case. In 1885 her last owner, Captain G.C. Parker, was accused of barratry, in that he deliberately ran her aground and burned her, then made an exorbitant insurance claim for a non-existent cargo. Despite this obvious attempt at insurance fraud, and clear evidence of his guilt, five of the twelve jurors refused to convict Parker, to avoid condemning him to death. This led to the death penalty being abolished for this crime three years after the trial.[7]

Barratry in fiction

  • In Tom Clancy's 1984 novel The Hunt for Red October, the character Admiral Foster remarks that the apparent theft of the eponymous Soviet submarine Red October by her Captain Marko Ramius and his officers, with the intention to defect with the submarine to the United States, constitutes barratry and not mutiny.

References

  1. ↑ Modern Maritime Law - Alexa Mandaraka-Shappard
  2. 1 2 Robert Morton Hughes (1901). Handbook of admiralty law. p. 72. Retrieved December 14, 2011.
  3. ↑ "Understanding Barratry". Williams Kherker. Retrieved December 14, 2011.
  4. 1 2 Nicholas Baylies; Sir Thomas Edlyne Tomlins; John Ilderton Burn (1814). A digested index to the modern reports, of the courts of common law, in England (1689–1809) and the United States (1799–1812). pp. 227–228. Retrieved March 2, 2012.
  5. 1 2 Patapsco Insurance Company v. Coulter, 28 U.S. 222, 222 (United States Supreme Court 1830).
  6. ↑ Elihu Lauterpacht; C J Greenwood (1963). International Law Reports. pp. 72–75. Retrieved March 19, 2012. ,
  7. ↑ Paul Collins (December 6, 2011). "Ghost Ship". Slate.com. Retrieved December 6, 2011.
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