1818. Hughes V. Union Ins. Company. jury to determine, whether the risk was increased by taking the jackasses on board, and directed them to find for the plaintiffs, unless the risk was thereby increased. The jury found for the plaintiffs; and this court reversed the judgment rendered on that verdict, because the taking in the jackasses was not within the permission of the policy. It is perfectly clear, that the case of the Maryland Insurance Company v. Le Roy and others, differs materially from this. In that case, articles were taken on board which encumbered the deck of the vessel, and which were not within the liberty reserved in the policy. In that case too, the insured traded, and the delay was considerable and unnecessary; the risk, if not increased, might be, and certainly was, varied. The judge, therefore, ought not to have left it to the jury on the single point of increase of risk by taking in the jackasses. Although the risk might not be thereby increased, the unauthorized delay and unauthorized trading during that delay, connected with taking on board unauthorized articles, discharged the underwriters according to the settled principles of law; and the court does not say in that case that these circumstances were immaterial or without influence. The court does not feel itself constrained by the decision in the Maryland Insurance Company v. Le Roy et al. to determine that in this case also, which differs from that in several important circumstances, the underwriters are dis charged. The judgment is reversed, and the cause remanded, with directions to issue a venire facias de novo. a In the case of Urquhart v. Barnard, it was held by the English court of C. B. that if a ship has liberty to touch at a port, it is no deviation to take in merchandize during her allowed stay there, if she does not by means thereof exceed the period allowed for her remaining there. And that if liberty be given to touch at a port, the contract not defining for what purpose, but a communication having been made to the underwriter, that the ship was to touch for a purpose of trade, it shall be intended as a liberty to touch for that purpose. 1 Taunt. 450. Liberty to touch at a Judgment reversed." port for any purpose whatever, includes liberty to touch for the purpose of taking on board part of the goods insured. Violet v. Allnutt, 2 Taunt. 419. Under a liberty to touch and stay at all ports for all purposes whatsoever, the stay must be for some purpose connected with the furtherance of the adventure. Whether the purpose is within the scope of the policy, is a question for the court. The policy not limiting the time of stay, whether a ship has staid a reasonable time for the purpose, is purely a question for the jury. Langhorn v. Alnutt, 4 Taunt. 511. 1818. Hughes V. Union Ins. To entitle the plaintiff to recover in an action on a policy of insurance, the loss must be occasioned by one of the perils insured against. The insured cannot recover for a loss by barratry, unless the barratry produced the loss; but it is immaterial whether the loss, so produced, occurred during the continuance of the barratry or afterwards. ERROR to the circuit court for the district of Maryland. This was an action on a policy of Insurance upon the schooner Humming Bird, at and from NewYork to Port au Prince, and at and from thence back to New-York. The policy was dated on the 21st of July, 1810, and the vessel sailed on the voyage insured on the 5th of that month. About the 5th of August following, she arrived at Port au Prince, and was there stripped of her sails and a considerable part of her rigging by one James Gillespie, to whom she had been chartered for the voyage. This was done with the knowledge and acquiescence of the master, either for the purpose of procuring the loss of the vessel, or of fitting up another vessel, which Gillespie wished to despatch to the United States. On her return voyage she was sunk by Gillespie, but whether with or without the knowledge of the master, did not appear. The plaintiff insisted at the trial, that as barratry had been committed at Port au Prince, the subsequent loss, however occasioned, was to be ascribed to that cause, and he was entitled to recover. But the court directed the jury that, admitting the act at Port au Prince to be barratry, the plaintiff could not recover on account of it, unless the jury should be of opinion that it produced the loss. Under this direction, to which the plaintiff excepted, the jury found a verdict for the defendants. 1818. Swan V. Union Ins. Company. Mr. Harper, for the plaintiff, argued that the loss, Feb. 12th. though not immediately consequent upon the act of barratry, was a ground of recovery; the insured ought to be protected against the incidental consequences of that act; and could not else have the benefit of his contract of indemnity. In the case of Vallejo v. Wheeler, the smuggling which was the barratrous act, was not the immediate and direct cause of the loss: yet the insured recovered, because the loss was sustained in consequence of the alteration of the voyage. Sergeant Marshall deduces from that case this corrolary, that if barratry be once committed, every subsequent loss or damage may be ascribed to that cause; and the underwriters are liable for it as for a loss by a barratry," Mr. Winder, contra, contended that it did not appear that the act of the master at Port au Prince was barratrous, or any thing more than gross neglect, or that he had any interest in the consequences of his supposed misconduct. The case of Vallejo v. a Cowp. 143. 2 Marshall on Ins. 528. VOL. III. 23 b Id. 531. 1818. Swan V. Wheeler does not support the inference of Marshall, and his opinion is not authority any further than it is borne out by the case. It has been doubted by the Company. most enlightened jurists whether barratry ought to be the subject of insurance, and certainly it ought not to be extended beyond its direct and immediate conse Union Ins. Feb. 18th. The insured cannot recover quences. Mr. Chief Justice MARSHALL delivered the opinion of the court, and after stating the facts, proceeded as follows: The general principle unquestionably is, that to for a loss by entitle the plaintiff to recover, the loss must be occa barratry, un less the barra- sioned by one of the perils in the policy. This is try produced the loss; but it is immaterial equally the rule of reason and the rule of law. But whether the ced occurred tinuance of the terwards. loss so produ- the plaintiff contends that the case of Vallejo v. during the con- Wheeler denies the application of this principle to a barratry, or af loss in a case in which barratry has been committed. This court is not of that opinion. The case of Vallejo v. Wheeler declares it to be immaterial whether the loss occurred during the continuance of the barratry, or afterwards, not whether the loss was produced by the barratry. In that case the court was of opinion that the loss was produced by the barratry. a The cases on the subject of barratry are collected in Condy's edition of Marshall on Insurance, vol. II. p. 515. et infra, and note (84) p. 534. Judgment affirmed." To which add the following: Where the owner of a vessel chartered her to the master for a certain period of time, the master covenanting to |