Barratry (admiralty law)

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 has simply destroyed his own property. However, his actions can constitute a crime against any other owners of the ship.[2] Harm to the crew can constitute barratry regardless of who damages the vessel.[3][4] Throughout the 19th century, United States courts struggled to define and understand the law of barratry. Courts have since concluded that negligence alone is not sufficient to qualify as barratry; rather, there must be an intentional act and an intent to defraud.[2] Similarly, deviating from the assigned course does not in and of itself constitute barratry.[4]

Barratry differs from the crime of mutiny, wherein the crew disobeys the captain of the ship, in that the crew remains loyal to the captain, while the captain disobeys the owner of the ship.

The U.S. Supreme Court case Patapsco Insurance Company v. Coulter explored the meaning of barratry in detail.[5] In this case, a ship was provisioned to sail to Gibraltar to sell flour, the profits of which were to have been used 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 court ruled that failure to extinguish 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 the law of barratry applies during periods of civil war and insurrection.[6] In the 1940s, the United States had sold thirteen ships to the nationalist government of the Republic of China. In 1949, during the Chinese Civil War, the communist People's Republic of China took control of mainland China and forced the nationalist government to flee to Taiwan. Six of the ships were at ports in mainland China, while a seventh was at sea. The Republic of China ordered all seven ships to set sail for Taiwan, but none complied, choosing instead to turn themselves over to the Communist government. Although the Republic of China's insurance policy excluded losses due to civil war, insurrection or mutiny, it did cover barratry. The court ruled that the ships had been lost to barratry, not mutiny, as it had been the captains themselves who ordered their crews to hoist the flag of Communist China.

Until 1888, barratry was a capital offense in the United States. Juries routinely refused to convict people of the crime, even if their guilt was obvious, because they did not agree with the death penalty for barratry. That came to a head with the destruction of Mary Celeste in 1885. Mary Celeste had become infamous after being discovered adrift in 1872, in good condition, with no one on board. In 1885, her final owner, Captain G. C. Parker, was accused of barratry for deliberately running her aground and burning her off the coast of Haiti and then making an exorbitant insurance claim for a nonexistent cargo. Despite the 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. The death penalty for barratry was subsequently abolished three years later.[7]

• 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.