Hence, where the master sailed out of port (y), without paying the port duties, whereby the ship was forfeited, it was holden to be barratry. So where the master (2), under general instructions from his owners to make the best purchases, with dispatch, went into an enemy's port and traded there, on account of which illegal traffic, the vessel insured was seized by a king's ship, and afterwards condemned; this illegal act, unauthorized by the ship-owners, was holden to be barratry, although it did not appear that the master would have been benefited by the act, or that he intended thereby anything more than to make the cheapest and speediest purchases for his employers (21). In order (a), however, to constitute barratry, it is essentially necessary that there should be fraud. Hence, a simple deviation, through the ignorance of the master, without fraud on his part, although it avoids the policy, will not amount to barratry (22). It is to be observed, that barratry, in the sense in which it is used in our policies, cannot be committed by any persons except masters or mariners, nor against any persons except the owners of the ship (b); but this term comprehends not only absolute owners, but owners pro hâc vice only, as general freighters. Hence, if A. be the owner of a ship (c), and let it out (y) Knight v. Cambridge, as cited in 8 East, 135, 136. (z) Earle v. Rowcroft, 8 East, 126. (b) Nutt v. Bourdieu, 1 T. R. 323. But see Hobbs v. Hannam, 3 Campb. 94, where it was held, that if a chartered ship be lost, by means of the captain engaging in an illegal trade, in obedience to the orders of the charterer, this is not a loss by barratry for which ship-owner can recover against the underwriters. (21) It was contended in this case, on the part of the defendant, that if the conduct of the master, although criminal in respect of the state, were, in his opinion, likely to advance the owner's interest, and intended by him to do so, it would not be barratry; but to this the court said they could not assent, for it was not for him to judge in cases not intrusted to his discretion; or to suppose that he was not breaking the trust reposed in him, but acting meritoriously, when he endeavoured to advance the interest of his owners by means which the law forbids, and which his owners also must be taken to have forbidden, not only from what ought to be, and therefore must be presumed to have been, their own sense of public duty, but also, from a consideration of the risk and loss likely to follow from the use of such means. (22) "Barratry must be some breach of trust in the master, ex maleficio." Per Lee, C. J., in Stamma v. Brown, as cited by Lawrence, J., from a MS. note in 7 T. R. 508. "No case of deviation, unless it be accompanied with fraud or crime, is within the true definition of barratry." Per Ellenborough, C. J., in Earle v. Rowcroft, 8 East, 139. But where the deviation is such as amounts to barratry, the underwriter cannot insist on the deviation as a ground of objection against the right of the assured to recover. to B. as freighter, who insures it for the voyage, and the barratrous act, whereby the vessel is lost, is committed with the knowledge of A.; yet if it be unknown to B., he may recover against the underwriter for a loss by barratry. So where the insurance is made by and in favour of the ship-owner, and the barratrous act is committed with the privity of the freighter, the underwriter is not discharged (d), unless he can show that the ship-owner also was privy to the barratry. It appears from the preceding remarks, that where the owner of the ship consents to the act done, such act is not barratry (e). So where the master of the ship is also owner (ƒ), he cannot commit barratry, because he cannot commit fraud against himself. And the same rule holds in equity, where the owner, having mortgaged the ship, acts as master (g), for the mortgagor is considered in equity as the owner of the thing mortgaged. But proof of the master having committed barratry is prima facie sufficient to entitle plaintiff to recover, without showing negatively that the master was not owner or general freighter. If the underwriter insists on this as a defence, it is incumbent on him to show that the master was also owner or general freighter. Barratry cannot be committed against the owner of the ship with his consent. It is not necessary that the loss, in consequence of the barratry, should happen in the very act of committing the barratry: it is sufficient if it happen at any time afterwards, and before the voyage insured is completed; but it must happen during the voyage insured, and within the time limited by the policy; for where the master, in the course of the voyage, committed barratry by smuggling, on his own account, by hovering, and running brandy on shore in casks under sixty gallons, and the ship afterwards arrived at the port of destination, and was there moored at anchor twentyfour hours in safety, after which she was seized by the revenue officers for the smuggling; it was holden (h), that the underwriter was discharged. The captain of a ship insured, barratrously carried her out of the course of her voyage, procured her to be condemned in a vice-admiralty court, sold her, and delivered her to the purchaser. In an action on the policy, to which the statute of (i) limitations was pleaded, Lord Ellenborough was of opinion, that the cause of action did not accrue, as the loss did not happen, until the master had divested himself of the possession of the ship, by delivering her to the purchaser; and therefore, although the barratrous abandonment of the voyage, for the purpose of making away with the ship, and fraudulent condemnation, had taken place more than six years before the commencement of the action, yet as (d) Boutflower v. Wilmer, London Sittings after T. T. 21 Geo. II., coram Lee, C. J., MSS. (e) Stamma v. Brown, Str. 1173; Nutt v. Bourdieu, 1 T. R. 323. (f) Admitted S. C., and in Ross v. Hunter, 4 T. R. 33. (g) Lewin v. Suasso, Postleth. Dict. vol. 1, p. 147, per Lord Hardwicke, Ch. (h) Lockyer v. Offley, I T. R. 252. (i) Hibbert v. Martin, 1 Campb. 539. the sale and delivery were within six years, the plea did not operate as a bar. As it is not necessary to aver the fact whereby the loss is occasioned (k), in the very words of the policy, provided the fact alleged be within the meaning of these words; in a case where, by the policy, the insurance was against the barratry of the master, and the breach assigned in the declaration was, that the ship was lost by the fraud and neglect of the master, the declaration was holden to be good: for barratry imports fraud, and he who commits a fraud may properly be said to be guilty of neglect, viz. of his duty. 5. Loss by Fire. Fire is expressly mentioned in the policy, as one of the perils against which the underwriters agree to indemnify the assured. In an action on a policy, where the loss was stated to be by fire, it appeared that the ship in question having been chased by an enemy of superior force, the captain, in order to prevent her from falling into the hands of the enemy, set her on fire. It was holden (1), that this loss was covered by the policy; Lord Ellenborough, C. J., observing, that if the ship is destroyed, it is immaterial whether it is occasioned by a common accident, or by lightning, or by an act done in duty to the state. Nor could it make any difference whether the ship was thus destroyed by third persons, subjects of the king, or by the captain and crew, acting with loyalty and good faith. Fire was still the causa causans, and the loss within the perils insured against. If a fire arises on board a ship from the damaged quality of the goods insured, the underwriters are not liable; but if the loss is not so occasioned, the policy will not be vitiated by the non-disclosure of the condition of the goods to the underwriter (m). Upon a policy on ship by which the underwriters insured against fire and barratry of the master and mariners, it was holden (n), that the underwriters were liable for a loss by fire, occasioned by the negligence of the master and mariners. 6. By other Losses. These general words were not the immediate subject of judicial construction in our courts, until the case of Cullen v. Butler, 5 M. & S. 461. There the master and crew of a British ship, believing the ship insured to be an enemy's ship about to attack them, fired at her and sunk her with the goods on board. This loss was spe (k) Knight v. Cambridge, Lord Raym. 1349; Str. 581; 3 Mod. 230. (1) Gordon v. Rimmington, 1 Campb. 73. (m) Boyd v. Dubois, 3 Campb. 133. cially set forth in the second count of the declaration; and the court held, that the plaintiff was entitled to recover upon it, inasmuch as it fell within the general and comprehensive words in the policy subjoined to the particular causes of loss, viz. "All other perils, losses, and misfortunes, which had or should come to the damage of the goods and ship or any part thereof." In an action on a policy of insurance, from Spain to Cuba and the Spanish Main, the declaration stated the insurance to be on dollars. The interest was averred to be in a subject of the King of Spain. It stated that hostilities had commenced between Spain and South America. The loss was stated as follows: namely, that while the ship was on her voyage, an armed vessel proceeded from a ship acting under the authority of persons exercising the powers of government in South America, made up to the ship on board of which the dollars were, in order to attack her; and that the master, in order to prevent the dollars from falling into their hands, threw them overboard. It then stated, that the armed boat did attack the ship, and capture her. To this declaration there was a general demurrer; and the question was, whether this was a loss within the policy. It was holden (0), that it was; the court observing, that this was a general demurrer. Taking all the circumstances together, it must be considered that the master acted properly in throwing the dollars overboard. If the defendant had intended to dispute that, he should have gone to trial. They said they considered that this was a loss by jettison; which meant any throwing overboard ex justá causâ. All the foreign writers agree that the master may set fire to a ship to prevent its falling into an enemy's hands. This case fell within the same principle. The dollars would have been useful to the enemy in the prosecution of the war. It was the master's duty to prevent the enemy from seizing them. The circumstance of the insurer not being a subject of Spain could make no difference. They said that this might also be considered as a loss by enemies, and would also fall within the general words "other losses." Where, in an action on a policy of insurance on a ship in the usual form, for twelve months, at sea and in port, the loss averred was as follows: that the ship having arrived at the harbour of St. J., and discharged her cargo, it became necessary to place her, and she was accordingly placed, in a graving-dock, there to be repaired, and near to a certain wharf in the graving-dock; and that whilst she was there, by the violence of the wind and weather, she was thrown over on her side, whereby she struck the ground with great violence and was bilged, &c. It was holden (p), that this was a loss within the general words of the policy, "all other perils, losses, and misfortunes, &c." for which the underwriters were liable. Held also, that the above facts, with the additional circumstance (0) Butler v. Wildman, 3 B. & A. 398. (p) Phillips and another v. Barber, 5 B. & A. 161. See Devaux v. J'Anson, 5 Bingh. N. C. 519. of there being two or three feet water in the graving-dock when the accident happened, did not amount to a loss by perils of the sea. An underwriter is liable (q) for losses occurring in the transhipment of goods from the ship to the place of landing, where such transhipment is in the usual course of the voyage, although such risk be not specially mentioned in the policy. V. Of Total Losses and Abandonment. A TOTAL loss is of two kinds: one, where the whole property insured perishes; the other, where the property exists, but the voyage is lost (r), or the expense of pursuing it exceeds the benefit arising from it. In the latter case, the assured may elect (23) to abandon to the underwriter all right to such part of the property as may be saved, and having given due notice of his intention to do so, the assured will then be entitled to demand a compensation as for a total loss; but if the assured does not in fact abandon (24), or if he omits to give the underwriter notice (25) of his having abandoned, or if, being required by the underwriter to assign over his interest in the property insured, he refuses to do so (s) (26), he (q) Stewart v. Bell, 5 B. & A. 238. Insurance from London to Jamaica. (r) If the voyage be defeated, it is the same thing for this purpose as if the ship be lost. Lawrence, J., 6 T. R. 425. But see Parsons v. Scott, 2 Taunt. 363, and Anderson v. Wallis, 3 Campb. 440; 2 (8) Havelock v. Rockwood, 8 T. R. 268, more fully reported by N. Atcheson, 8vo. 1800. 15. (23) The assured is not in any case bound to abandon. See 15 East, (24) An assurance was effected on some hogsheads of sugar on a voyage from Ostend to Havre. The vessel sailed from Ostend, but was forced on shore, and the cargo damaged. The assured wrote to the underwriters, to inform them of the circumstances, and of the injury which the sugars had sustained. The underwriters, in answer, desired "that the assured would do the best with the damaged property." It was holden, that the letter, coupled with the answer, did not amount to abandonment. Thelluson v. Fletcher, 1 Esp. N. P. C. 73, per Kenyon, C. J. (25) Notice of abandonment is necessary, although the ship and cargo have been sold and converted into money, when the notice of the loss was received. Hodgson v. Blackiston, Park, 281, n. (26) In Havelock v. Rockwood, the insurers offer to settle with the assured, he first making an assignment of one fourth part of the value of |