Proof of Loss by Fire-by Capture. 393 held not bound to call any of the crew, or to show that he was unable to procure their attendance. Koster v. Reed, 6 B. & C. 19. Where a power to the charterer, for certain causes at his discretion, to retain freight due, is lawfully exercised by him on account of the happening of a sea peril, the freight is not thereby lost by perils of the sea. Steamship Co. v. Bischoff, 7 Ap. Ca. 670, D. P. Inman Proof of loss by fire.] Proof that the ship was burned by the captain to prevent her falling into the hands of the enemy, is evidence of a loss by fire. Gordon v. Rimmington, 1 Camp. 123. So, though the ship was burned by the negligence of the master and mariners, this is a loss by fire. Busk v. R. Exch. Assur. Co., 2 B. & A. 73. But, on an insurance on goods, if the goods are burnt in consequence of being put on board in bad condition, this, being occasioned by the insurer's own act, would not be a loss by fire within the policy. Boyd v. Dubois, 3 Camp. 133. Where a fire insurance was on a ship described as "lying in the V. Docks, with liberty to go into a dry dock and light the boilers once or twice during the currency of the policy;" it was held that the ship was not covered while she was in the river for any other purpose than to pass from the V. Docks to a dry dock, and vice versa. Pearson v. Commercial Union Assur. Co., 1 Ap. Ca. 498, D. P. See also Australian Agricultural Co. v. Saunders, L. R., 10 C. P. 668, Ex. Ch.; Wingate v. Foster, 3 Q. B. D. 582, C. A. Proof of loss by capture.] Where a vessel is driven by a gale of wind on an enemy's coast without damage, and there captured, it is a loss by capture; Green v. Elmslie, Peake, 212; see Ionides v. Universal Marine Ass., ante, p. 391; aliter, if lost by stranding before the capture; Hahn v. Corbett, ante, p. 390. The books at Lloyd's have in some cases been received as evidence of a capture; but, not of notice of the loss to the underwriter. Abel v. Potts, 3 Esp. 242; Fowler v. English, &c. Insur. Co., infra. A foreign sentence of condemnation is not evidence of a capture; but, after other proof of a capture, it is evidence to show the grounds of condemnation. Marshall v. Parker, 2 Camp. 69. If a ship after capture, without abandonment, is restored so as to be in a condition to pursue the voyage insured, and is afterwards lost on another voyage, the plaintiff cannot recover for a total loss by capture. Kulen Kemp v. Vigne, 1 T. R. 304. A re-capture may convert a total into a partial foss. Thellusson v. Shedden, 2 N. R. 228, 230. But, where the insurance was on a ship against those risks only that are excluded by the warranty free from capture, seizure, and detention, and with the stipulation that the insurers should pay a total loss 30 days after news of capture or embargo, and the ship had been detained by an embargo, it was held that the assured might claim a total loss at the expiration of the 30 days, although the ship had been restored to the assured after action brought. Fowler v. English and Scottish Marine Insur. Co., 18 C. B., N. S. 919; 34 L. J., C. P. 253. Proof of a capture by collusion with the captain will support an averment of loss by capture. Arcangelo v. Thompson, 2 Camp. 620. Insurance of a French ship in England during peace will not avail against British capture after war declared with France. Furtado v. Rodgers, 3 B. & P. 191. Whether the words "capture or seizure" occur in the policy or in a warranty excepting them, capture by a foreign force under error is within the words; and the fact that the ship is sunk by the captor's guns does not make it less a capture. Powell v. Hyde, 5 E. & B. 607; 25 L. J., Q. B. 65. So, where the ship is seized and detained for smuggling, amounting to a barratrous act of the master. Cory v. Burr, 9 Q. B. D. 463, C. A. ; 8 Ap. Ca. 393. So, a warranty "free from capture and seizure, and the consequences of any attempt thereat," includes a piratical carrying away of the ship by passengers. Kleinwort v. Shepard, 1 E. & E. 447; 28 L. J., Q. B. 147. So, a seizure of the ship by savages for the purposes of plunder. Johnston v. Hogg, 10 Q. B. D. 432. Loss is total, if the assured can only avert a sale ordered by a prize court, pending an appeal, by giving bail which a prudent uninsured owner would not have given. Stringer v. English Insur. Co., L. R., 4 Q. B. 676; L. R., 5 Q. B. 584, Ex. Ch. As to a breach of neutrality and the evidence thereof, see Hobbs v. Henning, 17 C. B., N. S. 791; 34 L. J., C. P. 117. Proof of loss by restraint of princes, &c.] In an insurance in the usual form against the restraint of all princes, &c., is included a loss consequent on a seizure, under an embargo for a temporary purpose by the government of the country of the assured, that country and the country of the assurer being at peace, and the embargo being unconnected with any hostility existing or expected between the two countries; for the assured is not so identified with the acts of the government of his country as to make their acts his own; Aubert v. Gray, 3 B. & S. 163; 32 L. J., Q. B. 50; Ex. Ch., overruling Conway v. Gray, 10 East, 536; sed quare, whether if the act of seizure were a lawful act under the municipal law of the country of the assured, the seizure would as against him be within the insurance. A wrongful seizure as a slaver, comes within this clause; and notice of abandonment makes the loss total; and, though after long litigation and judgment of restitution the goods still remain in specie, a reasonable man could not be expected to be willing to retain possession, and therefore the loss remains total. Lozano v. Janson, 2 E. & E. 160; 28 L. J., Q. B. 337. A ship was to be loaded with corn at I., under a charter-party, with usual exception of the restraint of princes, &c.; it was proved that no corn had been exported from I. during the vessel's stay, and evidence was given to show that W., where I. was situate, was invaded by the Russians, and their general, G., had refused to allow grain to be exported, and had referred the applicant elsewhere; evidence was also tendered of copies of placards in the name of G., posted on the walls of I., at the period of the ship's arrival, prohibiting the exportation of grain; it was held that such evidence was admissible, and proved a plea of the exception. Bruce v. Nicolopulo, 11 Exch. 129; 24 L. J., Ex. 321. This exception in a bill of lading for goods shipped in a Russian port, on board a Mecklenburg ship, for a port in this country, means at least the enemies of the Duke of Mecklenburg, the sovereign of the carrier. Russell v. Niemann, 17 C. B., N. S. 163; 34 L. J., C. P. 10; The Heinrich, L. R., 3 Adm. 424. The act of closing the ports by an enemy is "a prohibition of export preventing loading." Adamson v. Newcastle, &c. Insur. Assoc., 4 Q. B. D. 462. The hostile detention of goods within a besieged town is a restraint of princes. Rodocanachi v. Elliott, L. R., 8 C. P. 649; L. R., 9 C. P. 518, Ex. Ch. Siege and blockade are within the same principle in this respect. S. C. Geipel v. Smith, L. R., 7 Q. B. 404. Proof of loss by barratry.] Barratry is any fraudulent or criminal conduct by master or mariners against the owner of the ship or goods. Earle v. Rowcroft, 8 East, 126; Cory v. Burr, ante, p. 393. Therefore, the act of the owner is not barratry. Evidence that the person, who was described in the policy and acted as master of the ship, carried her out of her course for fraudulent purposes of his own, is prima facie evidence of barratry without negative proof that he was not the owner. Ross v. Hunter, 4 T. R. 33. Where, however, the whole ship is let, the freighter is owner pro hac vice, and barratry may then be committed, even with the consent of the general Proof of Loss by "Other Perils.”—Stranding. 395 owner. Vallejo v. Wheeler, Cowp. 143; Soares v. Thornton, 7 Taunt. 627. Smuggling by the captain, on his own account, will be evidence of barratry. Lockyer v. Offley, 1 T. R. 252; Cory v. Burr, ante, p. 393. But, if by the gross negligence of the owner, the mariners barratrously carry smuggled goods on board, the underwriters are not liable. Pipon v. Cope, 1 Camp. 434. Proof that prisoners of war rose and confined all the crew and put them on shore except one, who was heard on the deck in conversation with them, is evidence of barratry. Hucks v. Thornton, Holt, N. P. 30. Where a ship is lost through the negligent steering of the master, whereby she was run into and sunk, this is not barratry. Grill v. General Iron Screw Colliery Co., L. R., 3 C. P. 476, Ex. Ch. Proof of loss by "other perils."] The general insurance against "all other perils, losses, and misfortunes," covers cases of marine damage of like nature as those enumerated, e.g. injury caused to a steamer by the explosion of her boiler. W. India and Panama Telegraph Co. v. Home and Colonial Marine Insur. Co., 6 Q. B. D. 51, C. A. It does not cover cases of ordinary wear and tear, or damage resulting from ordinary occurrences of a sea voyage, such as loss of anchors, friction of rocks, leakage, worms, rats, &c., for these are not the extraordinary and fortuitous perils of the sea. 3 Kent, Com. 300; Kay v. Wheeler, L. R., 2 C. P. 302. Of this kind, is the damage done to a ship in harbour by the ordinary flux or reflux of the tide ; Magnus v. Buttemer, 11 C. B. 876; 21 L. J., C. P. 119; unless occasioned by an unusual swell or other accident. Phillips v. Barber, 5 B. & A. 161 ; see ante, p. 391. But, the case of a vessel sunk by an English ship of war firing into her by mistake, was held to be a loss within the general words, though semble, not by "perils of the sea." Cullen v. Butler, 5 M. & S. 416. So, injury occasioned to the cargo by sea-water which flowed down the discharge pipe of the vessel, and through some valves which had been negligently left open, while the cargo was being loaded in harbour, was held to be covered by the clause in the policy against "other perils," if not a loss occasioned by "perils of the sea." Davidson v. Burnand, L. R., 4 C. P. 11. Proof of stranding.] The memorandum, usual in policies on goods, to protect the insurers from claim for loss on certain articles, or from liability to particular average, "unless the ship be stranded," raises the question as to what is "stranding" within the memorandum. If there be a stranding, then the policy applies, although the loss or injury to the excepted articles was not really caused by it. Wells v. Hopwood, 3 B. & Ad. 34, 35, per Ld. Tenterden. Where goods are insured free from average, unless general, or the ship be stranded, before the plaintiff can recover for a partial loss the stranding must be proved. A striking is not sufficient, if it is merely temporary, as for a minute and a half; in order to constitute a stranding, the ship must be stationary for some time. M'Dougle v. R. Exch. Assur. Co., 4 Camp. 283; 4 M. & S. 503. But, where the ship was fixed from 15 to 20 minutes, it was held a stranding. Baker v. Towry, 1 Stark. 436. If a ship is forced ashore, or is driven on a bank and remains for any length of time on the ground, as for 2 hours, this is a stranding without reference to the degree of damage she sustains. Harman v. Vaux, 3 Camp. 431. "A stranding," says Bailey, J., "may be said to take place where a ship takes the ground not in the ordinary course of the navigation, but by reason of some unforeseen accident." Bishop v. Pentland, 7 B. & C. 224; accord. Wells v. Hopwood, 3 B. & Ad. 20, post, p. 396. Where a ship, under the conduct of a pilot, in her course up the river to L. was, against the advice of the master, fastened at the pier of the dock basin by a rope to the shore, and left there, and took the ground, and when the tide left her fell over on her side and bilged; this was held to be a stranding. Carruthers v. Sydebotham, 4 M. & S. 77. So, where in the course of a voyage upon an inland navigation, it became necessary, in order to repair the navigation, to draw off the water, and the ship in consequence, although she had been placed in the most secure situation that could be found, when the water was drawn off, went by accident upon some piles, which were not previously known to be there-it was held a stranding. Rayner v. Godmond, 5 B. & A. 225. So, where in the course of the voyage, the ship was by tempestuous weather forced to take shelter in a harbour, and upon entering it struck upon an anchor, and being brought upon her moorings was found leaky and in danger of sinking, and on that account was hauled with warps higher up the harbour, where she took the ground, and remained fast for half an hour-the stranding was held to be proved. Barrow v. Bell, 4 B. & C. 736. A ship was compelled in the course of her voyage to put into a tidal harbour, and was there moored alongside a quay in the usual place for such ships. The rope with which she was fastened, not being of sufficient length, broke when the tide left the vessel, and she fell over upon her side, and was thereby greatly injured :-held to be a stranding, though occasioned remotely by the negligence of the crew; the falling over was not in the ordinary course of the voyage, but in consequence of an unforeseen accident out of the ordinary course of the voyage, viz., the breaking of the rope. Bishop v. Pentland, 7 B. & C. 219. But, where the taking the ground is in the ordinary course of navigation, and no more than is usual with the vessel on the same voyage, it is not a stranding, though the vessel or goods are injured by it. Hearne v. Edmunds, 1 B. & B. 388. "Where a vessel takes the ground, in the ordinary and usual course of navigation and management in a tide river or harbour, upon the ebbing of the tide or from natural deficiency of water, so that she may float again upon the flow of tide or increase of water, such an event shall not be considered as stranding within the sense of the memorandum. But, where the ground is taken under any extraordinary circumstances of time or place by reason of some unusual or accidental occurrence, such an event shall be considered as a stranding within the meaning of the memorandum." Wells v. Hopwood, 3 B. & Ad. 34, per Ld. Tenterden. Where the vessel, in the course of discharging her cargo in a tidal harbour, on one occasion grounded, not on the mud as was intended, but on a heap of stones, owing to one of her mooring ropes breaking, and the wind blowing at the time from a particular quarter: this was held to be "a stranding." S. C. So, where intentional grounding causes the ship injury, owing to the bottom of the harbour being in an unusual condition. Letchford v. Oldham, 5 Q. B. D. 538, C. A. But, where upon the ebbing of the tide, the vessel took the ground in a tidal harbour in the place where it was intended she should, but in so doing, struck against some hard substance by which two holes were made in her bottom : this was held to be no stranding. Kingsford v. Marshall, 8 Bing. 458. In Corcoran v. Gurney, 1 E. & B. 454; 22 L. J., Q. B. 113, the ship was forced by stress of weather to take a tidal harbour, where, it being low water, she took the ground, and only floated about 8 days in a month at the top of the spring tides, being unable to leave the harbour for 2 months, owing to contrary winds: this was held a stranding, the court adopting the above definition in Wells v. Hopwood, supra. See also De Mattos v. Saunders, L. R., 7 C. P. 570. In order to bring the case within the stranding, mentioned in the memorandum as to partial loss, it must appear that the goods were on board at the time thus, where hides became putrified from leakage, and were sold in the course of the voyage at an intermediate port, and the ship was after Proof of Loss; Total or Partial. 397 wards stranded, it was held that the stranding was not within the condition in the memorandum. Roux v. Salvador, 1 N. C. 526. The stranding must be of the ship itself, and although the insurance includes risk of craft, &c., the stranding of a lighter conveying the goods from the ship will not make the insurers liable. Hoffman v. Marshall, 2 N. C. 383. Proof of loss; total or partial.] A loss may be total or partial, and a total loss may be either actual or constructive. A loss is said to be total if the thing insured is either totally destroyed, or is so damaged as to be worthless and the adventure thereby wholly frustrated. Roux v. Salvador, 3 N. C. 266. It is a constructive total loss if the thing insured, though still existing in fact, is lost for all useful purposes, so as to justify the insured in abandoning all his interest in it to the insurer and claiming as for a total loss. Where the loss is actually total, no abandonment is necessary to found a claim. Roux v. Salvador, post, p. 399; 3 Kent, Com. 318. Thus, stranding is not a total loss, and may not be the foundation of any claim at all; but, if the ship become thereby unnavigable, by reason of the impossibility of getting her afloat, or the great expense of doing so, the loss may be converted into a total one by abandonment. 3 Kent, Com. 323. So, where a ship is on the voyage so damaged that she would cost more to repair so as to fit her to complete the voyage than she would be worth when repaired. Kemp v. Halliday, 6 B. & S. 723; 34 L. J., Q. B. 223; L. R., 1 Q. B. 520; 6 B. & S. 757, Ex. Ch. If a ship and cargo be sunk in deep water, so that the cargo could only be saved by raising the ship, in calculating the expense of raising the ship in order to ascertain whether there is a constructive total loss, the general average contribution to be made by the cargo must be deducted from such expense. S. C. To determine whether there is a constructive total loss of goods injured by perils insured against, the jury must find whether it would cost more to carry on the goods than they were worth, and to find this they must take into account the extra expenses consequent on the perils of the sea, such as drying, landing, warehousing, and re-shipping them, but must not deduct the original bill of lading freight. Farnworth v. Hyde, L. R., 2 C. P. 204, Ex. Ch. Á loss is total and no abandonment is necessary where the ship is lost, or destroyed, or captured, or reduced to a mere wreck or congeries of planks, so as not to exist as a ship for any useful purpose. Cambridge v. Anderton, 2 B. & C. 691; Farnworth v. Hyde, 18 C. B., N. S. 835; 34 L. J., C. P. 207. This last case was reversed in the Ex. Ch. (ubi supra), but that court pronounced no opinion upon the point in question. See also Barker v. Janson, L. R., 3 C. P. 303, 305. So, in the case of goods where they have become putrid, and are sold at an intermediate port, being unfit to be carried further. Roux v. Salvador, 2 N. C. 266, 288, Ex. Ch. In some cases of damage by sea the owners may be justified in selling the ship and claiming for total loss; in such cases the question for the jury will be, whether the sale was justified by necessity, and was for the benefit of all parties, and the net amount of the sale becomes money received for the insurer. Roux v. Salvador, supra; Doyle v. Dallas, 1 M. & Rob. 48; Gardner v. Salvador, Id. 116; vide ante, p. 392. In order to make out a constructive total loss, the plaintiff must show affirmatively, that the cost of repair would have exceeded the value of the ship when repaired: and where the ship is of an exceptional size, the price she would fetch in the market when repaired is not the test of her real value. Grainger v. Martin, 2 B. & S. 456; 31 L. J., Q. B. 186; S. C. in Ex. Ch., 4 B. & S. 9. See also Young v. Turing, 2 M. & Gr. 593. In the case of insurance on freight, where the ship was disabled before she had completed her lading, and the master went to a distant place for repairs, and finding he could not get them done there, sailed on to the |