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between the master of the ship and the commander of the capturing ship will support an averment of loss either by capture or barratry."

Every insurance on alien property by a British subject must be understood with this implied exception, that it shall not extend to cover any loss happening during the existence of hostilities between the respective countries of the assured and the assurer. Therefore, an insurance effected in Great Britain, on a French ship, previous to the commencement of hostilities between Great Britain and France, does not cover a loss by British capture. Primâ facie, a capture amounts to a total loss; and if the captors continue to hold possession, or even though a recapture takes place, if the ship be under a disability to complete her voyage, and the adventure be not only retarded but destroyed, the underwriters will be liable for a total loss if notice of abondonment be given when necessary. On the other hand, when a recapture takes place, and the ship is enabled to proceed to her place of destination, although a total loss has happened as far as regards the risk insured, yet if that loss be reduced by subsequent circumstances, the insurer will be liable for a partial loss only, even though notice of *aban- *1160 donment be given; for the insured can only recover an indemnity according to the nature of his case at the time of the action brought. "A capture is an event which may or may not terminate in a total loss; if it continue and terminate in a total loss, the assured will be entitled to his full indemnity; but if the capture be only temporary, and the loss partial, it would be against the spirit as well as the letter of the contract, to hold the underwriter bound to take to the subject-matter insured, and to allow the assured, who stipulates only for an indemnity, to come upon the underwriter for the whole amount of his subscription, while the subject-matter insured subsists in perfect safety."

The underwriters are liable not only for the loss strictly occasioned by the capture but also for salvage, and other charges fairly and bona fide incurred by the insured, for the preservation of his property. But the insured is not entitled to an indemnity in respect of an illegal transaction. Formerly it was a common practice to agree with the captors for ransom of the vessel, and insurers were held liable for claims arising from such agreements. But this practice having been found to

• Arcangelo v. Thompson, 2 Camp. 620. Brandon v. Curling, 4 East, 410. 1 Smith, 85. Furtado v. Rodgers, 3 B. & P. 191. Gamba v. Le Mesurier, 4 East, 407. a Gass v. Withers, 2 Burr. 683. Milles v. Fletcher, Doug. 219. Rotch v. Edie, 6 T. R. 413. Hughes on Ins. 224. M'Iver v. Henderson, 4 M. & S. 576. Hamilton v. Mendez, 2 Burr. 1198. Bainbridge v. Nelson, 10 East, 228. Patterson v. Ritchie, 4 M. & S. 393. Brotherstone v. Barber, 5 M. & S. 418. Parsons r. Scott, 2 Taunt. 363.

e

'Per Bayley, J., in 5 M. & S. 423.

Berens v. Rucker, 1 Bl. 313.

Evidence

of capture.

be impolitic and inconvenient, it was prohibited by statute, whereby ransom agreements are declared to be void.

A sentence of condemnation is not evidence without first proving a capture. Lloyd's books are evidence of a capture; but not of notice of a loss to any person in particular, but may go, coupled with other evidence, to the jury. If an insured declare upon a total loss by capture, and after proving a capture show a recapture, upon which proceedings were had in an Admiralty Court, he cannot recover without proving the proceedings in the Admiralty Court under seal, though he only *1161 claim the amount of the loss sustained by the salvage proceedings and sale.d

What con

rest or de

tention.

4.-Loss by arrests and detention of princes, &c.] By the stitutes a terms of the policy, the insurer undertakes to indemnify the loss by ar- insured against losses occasioned by "arrests or detainments of all kings, princes, and people of what nation, condition, or quality soever." The distinction between arrest of princes, and capture, is that the object of the latter is a prize, and that of the former, detention, with a design to restore the ship or goods detained, or pay the value to the owner. The most frequent cause of detention is an embargo, which is a proclamation or order of the state usually issued in time of war, prohibiting ships departing from or entering into the ports of that state until further order. The word "people," in the policy, means the governing power of the country; therefore, where a ship was seized by a tumultuous rabble, who compelled the captain to sell the cargo at their own price, which was much below its value; it was held, that the insurer was not liable as for a loss occasioned "by arrests and detainments of the people."

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Where ships were seized and unladen by military force acting under the orders of a foreign government, then at peace with this country, but without the fault of the insured; it was held, a loss by detention.s

A policy of insurance on a ship and stores "at and from a port" in a foreign country, in the common form, extends to an embargo laid on by the government of that country in the loading port; and if the embargo continue, the assured may abandon and recover as for a total loss. So, the seizure of a British vessel by one of his Majesty's ships of war, under an apprehension that she belonged to an enemy, is a loss within this branch of the policy. It is no answer for the underwriters to

22 Geo. III, e. 25. 33 Geo. III, c. 66, ss. 35. See Havelock v. Rockwood, 8 T. R. 268. Marshall v. Parker, 2 Camp. 69. Thellusson v. Shedden, 2 N. R. 228. Nesbitt v. Lushington, 4 T. R. 783. Rotch v. Edie, 6 T. R, 413.

' Hagedorn v. Whitmore, 1 Stark. 160.

37, 38. 43 Geo. III, c. 160, ss. 34, Parsons v. Scott, 2 Taunt. 363. Abel v. Potts, 3 Esp. 243.

• Marsh. 506-8.

Mellish v. Andrews, 15 East, 33.

(2 Eng. C. L. 336.)

say that the arrest and detention were *unjustifiable." But the underwriters are not liable for a loss occasioned by the neglect or default of the insured himself; as where a ship was seized as forfeited on account of repeated acts of barratry by the mariners, in carrying smuggled goods on board, through the neglect of the owners; it was held, not to be a loss within the policy; nor will the underwriters be liable unless the loss takes place within the period embraced by the policy; as in the case of a policy on goods, " until discharged and safely landed," the liability of the insurers is discharged, when the goods have reached their port of destination and are lodged in the government warehouse there, although the goods are afterwards confiscated by the government.

In case of a detention of a neutral ship by a foreign power, all the charges consequent thereon must be borne by the underwriter, though such detention may be wrongful. If a suit is commenced in a foreign port against the captain on account of smuggling, whereby the ship is delayed, there being no suit against the ship; it is not a detention for which the underwriters are liable.

To support an averment in a declaration on a policy of insurance on goods, that the ship with the goods on board, when at A. was arrested by the persons exercising the powers of government there, and the goods were then and there by the said persons seized, detained, and confiscated, it is enough to show that the goods were forcibly taken from on board the ship by the officers of government, and never delivered to the consignees, without putting in any sentence of condemnation.f

5.-Loss by barratry.] The term barratry is derived from the Italian word barratrare, to cheat; it includes, in general, every species of fraud, knavery, or criminal misconduct in the master or mariners, by which the freighters or owners are injured; *as by running away with the ship, sinking or desert ing her, embezzling the cargo, smuggling, running the ship on shore, or any other offence whereby the ship or the cargo may be subjected to arrest, detention, loss, or forfeiture.(1) Barratry can only be committed against the owner of the ship and against his consent. The general freighter is considered owner pro hac vice; therefore, A. being the owner of a ship, let it out to B. as freighter, who insured it for the voyage, and the barratrous act, whereby the vessel was lost, was committed with the knowledge of A.; held, that as it was unknown to B., he

Mullett v. Shedden, 13 East, 304.

e Brown v. Carstairs, 3 Camp. 161.

b

What constitues a

loss by

barratry.

Ripon v. Cope, 1 Camp. 434.

#1163

d Salouca v. Johnson, 1 Park. Ins. 125.

• Bradford v. Levy, R. & M. 331. 2 C. & P. 137. (12 Eng. C. L. 58.) 'Carruthers v. Gray, 3 Camp. 142. 15 East, 35.

Per Willes, C. J., in Lockyer, v. Offley, 1 T. R. 259.

(1) (Waters v. The Merchants' Louisville Ins. Co., 11 Peters, 213.)

might recover against the underwriter for a loss by barratry.a So, where the owner of a vessel, fully laden by the freighters, colluded with the captain to run her on shore; held, that this amounted to barratry, although by the terms of a charterparty entered into between such owners and the freighters, the former was entitled to put goods on board during a previous part of the voyage. And on the same principle, if the insurance be made by and in favor of the ship-owner, and the barratrous act is committed with the privity of the freighter, the underwriter is not discharged, unless he can show that the ship-owner also was privy to the barratry.

A deviation, if fraudulent, is barratry; but if done through the ignorance of the captain, or from any other motive not fraudulent, it does not constitute an act of barratry, though it avoids the policy. Barratry may be committed even by dropping anchor, or delaying the voyage for a fraudulent or criminal purpose.t

If a captain, contrary to the instructions of his owner, cruize for and take a prize, and the vessel be afterwards lost in consequence of it, it is an act of barratry, upon which the assured *1164 *may recover against the underwriters, although the captain libelled the prize for the benefit of the owner as well as him

To consti

self.s

It is not essential that the captain should derive or expect to tute barra- derive a benefit from the transaction, in order that it may contry the act stitute barratry, if the act be illegal and done without the conmust be done with-sent of the owner. Where the master sailed out of port, without paying the port duties, whereby the ship was forfeited; it consent of was held to be barratry. So where the master, under general the owner. instructions from his owners to make the best purchases with

out the

a

despatch, 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; it was held to be barratry, although it did not appear that the master would have been benefited by the act, or that he thereby intended any thing else than to make the cheapest and speediest purchases for his employers. Where prisoners of war rose in the ship and confined all the crew except one, who was heard on the deck in conversation with them; it was held, to be evidence of barratry to go to the jury

Vallijo v. Wheeler, Cowp. 143.

b Soares v. Thornton, 1 Moore, 373. (5 Eng. C. L. 29.) Bouteflower v. Wilmer, S. N. P. 953.

Phyn v. Royal Exchange Assurance Company, 7 T. R. 505. by the captain, or a misapprehension as to the best mode of acting tions and carrying them into effect, does not amount to barratry." in Bottomly v. Bovil, 5 B. & C. 212. (11 Eng. C. L. 204.) Ross v. Hunter, 4 T. R. 33.

Roscow v. Corson, 8 Taunt. 684. (4 Eng. C. L. 246.)

s Moss v. Byron, 6 T. R. 379.

Knight v. Cambridge, 1 Stra. 581, cited 8 East, 135.
Earle v. Rowcroft, 8 East, 126.

3 Hucks v. Thornton, Holt, 30. (3 Eng. C. L.13.)

"A mere mistake under his instrucPer Abbott, C. J.,

We have seen that the underwriters cannot be charged with a loss through barratry, if the act be committed with the consent of the owner of the ship; it is further to be observed, that if, through the negligence of the owner of a ship insured, the mariners barratrously carry smuggled goods on board, whereby the ship is seized as forfeited, the underwriters are not liable for the loss. An allegation of loss by barratry is supported. by proof that it had happened by the act of an enemy and by barratry jointly.b

1164

A count on a policy of insurance laying the loss by capture, is sustained by evidence that the ship was captured by a privateer; although this happened from a collusion between the master of the ship and the commander of the privateer, and the "plaintiff might have recovered under a count laying the loss by *1165 the barratry of the master.

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3. Nature and operation of abandonment.

5. Notice of abandonment.

1172

1166

6. Effect of abandonment.

1173

tal loss.

1.-Total loss, within the meaning of the policy, is either What conactual or constructive: an actual loss is where the goods in- stitutes an sured are, before they arrive at their place of destination, either actual toabsolutely annihilated by the perils insured against, or, though subsisting in species, so circumstanced, that it is out of the power of the insured to render them beneficially available. As where hides were so damaged by the perils of the sea that a process of fermentation and putrefaction commenced, whereby their total destruction, before their arrival at the port of destination, became inevitable, but before the destruction was consummated the master of the vessel sold them; the Court of Exchequer Chamber held, that it was an actual total loss.d "If," said Lord Abinger, C. B., in delivering the judgment of the court, "goods once damaged by the perils of the sea, and necessarily landed before the termination of the voyage, are

2

с

Pipon v. Cope, 1 Camp. 434.

Arcangelo v. Thompson, 2 Camp. 620.

Toulmin v. Anderson, 1 Taunt. 227.

Roux v. Salvador, 3 Bing. N. C. 281, (32 Eng. C. L.) (in error,) reversing the decision of the Court of Common Pleas, S. C. 1 Bing. N. C. 526, (27 Eng. C. L. 481,) post, 1167, where it was held to be a constructive total loss. Dyson v. Rowcroft, 3 B. & B. 474.

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