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2 Barnewall & said the learned judge. So when by the negligence of Busk v. Royal the master and mariners a fire happened, the insurers Ex. Assurance. were held liable, for the loss was occasioned by fire.
If, however, the goods catch fire on board, as where it was said that some hemp effervesced, the underwriters would not be liable, for it would be a loss created by the
assured himself. However, in such a case, tne assured 3 Campb 133, were considered not to have been bound to a disclosure Boyd v. Dubois.
that the hemp was damaged, and as no proof appeared that the mischief happened as stated, the plaintiff has a verdict.
By Lord Mans
“ The ship is lost by the capture, though she be never field in Goss v. Withers, “ condemned at all, nor carried into any port or fleet of 2 Burrow, 694.
" the enemy; and the insurer must pay the value.” An insurance being a contract of indemnity, the insurer becomes entitled to stand in the situation of the assured, and on a recapture or recovery of the ship, after paying the expenses, may have the vessel; and if the owner
recover his property, the insurer is liable to pay the 1. Sir William salvage. He is also compellable to pay a sum expended Blackstone by way of compromise to prevent a capture; but such an Rep. 313, Berens v. Ruc- act must be done bonâ fide, and not in contravention of ker.
the statutes against ransom, 'Any agreement entered 3 Term. Rep.
into, or contracts executed in defiance of those enactSee Park, P.
ments are void, as where a captured vessel was repurchased by the owner.
With respect to the jus postliminii, or right of recovering the vessel on the owner's part, it is observable, that until condemnation, no change of property takes place, and that by the Salvage Acts, if the prize be 'not a ship of war, the right to restitution remains in
perpetuity. Park, p. 113
For the cases and decisions upon the devesting of property, the reader may be referred to the writers cited
in the margin; it being sufficient here to quote the words of Mr. Justice Park, that " whatever rule ought “ to be followed in favour of the owner, against a re
captor or vendee, it can in no way affect the insurance " between the insurer and insured."
“Pirates, Rovers, Thieves." Whether the insurance protects from thieves within the ship is made a question, but the depredations of persons without are expressly guarded against, and so it
Ib. Harford v. has been decided.
Maynard. If in order to fulfil the instructions of his charterparty, the captain hazard the seizure of his vessel by a foreign state, the insurance is not thereby vacated, and so it was in a case where the Portuguese authorities had 4 Taunton, 856,
Sewell v. Royal sequestered a merchant ship illegally.
" Jettisons." The throwing goods overboard to lighten the vessel is called jettison, and on such an occasion there is a general contribution from the freighters, who on their parts are compensated according to their several proportions by their insurers. If a tempest arise in the sea, for salvation of the lives of men it may be lawful for passengers to cast away the merchandizes, &c.; and so a casket was cast out of a barge, and the owner was 12 Coke Rep.
63, Mouse's not allowed to recover damages for the act, though he case. might have had contribution. And it makes no difference that the vessel is in the hands of an enemy when the goods are thrown overboard, for there is a hope of recovering them, and the property is not devested till con- 4 Taunton, 123, demnation.
Price v. Notle. The place of delivery is ordinarily the place of contribution, but if a vessel be compelled to put back into
Park, p. 211, port for repairs, the business of general average may Peters v. Millicertainly be settled there.
The captain of a ship, finding himself about to fall into the hands of the enemy, threw a quantity of dollars into the sea, and it was held to be jettison, being a
throwing overboard for a justifiable cause, and if not 3 Barnewall & strictly jettison, it was within the policy against enemies, Ålderson, 398, and all events came under the general words, “all other
“ losses and misfortunes."
Butler v. Wild
“ Letters of mart and countermart, sürprizals, "takings at sea, arrests, distraints, and detain"ments of all kings, princes, and people, of what
nation, condition, or quality soever. The word “people” means " the ruling power of a country;" and therefore, where a ship was attacked in a piratical manner in Ireland by people unknown to the plaintiff, it was holden, that they could not recover
by stating their complaint to be as of the detainments 4 Term Rep. 783, Nesbitt v.
of " people.” They should have said that pirates had Lushington. plundered them, without more.
The underwriter is liable for every canse of detention,
unless there be fraud in the case. but if the insured Park, 126; navigate against the laws of the countries where his ship 2 Vernon, 176. is loading, or do not pay their customs, he cannot be pro
tected. And if the assured be a subject of the land in which an embargo is enforced, he shall not recover, for
he is considered a party to the acts of his government; 10 East, 536, and he shall not make his failure to perform the voyage Conway o. Gray.
a foundation for his action. However, where the King grants bis licence specially, the case is different, as in
the instance of the native Spaniard domiciled here in 13 East, 332, 1 spariclia v.
time of war between Spain and England, but trading, nevertheless, in a neutral vessel with such licence. And in Conway v. Gray, Lord Ellenborough said: "Where " the insured and insurer are subjects of the same state,
the case will stand upon very different grounds of 10 East, 546. consideration."
Without deciding how the matter would be, if our own sovereign were to lay an embargo upon ships loading here, the Court have decided, that on a policy "at and "from" a port in a foreign country, not at war with us, an assured may recover for detention by the government of that country, the words not being restrained in their import to embargoes by foreign or hostile powers only.
6 Term Rep.
413, liotch v. Barratry of the Master and Mariners.” Any act of the master or of the mariners, which is " of a criminal or fraudulent nature, or which is grossly " negligent, tending to their own benefit, to the prejudice Park, p. 138. " of the owners of the ship, without their consent or pri“ vity, is barratry.”
A captain deviates for his own convenience to take Cowper, 143, brandy and wine in on his own account, without the pri- Wheeler: vity of his owners, this is barratry. So it is if he be guilty of smuggling, though the in- 3 Term Rep.
277, Havelock surance was on the ship engaged in any lawful trade. v. Hancill.
So if the captain think proper to cruize for prizes, and 6 Term Rep. he lose his vessel, the same result will ensue.
379, Moss v.
Byrom, The master was to make the best purchases he could with all possible dispatch; he went into an enemy's settlement, and traded there without instructions; being captured, the ship was condemned as prize for such trading. It was held, that he had been guilty of barratry, 8 East, 126, although his traffic was principally intended for the Earle v. Rowbenefit of his owners.
If the mariners occasion the loss of a ship jointly with „ Taunton, 227, an enemy, they will have committed an act of barratry, Toulmin v. Anand it was considered immaterial whether strangers introduced on board or the English sailors first began to mutiny, if in fact the barratrous act were done by the mariners. And it is no matter if the insured cargo become the enemy's property by condemnation, if the 3 Taunton, 508,
Goldschmid. v. barratrous act of the master have occasioned the mischief. Whitmore.
8 Taunton, 684, Again, where a captain remained much longer in port Roscow v. Corson; and see than was necessary for the discharge of his cargo; de. 127;14 Terpin stroyed the original papers, and changed the ship's desRep. 33, Ross tination, the jury agreed that the delay could not have 1. Hunter; 2 Campb. 620,
arisen upon any other account than that of barratry. Arcangelo v. Thompson ; Holt's Cases, 30, Hucks d. Thornton.
But where the plaintiff's agent knew of an intended
alteraticn in the voyage, the master was held acquitted S. Stranke1 173. of barratry, having acted consistently with his duty, and
the jury in such a case found for the underwriters. Park, 141, n.
“ There must,” said Chief Justice Lee, “be some 6 Taunton, 375, “ breach of trust on the master's part, er maleficio.”
And in order to recover, you must show fraud in the
master. Ryan & Moody, 331, Bradford v. Levy. 2 Strange, 1264,
Where sailors compelled the captain to go out of his Elton v. Brog- course, it was held no barratry, for there was no fraudu
lent running away with the ship, and this decision has i New Rep.
been approved of by Lord Chief Justice Mansfield. 7 Term Rep. The ignorance of the master will not constitute this 505, Phyu v.
act, because there is no fraudulent purpose of his own, Royal Ex. As
And gross negligence and supineness on the part of the i Campb. 434,
owners, as suffering smuggled goods to be carried on Pipon r. Cope. board, though the ship be barratrously dealt with,
will discharge the underwriters. So, where the master 3 Campb. 93, only obeys the orders of the charterer, and engages in
an illegal trade which occasions the condemnation of his vessel, the insurers will not be liable.
A ship went into a port during an embargo, and was 7 Taunton, 462, allowed to return, or discharge her cargo. She dis Schroder 2.
charged it, and stayed there eighteen months, when Thompson.
the embargo ceased, and was lost in her homeward
voyage. The underwriters on ship were held liable. i Term Rep. It is desirable to attend to the circumstanice that bar323, Nutto.
ratry can only be committed against the ship-owner. Cowper, 143, Vallejo v.
You may insure against barratry, but it must be an act Wheeler.
Hobbs v, Hanan.