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2 Barnewall & Busk v. Royal


Ex. Assurance.

3 Campb 133, Boyd v. Dubois.

By Lord Mansfield in Goss v. Withers,

2 Burrow, 694.

1. Sir William
Rep. 313,
Berens v. Ruc-


3 Term. Rep.


See Park, p.


Park, p. 113


said the learned judge. So when by the negligence of the master and mariners a fire happened, the insurers 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 were considered not to have been bound to a disclosure that the hemp was damaged, and as no proof appeared that the mischief happened as stated, the plaintiff has a verdict.


"The ship is lost by the capture, though she be never "condemned at all, nor carried into any port or fleet of "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 salvage. He is also compellable to pay a sum expended by way of compromise to prevent a capture; but such an act must be done bonâ fide, and not in contravention of the statutes against ransom. Any agreement entered into, or contracts executed in defiance of those enactments 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.

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 recaptor 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 has been decided.

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 sequestered a merchant ship illegally.


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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 not allowed to recover damages for the act, though he 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.

12 Coke Rep. 63, Mouse's


Price v. Noble.

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 strictly jettison, it was within the policy against enemies, Alderson, 398, and all events came under the general words, "all other "losses and misfortunes."

3 Barnewall &

Butler v. Wildman.

Term Rep. 783, Nesbitt v. Lushington.

"Letters of mart and countermart, surprizals, "takings at sea, arrests, distraints, and detain"ments of all kings, princes, and people, of what nation, condition, or quality soever.”

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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 of "people." They should have said that pirates had plundered them, without more.

The underwriter is liable for every canse of detention, unless there be fraud in the case. But if the insured 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

Park, 126;

10 East, 536, Conway v. Gray.

13 East, 332, U sparicha v. Noble.

10 East, 546.

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; and he shall not make his failure to perform the voyage a foundation for his action. However, where the King grants his licence specially, the case is different, as in the instance of the native Spaniard domiciled here in 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 "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.

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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

6 Term Rep. 413, Rotch v. Edie.

"negligent, tending to their own benefit, to the prejudice Park, p. 138. "of the owners of the ship, without their consent or pri

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Cowper, 143,
Vallejo v.

A captain deviates for his own convenience to take 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. surance was on the ship engaged in any lawful trade.

So if the captain think proper to cruize for prizes, and he lose his vessel, the same result will ensue.

277, Havelock v. Hancill.

6 Term Rep. 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.


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Taunton, 227, Toulmin v. An


If the mariners occasion the loss of a ship jointly with an enemy, they will have committed an act of barratry, and 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 barratrous act of the master have occasioned the mischief. Whitmore.

3 Taunton, 508,

Goldschmid v.

8 Taunton, 684, Roscow v.

Corson; and see

1 Term Rep. 127; 4 Term

Again, where a captain remained much longer in port than was necessary for the discharge of his cargo, destroyed the original papers, and changed the ship's desRep. 33, Ross tination, the jury agreed that the delay could not have arisen upon any other account than that of barratry. 2 Campb. 620, Arcangelo v. Thompson; Holt's Cases, 30, Hucks v. Thornton.

1. Hunter;

But where the plaintiff's agent knew of an intended alteration in the voyage, the master was held acquitted 2 Strange,1173, of barratry, having acted consistently with his duty, and the jury in such a case found for the underwriters.

Stamma v.


Park, 141, n.

"There must," said Chief Justice Lee, "be some 6 Taunton, 375, breach of trust on the master's part, ex maleficio." And in order to recover, you must show fraud in the

Everth v. Han


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Moody, 331, Bradford v. Levy.

2 Strange, 1264, Elton v. Brog


1 New Rep. 186.

7 Term Rep. 505, Phyn v. Royal Ex. As


1 Campb. 434, Pipont. Cope.

3 Campb. 93, Hobbs v. Han


Schroder v.

Where sailors compelled the captain to go out of his course, it was held no barratry, for there was no fraudulent running away with the ship, and this decision has been approved of by Lord Chief Justice Mansfield.

The ignorance of the master will not constitute this act, because there is no fraudulent purpose of his own. And gross negligence and supineness on the part of the owners, as suffering smuggled goods to be carried on board, though the ship be barratrously dealt with, will discharge the underwriters. So, where the master 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 discharged it, and stayed there eighteen months, when the embargo ceased, and was lost in her homeward voyage. The underwriters on ship were held liable.


1 Term Rep. 323, Nutt . Bourdien;

Cowper, 143,
Vallejo v.


It is desirable to attend to the circumstance that barratry can only be committed against the ship-owner. You may insure against barratry, but it must be an act

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