ment as owners usually have. And if owners, or quasi owners, are themselves in default, in not preventing an act which would be barratrous, this is equivalent to their assent. So, if the master. is the sole owner of the ship, he cannot commit barratry against other parties in interest as shippers of goods,2 or as charterers.3 But it seems, that a captain who is a part-owner, may commit barratry against his other part-owners, and also against a charterer.4

If the insurer wishes to avail himself of the fact that the owner was master, he must prove it; and it is not necessary for the insured to prove negatively, that he was not the owner.5 If the master has an equitable title to the vessel, he cannot commit barratry. But a fraudulent title will not prevent his acts from being barratrous.

Nor can the master commit barra

1 Pipon v. Cope, 1 Camp. 434.

2 Taggard v. Loring, 16 Mass. 336; Lewen v. Suasso, Postleth. Dict. art. Assurance, 147; Barry v. La. Ins. Co., 11 Mart. La. 630.

3 Marcardier v. Chesapeake Ins. Co., 8 Cranch, 39.

* Jones v. Nicholson, 10 Exch. 28, 26 Eng. L. & Eq. 542. The vessel in this case, was owned by two brothers, one of whom sailed as captain. A charter-party was entered into with the defendant, and the goods shipped in pursuance thereof were insured by the plaintiff. The captain ran away with the vessel and goods, and the plaintiff paid the loss, on the supposition that the vessel had been lost at sea, but on ascertaining the facts in the case, brought an action against the charterer to recover back the money paid, on the ground that he was not liable for the barratry of the master, he being an owner, but the court held, that the action could not be maintained. Alderson, B., said, that “a sole owner cannot commit barratry, but a part-owner may. If it be not barratry, it may be within the other words of the policy." Platt, B., said: "The loss was consequent on an act of knavery by the captain; and is not that a fraud upon the other owners, who have separate rights to their several shares?" Martin, B., was of opinion, that the loss was within the general terms of the policy. The question came up in Scotland, in 1839, in the case of Strong v. Martin, 1 Dunl. Bell, & Mur. Sess. Cas. 1245. The vessel was owned by two persons as part-owners. One of them acted as captain and committed the alleged act of barratry. The court having desired the opinion of English counsel, that of Sir William Follett was obtained, and in accordance therewith, the innocent part-owner was held entitled to recover to the amount of his interest.

5 Ross v. Hunter, 4 T. R. 33; Steinbach v. Ogden, 3 Caines, 1; Barry v. La. Ins. Co., 11 Mart. La. 202.

6 Barry v. La. Ins. Co., 11 Mart. La. 630.

Steinbach v. Ogden, 3 Caines, 1. In this case, the master ran away with the vessel, procured a fraudulent survey and sale, and became the purchaser. He then entered into a contract of affreightment with the plaintiff, who acted in good faith, and had the goods insured by the defendant. The captain barratrously disposed of these goods, and the insurer was held liable.

try, except as master, and no acts of his as supercargo, consignce, or factor, would be barratrous. But if the owner of the ship be insured, the consent or request of the charterer to the act committed by the master, will not prevent it from being barratrous; 2 and, on the other hand, if a charterer of a ship, sails her and becomes a quasi owner, the master, however, being appointed by the owner, an act by the master which would otherwise be barratrous against the charterer, is not prevented from being so, by the assent or request of the owner.3

As the master is, for many purposes, the agent of the owner, and is appointed by him, many policies provide that they do not insure against barratry, if the insured be owner of the ship.4 Such a provision, of course, generally limits the insurance against barratry to a loss or damage to the cargo, and to such cargo

1 Emerigon, c. 12, s. 3, Meredith's Ed. 296. But, if the act is done by the master in his capacity of master, although he may fill other offices, it will be barratry. Kendrick v. Delafield, 2 Caines, 67. In Cook v. Comm. Ins. Co., 11 Johns. 40, the ship and cargo were owned by the same person. The master was, also, supercargo and consignee, and the barratrous act complained of, was the conversion of part of the cargo to his own use, after the vessel had arrived at her port of destination. The underwriters were held liable, it being considered that the breach of duty was imputable to him as master. See also, on this point, Earle v. Rowcroft, 8 East, 126, 140.

2 Boutflower v. Wilmer, 2 Selw. N. P. 969; M'Intire v. Bowne, 1 Johns. 229. Vallejo v. Wheeler, Cowp. 143, Lofft, 631, 1 Johns. 235, note; Soares v. Thornton, 7 Taunt. 627. We have considered in our previous volume, in what cases the captain will be considered the agent of the general owners, and when of the special. In a case before Lord Ellenborough, Hobbs v. Hannam, 3 Camp. 93, it was held, that where a ship was chartered and the general owner insured his interest, the underwriters were not liable to him for a barratrous act of the master appointed by the charterer. It has also been decided, that if the charterer sails the vessel as captain, he cannot commit an act of barratry against a shipper of goods. Hallet v. Col. Ins. Co., 8 Johns. 272; Taggard v. Loring, 16 Mass. 336.

* In Paradise v. Sun Mut. Ins. Co., 6 La. Ann. 596, there was insurance against barratry of the master, unless the insured were owner of the vessel. The plaintiffs effected an insurance on the freight, which the owner of the vessel had assigned to them as security for advances, in their own names, for the benefit of whom it might concern. It was alleged, that the insurance was effected for their benefit to the amount of their claim, and for the owner for the surplus. The court held that, admitting this to be true, yet the policy being indivisible, and the barratry of the master being a good defence against one of the parties interested, it was good against all. And they were also of the opinion, that all the evidence construed together justified the conclusion, that the policy was intended to cover the owner's interest, and to be held by the assured as security under an assignment, and that the owner was therefore to be regarded as the assured, and the nominal assured as assignees merely, taking only the rights which the owner possessed, and liable for the barratrous acts of the master.

only as is shipped by a party who is not an owner of the ship.1 And the intention is, not to insure an owner against the misconduct of a person selected and appointed by himself. But, if one who hired by charter the whole burden of the ship, put on board his own goods, and received goods on board of other persons, and insured his interest in the freight, this provision or exclusion would not prevent his recovering from the insurers, indemnity for a loss caused by the barratry of the master.

The owner and his master, are always required to guard, with all diligence, against the misconduct of the crew; and for their misdeeds, if such diligence be wanting, the insurers are not liable; 2 but where all proper care and diligence are used, the insurers are then responsible for losses caused by the barratrous acts of any of the officers or crew.3 And insurance against the

1 Brown v. Union Ins. Co., 5 Day, 1.

"Pipon v. Cope, 1 Camp. 434.

The case of Elton v. Brogden, 2 Stra. 1264, is an important one on this point, and has been the subject of much criticism. The vessel was insured from Bristol to Newfoundland with a letter of marque. On the way she took a prize, and returned to England. Another policy was then made out and the ship sailed with express orders from the owners, that if another prize was taken it should be sent back, but that the vessel should proceed on her voyage. Another prize was taken, and the captain gave orders to some of his crew to carry it to Bristol, intending to proceed to Newfoundland in his own vessel, but the crew compelled him to submit and return, and on the way his vessel was captured. The defence was that the insurers were discharged, on the ground of a deviation, but the court held, that this was excused by the force upon the master and therefore was justified on the ground of necessity. The report then goes on to say: "The plaintiff's counsel would have made barratry of it, but the chief justice thought it did not amount to that, as the ship was not run away with in order to defraud the owners." In an appeal from the East Indies, heard before the Lords of the Privy Council at the Cockpit, Sir R. P. Arden, Master of the Rolls, in observing upon the above case, said he thought it must be ill reported in Strange, for, upon the facts stated, there could be no doubt but that the mariners had committed barratry, and he was inclined to think that the policy must have been special, and did not include barratry of the mariners. De Frise v. Stephens, 2 Marsh. Ins. 521, note, Park, Ins. 116, note. Such seems also to have been the opinion of Lord Mansfield in Vallejo v. Wheeler, Cowp. 143. In Scott v. Thompson, 4 B. & P. 181, 186, Sir James Mansfield, C. J., was of the opinion, that the act of the crew did not amount to barratry. Mr. Park says, that the policy could hardly have been a special one, as it would then have been absurd for the plaintiff's counsel to have argued that it was barratrous. And, we may further remark, that if the policy was special, not insuring against barratry, and "defendant's counsel" be inserted in the place of "plaintiff's counsel," the decision then would be, that the act of the crew was not barratrous, being done for the benefit of the owners, as is stated in the report, for we take the law to be, that if there is no insurance against

barratry of the master and crew, includes larcenies and embezzlements of the goods insured, by either the master or any of the crew, excepting only petty thefts and the like.1

In a case where it was alleged that the captain barratrously returned to port, procured the condemnation of the ship, and sold her and afterwards delivered her up to the purchasers, and the condemnation was more than six years before the commencement of the action, but the sale and delivery were within the six years, Lord Ellenborough was of the opinion, that the cause of action did not accrue till the master had divested himself of the possession of the ship, by delivering her up to the purchasers.2

SECTION VII.

OF LOSS BY CAPTURE, ARREST, DETENTION, OR RESTRAINT.

The usual phrase is, "against all captures at sea, or arrests, restraints or detentions, of all kings, princes, and people." This covers captures, detentions, or arrests by public enemies,3 by belligerents, or by the government of which the assured is himself

barratry, the underwriters are not liable for a deviation caused by barratry. So that, whether the policy were special or not, we think, can make no difference.

In Toulmin v. Anderson, 1 Taunt. 227, the crew, aided by some prisoners of war on board, rose, seized the ship and run her ashore. It was held, that the plaintiff would have been entitled to recover on these facts, on the ground of barratry, but the voyage being illegal, the plaintiffs were nonsuited. See Toulmin v. Inglis, 1 Camp. 421; Brown v. Smith, 1 Dow, 349.

1 Am. Ins. Co. v. Bryan, 26 Wend. 563; Stone v. National Ins. Co., 19 Pick. 34. 2 Hibbert v. Martin, 1 Camp. 538.

3 In Levy v. Merrill, 4 Greenl. 180, insurance was effected against the "risks contained in all regular policies of insurance," and the policy further declared, that in case of difficulty arising concerning the adjustment of a loss, it should be settled according to the rules established at Lloyd's in London, or at the regular insurance offices in the United States. It was held, that loss by capture was a peril insured against.

4 Lee v. Boardman, 3 Mass. 238; Rhinelander v. Ins. Co. of Penn., 4 Cranch, 29; Powell v. Hyde, 5 Ellis & B. 607, 34 Eng. L. & Eq. 44; Olivera v. Union Ins. Co., 3 Wheat. 183; Rotch v. Edie, 6 T. R. 413.

a subject,1 if not for a breach of law. The word "people" has been defined to mean "the supreme power; the power of the country," whatever that may be.2 Capture," or its equivalent "seizure," means a taking with intent to keep; "arrest," or "detention," a taking with intent to return the thing taken; as where a ship is arrested by an embargo,5 or stopped for search; 6 or detained in a port by an actual blockade thereof, or, perhaps,

1 As an embargo. Odlin v. Ins. Co. of Penn., 2 Wash. C. C. 312; Lorent v. S. Car. Ins. Co., 1 Nott & McC. 505; M'Bride v. Mar. Ins. Co., 5 Johns. 299; Walden v. Phoenix Ins. Co., id. 310; Ogden v. N. Y. Fire Ins. Co., 10 Johns. 177, 12 id. 25; Page v. Thompson, Park, Ins. 109, n. See also, Flindt v. Scott, 5 Taunt. 674; Anthony v. Moline, id. 711; Schnakoneg v. Andrews, id. 716; Bazett v. Meyer, id. 824.

2 See Simpson v. Charleston F. & M. Ins. Co., Dudley, S. C. 239. It does not cover, therefore, damage done to the cargo by an armed mob. Nesbitt v. Lushington, 4 T. R. 783.

8

3 Emerigon, c. 12, § 30, Meredith's Ed. 420, says: "In capture, the object is to appropriate to oneself the prey: Si commette depredatione con appropriarsi il depredeto. In an arrest of princes, there is a design to liberate subsequently the property arrested, or to pay the value of it." See also, Powell v. Hyde, 5 Ellis & B. 607, 34 Eng. L. & Eq. 44; Black v. Marine Ins. Co., 11 Johns. 287.

* See Emerigon as cited in note supra. But the court, in Mumford v. Phoenix Ins. Co., 7 Johns. 449, speak of an illegal condemnation as a loss under the general peril of arrests and detentions of princes. Lord Ellenborough, in Carruthers v. Gray, 3 Camp. 142, held that an averment that the ship and goods were arrested by persons exercising the powers of government at a certain place, and the goods were there detained and confiscated, was supported by proof that the goods were forcibly taken possession of by the officers of government. In Olivera v. Union Ins. Co., 3 Wheat. 183, Marshall, C. J., speaking of arrest and detainment, said: "Each of these terms implies possession of the thing, by the power which arrests or detains." The seizing of a vessel and turning it into a fire-ship, has been considered a restraint. Green v. Young, 2 Salk. 444, 2 Ld. Raym. 840, per Holt, C. J.

5 Rotch v. Edie, 6 T. R. 413. The vessel in this case was detained in a foreign port by an embargo. See also, notes infra.

$ 1 Magens, 67.

7 In Olivera v. Union Ins. Co., 3 Wheat. 183, this was held to be a restraint, and in Wilson v. United Ins. Co., 14 Johns. 227, a detention. In Richardson v. Maine F. & M. Ins. Co., 6 Mass. 102, 109, Parsons, C. J., said: "In this instrument, I know of no difference between the import of restraint and detention. They are respectively, the effect of superior force, operating directly on the vessel. So long as a ship is under restraint, so long she is detained, and whenever she is detained she is under restraint." Marshall, C. J., on the other hand, in Olivera v. Union Ins. Co., supra, held that a detainment implied possession, while a restraint did not, and that a blockade was, therefore, a restraint. It is, however, a matter of little consequence, since the words are always used together. Saltus v. United Ins. Co., 15 Johns. 523, was a very similar case to that last cited, and it was decided the same way. But in Brewer v. Union Ins.