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unless he can shew that the ship-owner also was privy to the barratry.

It appears from the preceding remarks, that where the owner of the ship consents to the act done, such act is not barratry". So where the master of the ship is also owner, he cannot commit barratry, because he cannot commit fraud against himself.

And the same rule holds in equity, where the owner having mortgaged the ship, acts as master", for the mortgagor is considered in equity as the owner of the thing mortgaged. But proof of the master having committed barratry is primâ facie sufficient to entitle plaintiff to recover, without shewing negatively that the master was not owner or general freighter. If the underwriter insists on this as a defence, it is incumbent on him to shew that the master was also owner or general freighter.

It will be proper also to remark, that barratry cannot be committed against the owner of the ship with his consent.

It is not necessary that the loss, in consequence of the barratry, should happen in the very act of committing the barratry, it is sufficient if it happen at any time afterwards, and before the voyage insured is completed; but it must happen during the voyage insured, and within the time limited by the policy; for where the master, in the course of the voyage, committed barratry by smuggling, on his own account, by hovering, and running brandy on shore in casks under 60 gallons, and the ship afterwards arrived at the port of destination, and was there moored at anchor 24 hours in safety, after which she was seized by the revenue officers for the smuggling, it was holden, that the underwriter was discharged.

The captain of a ship insured', barratrously carried her out of the course of her voyage, procured her to be condemned in a vice admiralty court, sold her, and delivered her to the purchaser. In an action on the policy, to which the statute of limitations was pleaded, Ld. Ellenborough was of opinion, that the cause of action did not accrue, as the loss did not happen until the master had divested himself of the possession of the ship, by delivering her to the purchaser, and therefore, although the barratrous abandonment of the

n Stamma v. Brown, Str. 1173. Nutt v. Bourdieu, 1 T. R. 328.

o Admitted S. C. and in Ross v. Hun ter, 4 T. R. 33.

p Lewin v. Suasso, Postleth. Dict. vol.
1. p. 147. pér Ld. Hardwicke Ch.

q Lockyer v. Offley, 1 T. R. 251.
r Hibbert v. Martiu, 1 Camp. N. P. C.
539.

voyage, for the purpose of making away with the ship, and fraudulent condemnation had taken place more than six years before the commencement of the action, yet as the sale and delivery were within six years, the plea did not operate

as a bar.

As it is not necessary to aver the fact whereby the loss is occasioned', in the very words of the policy, provided the fact alleged be within the meaning of these words, in a case where, by the policy, the insurance was against the barratry of the master, and the breach assigned in the declaration was, that the ship was lost by the fraud and neglect of the master, the declaration was holden to be good; for barratry imports fraud, and he who commits a fraud may properly be said to be guilty of a neglect, viz. of his duty.

5. Loss by Fire.

Fire is expressly mentioned in the policy as one of the perils against which the underwriters agree to indemnify the assured.

In an action on a policy, where the loss was stated to be by fire, it appeared that the ship in question having been chased by an enemy of superior force, the captain, in order to prevent her from falling into the hands of the enemy, set her on fire. It was holden, that this loss was covered by the policy; Lord Ellenborough C. J. observing, that if the ship is destroyed, it is immaterial whether it is occasioned by a common accident, or by lightning, or by an act done in duty to the state. Nor could it make any difference whether the ship was thus destroyed by third persons, subjects of the king, or by the captain and crew, acting with loyalty Fire was still the causa causans, and the and good faith. loss within the perils insured against.

V. Of total Losses and Abandonment.

pro

A TOTAL loss is of two kinds; one, where the whole perty insured perishes; the other, where the property exists, but the voyage is lost", or the expense of pursuing it exceeds

s Knight v. Cambridge, Ld. Raym.
1349. Str. 581, 8 Mod. 230.
t Gordon v. Rimmington, 1 Camp.
N. P. C. 123.

u If the voyage be defeated, it is the same thing for this purpose as if the ship be lost. Lawrence J. 6 T. R. But see Parsons. Scott,

425.

2 Taunt. 363.

the benefit arising from it. In the latter case, the assured may elect (26) to abandon to the underwriter all right to such part of the property as may be saved, and having given due notice of his intention to do so, the assured will then be entitled to demand a compensation as for a total loss; but if the assured does not in fact abandon (27), or if he omits to give the underwriter notice (28) of his having abandoned, or if, being required by the underwriter to assign over his interest in the property insured, he refuses to do so (29), he will not be entitled to claim as for a total loss.

When the assured has received intelligence of such a loss as entitles him to abandon', it is incumbent on him to make his election to abandon, and to give notice thereof to the underwriter within a reasonable time (30), after receipt of

x Havelock v. Rockwood, 8 T. R. 268. y Mitchell v Edie, 1 T. R. 608. Allmore fully reported by N. Atcheson, wood v. Henckell, Park, 172.

8vo. 1800.

z Barker v. Blakes, 9 East, 283.

(26) The assured is not in any case bound to abandon.

(27) An insurance was effected on some hogsheads of sugar on a voyage from Ostend to Havre. The vessel sailed from Ostend, but was forced on shore, and the cargo damaged. The assured wrote to the underwriters, to inform them of the circumstances, and of the injury which the sugars had sustained. The underwriters in answer desired, "that the assured would do the best with the damaged property." It was holden, that the letter, coupled with the answer, did not amount to an abandonment. Thelluson v. Fletcher, 1 Esp. N. P. C. 73. per Kenyon C. J.

(28) Notice of abandonment is necessary, although the ship and cargo has been sold and converted into money, when the notice of the loss was received. Hodgson v. Blackiston, Park, 172. a. n.

(29) In Havelock v. Rockwood, the insurers offered to settle with the insured, he first making an assignment of one fourth part of the value of the ship for their benefit. The sum insured not amounting to one-fourth, the plaintiff declined making the assignment. The court were of opinion, that, under these circumstances, the assured could not be considered as having abandoned; Kenyon C. J. observing, that the refusal to assign seemed to him to be equivalent to a refusal to abandon; and Grose J. intimating, that there should have been an offer on the part of the assured to assign such part as he was entitled to. See Atcheson's Report, p. 18.

(30) "An abandonment must be made within a reasonable time; and I rather conceive that it is the province of the judge to direct the jury as to what is a reasonable time, under the circumstances." Per Lord Ellenborough C. J. in Anderson v. Royal Exch. Ass.,

the intelligence; otherwise the assured will be considered as having waved his right to abandon, and in case any part of the property insured be saved, he can recover as for a partial loss only.

It may be collected, from the two following cases, under what circumstances the assured may elect to abandon, and claim as for a total loss.

A ship was freighted with fish', and was insured on a voyage from Newfoundland to the port of discharge in Por-' tugal or Spain, without the Streights, or England. During the voyage a violent storm arose, in consequence of which it became necessary that part of the cargo should be thrown overboard, and the ship was so much disabled as to render it necessary for her to go into port to refit; but before she could reach any port, she was captured by the French, who took out nearly the whole of the crew, and sent them into France. The ship having remained eight days in possession of the enemy, but not having been carried into port, nor within the enemies' fleet, was recaptured and brought into Milford Haven. The assured immediately gave notice of their intention to abandon. The remainder of the cargo was spoiled whilst the ship lay at Milford Haven, and before she could be refitted. It was holden, that the loss being in its nature a total loss, at the time when it happened, the assured had a right of election to abandon; that the subsequent title to restitution, arising from the recapture of the ship, which was not in a situation to pursue her voyage, could not take away a right vested in the assured at the time of the capture, and consequently that the assured having given immediate notice of abandonment, were entitled to recover against the insurers for a total loss.

A ship and goods were insured for a voyage from Mountserrat to London'. The ship was taken by an enemy who took out all the crew, part of the cargo (which consisted of sugars) and the rigging. She was afterwards recaptured and carried into New York, where the captain arrived on the 23d of June, and taking possession of her, found that part a Goss v. Withers, 2 Burr. 683. b Milles v. Fletcher, Doug. 230.

7 East, 43. "The assured must make his election speedily, whe ther he will abandon or not. He cannot lie by, and treat the loss as an average loss, and take measures for the recovery of it, without communicating that fact to the underwriters, and letting them know that the property is abandoned to them," Per Lord Kenyon C. J. in Allwood v. Henckell, Park, 172.

of what had been left of the cargo had been washed overboard; that 57 hogsheads of what remained were damaged, and that the ship was in such a state, that she could not be repaired without unloading her entirely. The owners had not any storehouses at New York, where the sugars could have been deposited while the ship was repairing, nor any agent there to advise the captain. No sailors were to be had. There was an embargo on all vessels at New York until the 27th of December, and by the destination of the ship, she was to have arrived at London in July. Thus circumstanced, the captain sold the cargo, and contracted for the sale of the ship, conceiving that he was thereby acting most beneficially for his employers. The captain did not know of the insurance. The assured, upon receiving intelligence of what the captain had done, offered to abandon to the underwriters, and made a demand as for a total loss. An action hav ing been brought to enforce this demand, it was holden, that the assured were entitled to recover as for a total loss; Lord Mansfield C. J. observing, that it had been laid down, "that if the voyage was lost, or not worth pursuing, if the salvage was high, if further expense was necessary, if the insurers would not at all events, undertake to pay that expense, &c. the insured might abandon, notwithstanding a recapture.'

It may be observed, that the preceding cases were cases of peculiar circumstances, that it ought not to be inferred from them, that in the case of a mere capture, followed by a recapture, that the insured may, after the recapture (31) abandon, and demand as for a total loss. The impropriety of making such an inference will appear from the following

case:

A ship, valued at a certain sum, was insured on a voyage from Virginia or Maryland to London; during the voyage, the ship was captured by the French, who took out nearly the whole of the crew, and put in a prize-master to carry her to France. Having remained 17 days in possession of the enemy, she was recaptured by an English man of war, and carried into Plymouth, whence she was brought into

c Hamilton v. Mendez, 2 Burr. 1198. 1 Bl. R. 276.

(31) The assured, upon intelligence of a capture, may abandon, and claim as for a total loss. Admitted per Lord Kenyon C. J. in M'Masters v. Schoolbred, 1 Esp. N. P. C. 237; but if they neglect this opportunity, and afterwards the ship is recovered, the assured can only claim for the loss actually sustained. S. C.

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