4. Loss by Barratry (21). The original meaning of the term " barratry" is to be collected from the Italian language, and is, according to Dufresne's Glossary, (verbum barratria,)" fraus, dolus, qui fit in contractibus et venditionibus." He does not apply it in any marine sense, or with reference to the particular relation of masters and owners. In that sense, however, in which it is particularly used, as applied to subjects of British marine insurance, in the earliest reported case', which we find on the subject, it is considered as being precisely tantamount to fraud, in the particular relation which subsists between master, mariners, and owners, being such by which a loss may happen to the subject matter insured. And as no limitation is put upon the term " fraud," in that case, the court must be understood as holding, that fraud and barratry were in effect words of co-extensive import; that is, that barratry included every species of fraud in the relation of the master to his owners, by which the subject matter insured might be endangered. 66 In conformity with this opinion, Willes, J. in giving the judgment of the court in Lockyer v. Offley, 1 T. R. 252. defines barratry as including every species of fraud or knavery of the master of the ship, by which the freighters or owners (the freighters in that case were owners pro tempore) are injured." Barratry may be committed either by a wilful deviation", in fraud of the owner, by smuggling, by running away with ■ Per Ld. Ellenborough, C. J. delivering the judgment of the court in Earle v. Rowcroft, 8 East, 134. t Knight v. Cambridge, Str. 581. u Valicjo v. Wheeler, Cowp. 143. x 1 T. R. 252. (21) “ It is extraordinary that this species of loss, occasioned by the misconduct of the master, selected and appointed as he is by the owners themselves, and liable to be dismissed by them only, should ever have been made the subject of insurance; and it is the more so, as it has an impolitic tendency to enable the master and owners, by a fraudulent and secret contrivance and understanding between them, to throw the ill success of an illegal adventure, of which the benefit, if successful, would have belonged solely to themselves, upon the underwriters. So, however, it is, that this description of loss has, from the earliest times, held its place as a subject of indemnity in British policies of insurance." Per Lord Ellenborough, C. J. delivering the judgment of the court in Earle v. Rowcroft, 8 East, 134. the ship, by sinking (22) or deserting her, or by defeating or delaying the voyage (23) with a criminal intent. If by reason of these, or other similar acts, the subject matter insured is detained, lost, or forfeited, the assured will be entitled to recover against the underwriter for a loss by barratry; and such acts being in violation of that duty which the masters and mariners owe to the ship-owners, the circumstance of the master or mariners conceiving that they were acting for the benefit of the owners will not vary the case. Hence where the master', under letters of marque, which for want of a certificate were not valid, (and which had been put on board by the owners with a view to encourage seamen to enter, and without any intention of their being used for the purpose of cruizing), had cruized for and taken a prize, in consequence whereof the vessel was lost; it was holden to be an act of barratry, although the master had libelled the prize in a court of admiralty, for the benefit of the owners as well as himself. Neither is it necessary, in order to constitute barratry, that the master should derive, or even intend to derive, any. benefit from the act done (24). Hence, where the master sailed out of port", without paying the port duties, whereby the ship was forfeited, it was holden to be barratry. So where the master, under general instructions from his owners to make the best purchases, with dispatch, 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; this illegal act, unauthorised by the ship-owners, was holden to be barratry, although it did not appear that the master would have been benefitted by the act, or that he intended thereby any thing y Moss v. Byrom, 6 T. R. 379. z Knight v. Cambridge, as cited in s East, 135, 136. a Earle v. Rowcroft, 8. East, 126. (22) For the penal consequences attending the wilful destruction of ships, see stat. 1 Ann. stat. 2. c. 9. s. 4.; 4. G. 1. c. 12.; 11 G. 1. c. 29. s. 6, 7. As to the mode and place of trial for this offence, see stat. 28 H. 8. c. 15.; 43 G. 3. c. 79. Ireland, and c. 113. England. (23) "Even dropping anchor with a fraudulent intent is barratry." Per Buller, J. in Ross v. Hunter, 4 T. R. 38. (24) But in some cases the circumstance of private benefit ac. cruing to the master may be evidence of fraud in him, more than to make the cheapest and speediest purchases for his employers (25). In order, however, to constitute barratry, it is essentially necessary, that there should be fraud. Hence, a simple deviation, through the ignorance of the master, without fraud on his part, although it avoids the policy, will not amount to barratry (26). It is to be observed, that barratry, in the sense in which it is used in our policies, cannot be committed by any persons except masters or mariners, nor against any persons except the owners of the ship; but this term comprehends not only absolute owners, but owners pro hâc nice only, as general freighters. Hence, if A. be the owner of a ship, and let it out to B. as freighter, who insures it for the voyage, and the barratrous act, whereby the vessel is lost, is committed with the knowledge of A., yet if it be unknown to B. he may recover against the underwriter for a loss by barratry. So where the insurance is made by and in favour of the b Phyn v. Royal Exch. Ass. Comp., e Nutt v. Bourdieu, 1 T. R. 323. see Hobbs v. Hannam, 3 Camp. N. chartered ship be lost, by means of the captain engaging in an illegal trade, in obedience to the orders of the charterer, this is not a loss by barratry for which ship-owner can recover against the underwriters. (25) It was contended in this case, on the part of the defendant, that if the conduct of the master, although criminal in respect of the state, were, in his opinion, likely to advance the owner's interest, and intended by him to do so, it would not be barratry; but to this the court said they could not assent, for it was not for him to judge in cases not entrusted to his discretion; or to suppose that he was not breaking the trust reposed in him, but acting meritoriously, when he endeavoured to advance the interest of his owners by means which the law forbids, and which his owners also must be taken to have forbidden, not only from what ought to be, and therefore must be, presumed to have been their own sense of public duty, but also from a consideration of the risk and loss likely to follow from the use of such means. 66 (26) Barratry must be some breach of trust in the master, ex maleficio." Per Lee, C. J. in Stamma v. Brown, as cited by Law. rence, J. from a MSS. note in 7 T. R. 508. "No case of deviation, unless it be accompanied with fraud or crime, is within the true definition of barratry." Per Ellenborough, C. J. in Earle v. Rowcroft, 8 East, 139. But where the deviation is such as amounts to barratry, the underwriter cannot insist on the deviation as a ground of objection against the right of the assured to recover. ship-owner, and the barratrous act is committed with the privity of the freighter, the underwriter is not discharged, 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 master1, 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, Lord Ellenborough was of e Boutflower v. Wilmer, London Sit- f Stamma v. Brown, Str. 1173. Nutt h Lewin v. Suasso, Postleth. Dict. vol. i Lockyer v. Offley, 1 T. R. 251. 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 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 and good faith. Fire was still the causa causans, and the loss within the perils insured against. If a fire arises on board a ship from the damaged quality of the goods insured, the underwriters are not liable; but if the loss is not so occasioned, the policy will not be vitiated by the non-disclosure of the condition of the goods to the underwriter". Knight v. Cambridge, Lord Raym. n Boyd v. Dubois, 3 Camp. N. P. C. 1349. Str. 581. 8 Mod. 230. m Gordon v. Rimmington, 1 Camp. N. P. C. 123. 133. |