CHAPTER XIV. EXCEPTIONS CONTINUED ACCIDENTS OF MACHINERYBARRATRY-COLLISION. "Accidents of machinery," etc., Act of part-owner may be barratrous, §§ 203, 204. § 211. "Collision;" conditions under which Collision not presumptively due to § 203. CAUSES of loss, such as "accidents of machinery-of boiler of engine-of steam," are without the common law exception," the act of God." Whether they are included within the phrase "perils of the sea" is not altogether clear. The expression of such exceptions in the bill of lading is perhaps advisable, but certainly it adds no immunity from liability where the carrier has been guilty of negligence. In Czech v. General Steam Navigation Companys it appeared that injury had been done to goods by oil from a by oil from a donkey engine used in raising and lowering the cargo, near which they had been negligently stowed. The exceptions in the bill of lading included "damage by machinery." It was said that the carrier must nevertheless answer for the results of his own negligence. So where it appeared that loss had been occasioned by steam escaping through a crack in the boiler of a steamship 1 DeMoet v. Laraway, 14 Wend. (N. Y.) 225; Central Line of Boats v. Lowe, 50 Ga. 509; Navigation Co. v. Dwyer, 29 Tex. 376; Bulkley v. Naumkeag Steam Cotton Co., 24 How. 386; Hale v. Steam Naviga-. tion Co., 15 Conn. 539. 2 Laurie v. Douglas, 15 M. & W. 746. 3 37 L. J. C. P. 3; S. C., L. R. 3; C. P. 14. and that the boiler had cracked by reason of having been allowed to remain over night filled with water, when not in use and in very cold weather. This the court said was negligence and the carrier was held liable.' Ordinarily, however, the leaking of a boiler by which goods are injured, where negligence by the carrier cannot be shown, is within the exception. The phrase "damage from machinery" will not cover a loss caused by the breaking of tackle used to discharge cargo. The word machinery, it has been said, includes only the machinery by which the vessel is propelled." § 204. The exception, however, does contemplate salvage services rendered necessary by the breaking of such propelling machinery upon the high seas. In the Miranda' the bill of lading included among the excepted perils the phrase "accidents of the machinery." The vessel on which the goods were being transported injured the crank shaft of her engine and was towed into harbor by another vessel belonging to the same owners. The action was for salvage by the owners, master and crew of the Roxana, the latter vessel, against the owners of the cargo of the Miranda, the former vessel. It was held that the plaintiff's were entitled to recover, notwithstanding the fact that the owners of the Roxana were also owners of the Miranda, and that the defendants could not throw off their liability upon the carrier, inas 14 Bing. 607; S. C. 6 L. J. C. P. 137; Buller v. Fisher, Park's Ad. Cas. (K. B.) 183. 2 Moosum v. Brit. India Steam Nav. Co., 8 Cal. W. R. C. R. 35. Here the bill of lading contained the phrase "accident by boilers, steam," etc. In Cox v. Star Nav. Co. (Mit. Mar. Reg.), where damage had been done to a cargo of rice on a voyage from Calcutta to Liverpool, water having found its way into the engineroom by means of a bilge cock having been left unturned and owing to a door being left open, having gone from the engine-room to the part of the vessel where the rice was stowed and damaged it; the question was whether this fell within the excepted perils in the bill of lading, viz., "boilers, steam, machinery, and their appurtenances." It was held that being one of the excepted risks the defendants were not liable. Cited in Leggett on Bills of Lading, p. 183. 3 As where the machinery was put out of order by storm, and steam escaped into the hold. Kelham v. The Kensington, 24 La. Ann. Rep. 100. The Galley of Lorne, Mit. Mar. Reg. Feb. 11, 1876. Cited in Leggett on Bills of Lading, p. 179. 41 L. J. Adm. 82. 4 much as salvage under such circumstances fell within the excepted perils. The exception also covers a loss caused by frost at the time of delivery, when there was a delay due to the breaking of the machinery.' If the machinery appears to have been of good material and frequently inspected and that there was no negligence on the part of the owners, the exception will apply in favor of the ship and its owners. § 205. The term "barratry" has been but seldom defined in connection with bills of lading, but there are in the books numerous cases construing it as occurring in policies of marine insurance. It is to these, therefore, that reference is to be made in determining the meaning of the exception under consideration. Considerable discussion has been had as to the derivation of the word barratry and as to its consequent signification. Following the idea of fraud or deceit which undoubtedly exists in the word, the early cases define the term as including "every species of fraud or knavery in the master or mariners of the ship by which the owners or freighters are injured." Said Lord KENYON: "There must be fraud to constitute barratry." More recent cases seem scarcely to bear out this assertion. In Patapsco Insurance Company v. Coulter, Mr. Justice JOHNSON went carefully over the grounds of the various decisions and in conclusion held that barratry is not confined to fraud. He preferred the definition of Emerigon, which he translated "acting without due fidelity to the owners. Prof. Parsons, in his treatise on Marine Insurance, uses nearly the same language: "Any wrongful act of the master, officers, or crew doue against the owner." A more full definition however would be, the wrongful act wrongfully intended of the master or mariners of a vessel, prejudicial 1 Seaman v. Adler, 37 Fed. Rep. 581 (9 Geo. II.); Valleys v. Wheeler, to and without the knowledge of the owners. The act must be wrongful. It must amount to a fraudulent violation or a wilful abandonment of duty. Mere negligence, unless so gross that wilfulness is to be presumed, is not barratrous. Thus, where a bill of lading excepted "barratry," and the vessel in which the goods were being carried met another vessel under such circumstances that it was the duty of the master and crew of the former to have ported her helm and so have obviated the collision and loss of goods which followed, it was held that the conduct of the master and crew did not bring the loss within the exception.1 5 206. The following acts have been held to be barratrous: attempting to run a blockade, disregarding an embargo,3 carrying contraband of war, taking on board the cargo out of a captured ship of the enemy before it has been condemned by a prize court, resistance of a neutral vessel to the search of a belligerent, an attempt to recapture a vessel illegally taken,? collusion between the master and the captain of a privateer as to the capture of the ship, smuggling, stealing of cargo by mariners (other than petty thieving)," delay for fraudulent pur Grill v. Iron Screw Colliery Co. (Limited), L. R. 3 C. P. 476. 2 Everth v. Hannam, 6 Taunt. 375; Goldschmidt v. Whitmore, 3 ib. 508. But see Vos v. United Ins. Co., 2 Johns. Cas. 180. In Calhoun v. Fitzimmons, 1 Binn. (Pa.) 293, 321, and fol., it was shown that a ship had been seized while nearing the blockaded city of Cadiz. The admiral of the blockading squadron subsequently asked the master, if released, to what port he would go. To which the master made answer, indicating that he would attempt to enter Cadiz. This was held to constitute barratry. • Robertson v. Ewer, 1 T. R. 127. Suckley v. Delafield, 2 Caines, 222. Ward v. Wood, 13 Mass. 539. 9 Stone v. National Ins. Co., 19 Pick. (36 Mass.) 34; American Ins. Co. v. Bryan, 26 Wend. (N. Y.) 563 ; Havelock v. Hancill, 3 T. R. 277; Lockyer v. Offley, ib. 252. In the last case, the ship having been moored at the wharf for twenty-four hours before seizure, under the terms of the policy, the insurer was discharged. Marialegue v. Louisiana Ins. Co., 8 La. Rep. 65. 10 American Ins. Co. v. Dunham, 12 Wend. (N. Y.) 463; Pipon v. Cope, 1 Camp. 434. poses,1 wilfully running the ship ashore, taking the vessel out of her course and selling part of her cargo, going to an enemy's coast to trade, carrying Polynesian laborers without a license with full knowledge of the Act of 35 and 36 Vict., C. 19, forbidding it, using the vessel for privateering purposes contrary to the owners' instructions, notwithstanding the fact that a letter-of-marque had been taken out for the ship by the owners." § 207. Not merely the act but the intention of the master or crew which leads to its commission must be wrongful. In the language of Lord ELLENBOROUGH, " in order to constitute barratry the captain must be proved to have acted against his better judgment." Very many acts therefore, not ordinarily barratrous, become so if done with barratrous intent. Such are the transshipping of the cargo, the neglect to make practicable repairs, the desertion of the vessel by the crew through fear of capture,10 the breaking up of the ceiling and end bows of the ship so that she was thereby much weakened," the taking on board of French refugees in violation of neutrality laws.12 Such also is deviation. Mere deviation is not of itself barratrous.13 To come within the term barratry, it must be without the owners' assent and contrary to the owners' interest. Deviation, even for the sake of pursuing an enemy's ship or to make a capture, will not be barratrous, unless entered upon for the aggrandizement of the master or crew or contrary to the owners' orders. If, however, a barratrous deviation be once entered 1 Roscow v. Corson, 8 Taunt. 684; Ross v. Hunter, 4 T. R. 33. 2 Soares v. Thomson, 7 Taunt. 627. 3 Dixon v. Reid, 5 B. & Ald. 597; S. C. 1 D. & R. 207; Lawton v. Sun Mutual Ins. Co., 2 Cush. (56 Mass.) 500. But see Hibbert v. Martin, 1 Camp. 539. 4 Earle v. Rowcroft, 8 East, 126. 5 Australasian Ins. Co. v. Jackson, 3 Asp. Mar. Law Ca. (N. S.) 26. 6 Moss v. Byrom, 6 T. R. 379. 7 Todd v. Ritchie, 1 Stark. 190. 8 Stuart v. Tennessee M. & F. Ins. Co., 1 Humph. 242. 9 Ib. 10 Messonier v. Union Ins. Co., 1 N. & McC. (S. C.) 155. "Todd v. Ritchie, 1 Stark. 190. 12 Crousillat v. Ball, 4 Dall. 294. 13 Stamma v. Brown, 2 Str. 1173 (16 Geo. II.); Vallego v. Wheeler, 1 Cowper, 143; Phyn v. Royal Exch. Ins. Co., 7 T. R. 505; Thurston v. Columbian Ins. Co., 3 Caines (N. Y.), 89; Wiggin v. Amory, 14 Mass. 1. 14 Wiggin v. Amory, ib. In Hood's Exr's v. Nesbit, 2 Dallas, 137, the law is stated substantially thus: If the master deviate and make a capture for his own private advantage alone, this is barra |