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the underwriters will be discharged from all liability in
The term barratry denotes any cheat or fraud or criminal
Where a shipmaster has general instructions to make the best purchases with despatch, he will not be justified thereunder in going into an enemy's settlement to trade (which is permitted by the enemy), even though he could load a cargo more cheaply and speedily there. But if the ship be seized and confiscated for the act in question, it will be barratry (c).
A wilful deviation by the master from the usual and proper course of the voyage, in fraud of the owner, is an instance of barratry (d), but a deviation through mere ignorance or incompetence, or the non-compliance with a statutory regulation as to steering, is not (e). For “unless accompanied with fraud or crime no case of deviation will fall within the true definition of barratry”(f).
A captain or crew, contrary to the owner's instructions, smuggling, cruising for prizes (9), or seizing and selling or otherwise disposing of the ship (), or running the ship ashore without good cause, or delaying the voyage with a fraudulent intention (i), will constitute barratry.
The captain intentionally breaking a blockade without
(6) Per Lord Tenterden in Shore (f) Earle v. Rowcroft, 8 East, 126,
(h) Hibbert v. Martin, 1 Camp.
“ Cases'' (4) at end of this g. 290; Dixon v. Reid, 6 B. & Ald.
though he acted with a view to the benefit of the owners (k). Illegal trading, or any other illegal act followed by confiscation, will be barratry if the trading be carried on or the act be performed without the knowledge or orders of the owners (?).
The loss by barratry must occur during the voyage, otherwise the underwriter will not be liable.
Though barratry be one of the perils insured against, yet if the ship or goods be warranted “free from capture and seizure,” and the ship be seized or detained for a barratrous act during the continuance of the policy, the underwriter will not be liable. For the warranty will be held to apply to seizure or capture from whatever cause, and, therefore, to seizure resulting from barratry (m).
In cases where the owner of a ship acts as master he cannot commit barratry as against himself (n). However, a co-owner acting as master may commit barratry (6). Where the owner has contracted to place the ship entirely under the control of the charterer, any act committed by him in fraud of the charterer will be barratry (p). If the fraud be committed with the owner's consent it will not be an instance of barratry (2); but if committed without his consent, though for his advantage, it will (-). From this it follows that the owner of the cargo cannot recover as for a loss by barratry on account of any act of the master, however criminal, which is approved of by the owner of the ship (s).
The guarantee in the policy against “other perils, losses 8. Other and misfortunes ” will cover a loss similar in kind to those
(k) Goldschmidt v. Whitmore, 3 Taunt. 508; Everth v. Hannam, 6 Taunt. 375.
(1) Earle v. Rowcroft, 8 East, 126; The Australasian Ins. Co. v. Jackson, 33 L. T. 286 (P. C.)
(m) Cory v. Burr, 9 Q. B. D. 463 (C. A.); 51 L. J., Q. B. 468; 47 L. T. 181 ; see " Cases" (6) at end of this $; affirmed by H. L., W.N.
specified in the policy, and arising from any like cause (t). For example, if a crew of a British man-of-war, believing a ship they meet to be hostile, fire on it and sink it, this will be a loss by other perils (u). Again, throwing goods overboard to prevent their seizure by an enemy will be a loss by other perils, for which the underwriters will be
Loss caused If two or more of the perils insured against contribute by two or more of the equally to the loss, the loss may be attributed to either. perils insured But if they do not contribute equally, the loss must be against.
ascribed to whichever of them proximately caused it (y). Thus, supposing a vessel insured is delivered up to an enemy by its master and crew in fraud of the owner, in an action on the policy the loss may be ascribed to either capture or barratry ().
CASES. 1. A ship laden with tobacco and hides during her voyage shipped large quantities of sea-water, the result being that the hides were rendered putrid, and that the putrefaction of the hides had imparted an ill-favour to, and thereby injured, the tobacco. Held, that the damage thus occasioned was a loss by perils of the sea (a).
2. A transport in government service was insured for twelve months, during which period she was ordered into a dry harbour. The harbour's bed was dry and uneven, and, on the tide leaving her, the transport received damage by taking the ground. Held, that this was a loss by perils of the sea (6).
3. Meat was shipped at Hamburg for London, but becoming putrid, solely in consequence of the ship being delayed by stormy weather, was thrown overboard at sea. Held, neither a loss by
(t) Phillips v. Barber, 5 B. & Ald. 161; see “Cases” (7) at end of this $; Boehm v. Combe, 2 M. & S. 172; Jackson v. Union Mar. Ins. Co., L. R., 8 C. P. 572.
(u) Cullen v. Butler, 5 M. & S. 461.
(2) Butler v. Wildman, 3 B. & Ald. 398.
(y) Hagedorn v. Whitmore, 1 Stark. 157; Lirie v. Janson, 12 East, 648;
Dent v. Smith, L. R., 4 Q. B. 414; Ionides v. The Universal Mar. Ass., 32 L. J., C. P. 170.
(z) Arcangelo v. Thompson, 2 Camp. 620; Toulmin v. Anderson, 1 Taunt. 227; Hucks v. Thornton, Holt, 30.
(a) Montoya v. London Ass. Co., 6 Ex. 451.
(6) Fletcher v. Inglis, 2 B. & Al. 315,
perils of the sea, nor within the terms “all other perils, losses and misfortunes,” &c., as contained in the policy (c).
4. The captain of a vessel committed during a voyage barratry by smuggling. Therefore the ship was arrested, but not till she had been moored twenty-four hours in safety at her destined port. Held, the underwriter was not liable, for the loss did not occur during the voyage (d).
5. The B, met the A. under circumstances which rendered it the duty of the B. to port her helm, but she neglected to do so, and the B. was lost. Held, that the conduct of the master of the B. in not porting did not amount to barratry, though it was a wilful default within sect. 299 of the Merchant Shipping Act, 1854 (e).
6. The Rosslyn was insured as against the usual perils, barratry included, but was warranted “ free from capture and seizure, and the consequences of any attempt thereat.” During the continuance of the policy, the master took on board a cargo of tobacco, for the purpose of smuggling it into Spain. He did so for his own benefit, and against the express instructions of the owners, and his conduct was, therefore, barratrous. The ship was seized by the Spanish revenue officers, and taken into Cadiz. Held, that the underwriters were not liable for the costs incurred by the owners in recovering the ship (f).
7. A ship insured having arrived in port and discharged her cargo, was necessarily placed in a graying dock to be repaired. While there she was, through the violence of the wind and weather, thrown over on her side, and, striking the ground, was bilged. Held, that this was a loss within the terms of the policy "all other perils, losses and misfortunes,” &c., and that the underwriters were liable (9).
$ 149. The following losses are not covered by a marine policy Losses not drawn up and executed in the ordinary form :-Inherent covered by the
policy. vice in the thing insured (n); leakage, breakage and bursting (i); ordinary wear and tear, as when a mast is sprung, or a sail split, or a cable damaged by rocks (j');
(c) Taylor v. Dunbar, L. R., 4 C. 1883, p. 79. P. 206.
(9) Phillips v. Barber, 6 B. & (1) Lockyer v. Ofley, 1 T.R. 252. Ald. 161.
(c) Grill v. Gen. Iron Screw Col. (1) Taylor v. Dunbar, L, R., 4 C. liery Co., L. R,, 3 C. P. 476 (S. C.). P. 206.
(f) Cory v. Burr, 9 Q. B. D. 463 (0) Spence v. Union Mar. Ins. (C. A.); 51 L. J., Q. B. 468; 47 Co., L. R., 3 C. P. 427. L. T. 181; affirmed (H. L.), W.N. c) Stevens, Av. 160, 166. N.
Embargo, blockade, &c.
" Collision" clause.
damage caused by rats and worms (k); mortality among animals, unless caused by the violence of the weather (); losses only remotely resulting from the perils insured against (m) ; losses caused by bad stowage or by theft; loss caused by negligence on the part of the insured or his agents (»), as where the shipowner sends a ship insured to sea at a time when it is dangerous to go to sea.
So if the vessel does not complete her voyage through fear of an embargo (c), or if her port of destination be blockaded (p), or if the cargo be seized after being landed in the customary manner (9), the policy will not cover such losses.
If the vessel insured damages another ship by a collision, each vessel has to pay one-half the loss sustained by both (»). Consequently, if the insured vessel has done more damage than she has received, her owners, if they pay the difference, cannot recover it from the underwriters (s). For the proximate cause of the loss, the collision, is not one of the perils insured against.
But if the policy contain a “collision” or “running down" clause, the underwriters will be bound thereby. In the ordinary collision clause the underwriters insure three-fourths of the damages payable in respect of a collision. The remaining one-fourth can be covered by a further insurance. But the costs incurred by the damaged vessel in defending an action will not be covered either by the collision clause, or by the usual sue and labour clause (t).
(k) Hunter v. Potts, 4 Camp. 203 ; (0) Forster v. Christie, 11 East, Lareroni v. Drury, 8 Exch. 166; 205. Rohl v. Parr, i Esp. 445.
(p) Hadkinson v. Robinson, 3 B. (1) Lawrence v. Aberdein, 5 B. & & P. 388. Ald. 107; Gabay v. Lloyd, 3 B. & (4) Brown v. Carstairs, 3 Camp. Cr. 793; see “ Case" at end of
(r) See Bk. I., Ch. XIV. § 89, (m) Powell v. Gudgeon, 5 M. & Sel. 431; De l'aux v. Salvador, 4 (s) De Vaux v. Salvador, 4 Ad. & Ad. & E. 420; Greer v. Poole, 5 El. 420; Greer v. Poole, 5 Q. B.D. Q. B. D. 272; 49 L. J., Q. B. 463; 272; 49 L.J., Q. B. 463; 42 L. T. 42 L. T. 687.
687. (n) Thompson v. Hopper, 6 E. & B. (1) Xenos v. Fox, L. R., 4 C. P. 172; Siordet v. Hall, 4 Bing. 607. 665 (S. C); Thompson v. Reynolds,
7 E. & B. 172.