seizure and the consequences of any attempt thereat." The ship was seized by the Spanish revenue authorities for smuggling, which was, in effect, admitted to be the barratrous act of the master. The loss was held to be within the exception, although, if there had been no exception, it might (and according to Lord BLACKBURN clearly would) have been treated as a loss by barratry. In Heyman v. Parish (1809), 2 Camp. 149, 11 R. R. 688, it was held that a loss might be recovered as a loss by "perils of the sea," although the shipwreck which caused the loss was itself caused by the conduct of those on board amounting to barratry.

Barratry can only be committed against the owner of the ship, and without his consent. Nutt v. Bourdieu (1786), 1 T. R. 323, 1 R. R. 211.

But where the owner of a ship by his contract has placed the vessel for a time entirely under the control of the freighter, the latter becomes pro hâc vice the owner, so that any act of the general owner done in fraud of the freighter is an act of barratry. Vallejo v. Wheeler, Cowp. 153; s. c. Lofft, 645; Soares v. Thornton (1817), 7 Taunt. 629, 18 R. R. 615. On the other hand, where the owner has delegated the dominion of the ship to the charterer, and the master, by the orders of the charterer, has engaged in an illegal trade, that is not barratry as against the general owner; for in such a case the charterer is considered the agent of the general owner, and the orders given by the charterer are treated as if given by the general owner himself. Hobbs v. Hannam (1811), 3 Camp. 93, 13 R. R. 764.

The acts of a master who is part-owner of the ship may be barratrous against another part-owner: Jones v. Nicholson (1854), 10 Ex. 28, 23 L. J. Ex. 330. And those of a master who is mortgagor of the ship may be barratrous against the mortgagee, who for this purpose is in the position of a co-owner. Small v. United Kingdom Marine Mutual Association (C. A. 1897), 2 Q. B. 311, 66 L. J. Q. B. 736.

AMERICAN NOTES.

The principal case is cited in 1 Parsons on Marine Insurance, p. 567; 2 Beach on Insurance, sect. 967.

"But if the master, knowing the inevitable danger of capture if he proceed on his voyage, should notwithstanding continue it, and expose the vessel to certain seizure, this will be a loss not arising from perils insured against, but from a criminal breach of the duty he owes to his owners, which is barratry." Richardson v. Marine Ins. Co., 6 Massachusetts, 117; 4 Am. Dec. 92, citing the principal case.

"It is essential to the offence of barratry that the act complained of should be either criminal or fraudulent on the part of the master." Wiggin v. Amory, 14 Massachusetts, 5; 7 Am. Dec. 175, citing the principal case, and observing; "The only point which seemed to be unsettled before that case was whether

No. 79. Earle v. Rowcroft. Notes.

an act of the master, although criminal, was barratry, unless he intended by it to injure or defraud his owners. It seems extraordinary that such a doubt should have existed; and yet we find it contended at so late a period, that an illicit trading with the enemy was not barratry; because the master had in view the benefit of his owners, rather than his own. To settle this point only, was thought to require an elaborate argument of the Lord Chief Justice; but he is careful to prevent any inference being drawn against the principle, before so well settled, that without fraud or crime there can be no barratry; and he closes his argument with a caution not to infer from it that simple deviations can be turned into barratry, to the prejudice of underwriters; for he says there is no case in which barratry can exist without fraud or crime.

"We think, after this view of the various decisions in England, there can be no longer a doubt of the state of the law there on this subject; and there is no reason why the same doctrine should not be admitted here. We have no decisions which militate with it; and there is no reason why barratry, which is in itself criminal and odious, should be imputed to conduct here which would not have that character in England.

"There may be violations of duty by a master, which may subject him to actions by his owners, and to suitable damages, without charging him with barratry; and it is for barratry only, according to its technical definition and meaning, that underwriters have stipulated to answer. Inferior misconduct is an affair between the owners and the master, for which the underwriters upon a policy do not undertake to indemnify; and there is no reason that they should, since they seldom, if ever, have a voice in the appointment of the master." See also Lawton v. Sun M. Ins. Co., 2 Cushing (Mass.), 500 (SHAW, Ch. J.), citing the principal case; Atkinson v. Gt. West. Ins. Co., 65 New York, 551. In the last case the Court said, "No act of the master of a vessel can be deemed barratry, unless it proceed from a criminal or fraudulent motive." But the principal case was cited and its holding approved, especially in the very learned opinion of DWIGHT, Com'r, who prefers the definition "breach of trust," given in the principal case, to that of "wilful misconduct," given in Busk v. Royal Exchange Ass. Co., 2 Barn. & Ald. 82. In the Lawton case, supra, SHAW, Ch. J., observed: "It has been held not to be necessary that there should be fraud in the sense of an intention on the part of the master to promote his own benefit at the expense of the owners, but any unlawful act of known criminality or of gross malversation operating to the prejudice of the owner is, in legal contemplation, barratry." Citing the principal case. In Kendrick v. Delafield, 2 Caines (N. Y.), 72, KENT, J., said: "I do not think it was essential to be made to appear that the fraud was committed for the benefit of the master. If the master commits a fraudulent act, in his character of master, it is barratry. 2 Marsh. 444, 452. It is a criminal breach of duty in the relation in which he stands to the owner of the ship. The person to be benefited by the barratry need not be made affirmatively to appear. It is sufficient that the act was done with a fraudulent intent, and done by the captain, in his character of captain, and in breach of his duty and relation as captain. The law will intend that it was done to the injury of the owner, until the contrary appears."

The principal case was cited and approved in Wilcocks v. Union Ins. Co., 2 Binney (Penn.), 580; 4 Am. Dec. 480, the Court observing, "It is of no consequence whether the captain has an interest of his own or not." In Crousillat v. Ball, 4 Dallas (Penn.), 294, a. D. 1803; 2 Am. Dec. 375, it was said, "If the act is done solely to benefit the owner, it does not constitute barratry;" and this is the holding of Hood's Exrs. v. Nesbitt, 2 Dallas, 140 (A. D. 1792); 1 Am. Dec. 275, the Court saying, "It is impossible to impute fraud to such disinterested conduct."

The principal case is also cited, approved, and applied analogically in Brown v. Union Ins. Co., 4 Day (Connecticut), 179; 4 Am. Dec. 204; and in Dedener v. Delaware Ins. Co., 2 Washington (U. S. Circ. Ct.), 66, it is said, "It is not essential to constitute the act of barratry that it should be to the interest of the master."

Barratry may be committed by the master in respect to cargo, although one person owns both ship and cargo and the master is supercargo. Cook v. Com. Ins. Co., 11 Johnson (N. Y.), 40, the Court citing the principal case. But barratry cannot be commited by a master who is part owner of the vessel. Wilson v. Gen. M. Ins. Co., 12 Cushing (Mass.), 360; 59 Am. Dec. 188, citing the principal case: "We are not aware of any decided case directly in point." Contra: Meyer v. Gt. West. Ins. Co., 104 California, 381; Voisin v. Com. M. Ins. Co., 62 Hun (N. Y.), 4; Phoenix Ins. Co. v. Moog, 78 Alabama, 284. See notes, 59 Am. Dec. 191. But it is immaterial that the assured owned the vessel and appointed the master and mariners. Parkhurst v. Gloucester M. F.

Ins. Co., 100 Mass. 301; 1 Am. Rep. 105.

Generally, however, if an act is done for the benefit of the owners, although through a mistaken idea on the master's part, it is not barratry." Dederer v. Delaware Ins. Co., 2 Washington (U. S. Circ. Ct.), 61.

Consumption of cargo by crew or passengers is not barratry. Duer, J., in Moses v. Sun M. Ins. Co., 1 Duer (N. Y. Super. Ct.), 169, citing the principal case.

Loss through mere error or defect of judgment or through negligence is not barratry. Wolff v. Merch. Ins. Co., 31 New Brunswick, 577.

No. 80.- KOSTER v. REED.

(K. B. 1826.)

RULE.

WHERE it is proved that a ship sailed on the voyage insured, and never arrived at the port of destination; that is primâ facie evidence of her having foundered, and of a loss by perils of the sea and a rumour that some of the crew survived does not throw the burden upon the assured to

No. 80. Koster v. Reed, 6 Barn. & Cress. 19, 20.

call them or show that endeavours had been made to procure their attendance.

Koster v. Reed.

6 Barn. & Cress. 19-23 (30 R. R. 239).

Ship never arrived. Crew saved.

Insurance. Goods. Prima facie Evidence of Loss. Rumoured to have foundered and some of the Where, in assumpsit on a policy of insurance on goods by a certain [19] ship, it was proved that she sailed on the voyage insured with the goods on board, and never arrived at her port of destination, and that a few days after her departure a report was heard at the place whence she sailed, that the ship had foundered at sea, but that the crew were saved: Held, that this was sufficient primâ facie evidence of a loss by perils of the sea, and that the plaintiff was not bound to call any of the crew, or to show that he was unable to procure their attendance.

Assumpsit on a policy of assurance on goods sent by La Vergine della Solitudine, on a voyage from Leghorn to Lisbon. The declaration averred that the policy was effected by the plaintiff as agent of Leon Taurel, that on the 9th of April, 1821, the goods insured were shipped at Leghorn, and that the vessel sailed on that day with the goods on board from Leghorn on the voyage insured, and was lost by perils of the sea. There was another count alleging a loss by barratry. Plea, the general issue. At the trial before ABBOTT, Ch. J., at the London sittings after last Trinity Term, it was proved that the vessel, with the goods insured on board, sailed from Leghorn in April, 1821, on the voyage insured, and that she never arrived at Lisbon; and a witness called by the plaintiff stated that three or four days after the vessel sailed from Leghorn he heard that she had foundered at sea, but that the crew were saved. For the defendant it was objected, that the mere fact of non-arrival did not prove a loss by perils of the sea or by barratry, and that if the evidence last stated were resorted to, it was incumbent on the plaintiff to call some of the crew, or to show that he had ineffectually endeavoured to procure their attendance. The LORD CHIEF JUSTICE overruled the objection, and summed up the whole of the evidence to the jury, who found a verdict for the plaintiff; and now

Barnewall moved for a rule nisi for a new trial.

was not in this case any evidence of a loss by

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There

perils [* 20]

of the sea or by barratry. As soon as it appeared that the

No. 80. Koster v. Reed, 6 Barn. & Cress. 20, 21.

crew survived the loss of the ship, it was incumbent on the plaintiff to call them. [BAYLEY, J.-The evidence that the crew survived was merely hearsay evidence, and may be laid out of the case.] Then there was nothing to prove the loss, except the fact of non-arrival at Lisbon. It may be conceded that non-arrival after so long a period had elapsed proved a loss of some sort, but it did not prove a loss by the perils mentioned in the declaration. In every case to be found in the books where non-arrival has been relied on to prove a loss by perils of the sea, the plaintiff went one step further, and proved that the ship had never been heard of after a certain period, and then it was held that, inasmuch as if the crew had survived they would probably have given some tidings of the vessel, it was to be presumed that the vessel and all on board perished at sea. Green v. Brown, 2 Str. 1199, Newby v. Read, Park Ins. 106, Twemlow v. Oswin, 2 Camp. 85 (11 R. R. 670), Houstman v. Thornton, Holt, N. P. 242 (17 R. R. 632), all proceeded upon this ground; in each of them it was proved that the vessel had never been heard of; and the Ordonnance de la Marine, Liv. 3, T. 6, des Assurances, art. 58, is to the same effect: "Si l'assuré ne reçoit aucune nouvelle de son navire, il pourra, après l'an expiré, (à compter du jour du départ pour les voyages ordinaires,) et après deux ans (pour ceux de long cours), faire son délaissement aux assureurs, et leur demander paiement, sans qu'il soit besoin d'aucune attestation de la perte." Valin, in his commentary on this article, after observing that the same rule is laid down in Guidon and other books, observes, that the assured cannot abandon if the assurers or any third persons have within the speci[21] fied time received intelligence of the vessel. See Valin's Commentary, Rochelle edit., 1766, vol. ii. p. 141. But, secondly, the evidence of the witness, who said he heard of the loss, and that the crew survived, must be taken into consideration. The plaintiff tendered it, and it was not objected to; the defendant, therefore, is entitled to the benefit of it now, especially as the LORD CHIEF JUSTICE left it to the consideration of the jury. It must be taken then that the crew survived the loss of the vessel, and, that fact having been established, the plaintiff was bound to call some of them, or to account for their absence, he did not otherwise give the best evidence that the nature of the case admitted, and the evidence which he had before given ought not, under such circumstances, to have been left to the jury. Williams v. East

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